HomeMy WebLinkAboutRes No 1576PLANNING COMMISSION RESOLUTION NO. 1576
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING:
TO THE CITY COUNCIL APPROVAL OF A D7:BPOSI:TLON
AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
PALM DESERT AND THE WILLIAMS DEVELOPMENT
CORPORATION CONCERNING THE SALE BY THE CITY OF
THREE ACRES OF REAL PROPERTY TO WILLIAMS
DEVELOPMENT CORPORATION TO FACILITATE
CONSTRUCTION OF A PREVIOUSLY APPROVED
AFFORDABLE SEVENTY-TWO UNIT SENIOR HOUSING
APARTMENT PROJECT (PP/CUP 89-18) LOCATED AT
73-600 CATALINA WAY, PALM DESERT, CALIFORNIA.
WHEREAS, the Planning Commission of the City of Palm Desert,
California did on the 25th day of June, 1992 hold a duly noticed
public hearing to consider a Disposition and Development Agreement
between the City of Palm Desert and Williams Development
Corporation which provides for the sale by the City of three acres
of real property to the developer for the purpose of construction
of a previously approved affordable seventy-two unit senior housing
apartment project (PP/CUP 89-18) proposed to be located 73-600
Catalino Way, Palm Desert, California;
WHEREAS, at said public hearing, upon hearing and considering
all testimony and arguments, if any, of all interested persons
desiring to be heard, said Planning Commission did find the
following facts and reasons to exist to justify a recommendation of
approval:
1. The proposed Disposition and Development Agreement is
consistent with the goals of providing affordable senior citizen
housing as described in the City of Palm Desert Housing Element,
Palma Village Specific Plan and the Senior Housing Overlay;
2. The proposed project is an appropriate use of the senior
housing in lieu fee fund;
3. The proposed Disposition and Development Agreement
provides the City with sufficient security to protect the City's
financial interest in the project;
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of
the City of Palm Desert, California as follows:
1. That the above recitations are true and correct and
constitute the findings of the Planning Commission in this case;
2. That the Disposition and Development Agreement attached
hereto as Exhibit "A" is hereby recommended for approval to the
City Council.
DSP24104
PLANNING COi ii iISSION RESOLUTION NO. 1576
PASSED, APPROVED, and ADOPTED at the meeting of the Palm
Desert Planning Commission held this 25th day of June, 1992 by the
following vote, to wit:
AYES: Downs, Jonathan, Richards, Spiegel, Whitlock
NOES: None
ABSTAIN: None
ABSENT: None
CITY. OF PALM DESERT
PLANNING COMMISSION
By: A/L,t-e 12ta4er/
Carol Whitlock, Chairman
ATTEST:
Ramon A. Diaz, ec g' ary
DSP24104 - 2 -
DISPOSITION AND DEVELOPMENT AGREEMENT
This Disposition
dated as of June 25
City of Palm Desert, a
G. Williams Development
"Developer").
This
facts:
A.
functions
the State
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and Development Agreement ("Agreement"),
, 1992, is entered into by and between the
municipal corporation ("the City"), and E.
Corporation, a California corporation, (the
RECITALS
Agreement is entered into with reference to the following
City is a municipal corporation, exercising governmental
and powers, and organized and existing under the Law of
of California.
B. The Developer intends to develop an apartment complex of
72 units on certain real property defined herein as the Property.
The Property is currently owned by the City. It is the intent of
the Parties that the City shall sell the Property to the Developer
as provided in this Agreement upon satisfaction of certain
conditions precedent.
C. The principal objective hereof is to create an affordable
housing inventory available to be leased to senior citizens of very
low or low income who but for this program might not be able to
obtain housing at affordable cost, and to reach that objective the
parties hereto will require an extraordinary level of cooperation
with each other, which level of effort the parties hereto covenant
to provide.
D. Construction of the Improvements (as hereinafter defined)
constituting the Project pursuant to this Agreement is in the best
interests of the City, and the health, safety and welfare of the
residents and taxpayers of the City, and is in accord with the
public purposes and provisions of applicable state and local laws.
E. A material inducement to the City to enter into this
Agreement is the agreement by the Developer to construct the
Improvements within a limited period of time, and the City would be
unwilling to enter into this Agreement in the absence of an
enforceable commitment by the Developer to construct the
Improvements within such period of time.
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NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS.
Section 1.1. Definitions. The following terms as used in
this Agreement shall have the meanings given unless expressly
provided to the contrary:
1.1.1. Agreement
Development Agreement.
means this Disposition and
1.1.2. Certificate of Completion means a certificate
in the form attached hereto as Exhibit "D", to be provided by the
City to the Developer upon satisfactory completion of the
Improvements as provided in Section 3.14.
1.1.3. City means the City of Palm Desert, a
municipal corporation.
1.1.4. Closing has the meaning defined in Section
2.3.2.
1.1.5. Closing Date means the date upon which the
City by grant deed shall convey title to the Property to the
Developer and such grant deed or deeds are recorded in the
Official Records of the County of Riverside.
1.1.6. Construction Contract has the meaning defined
in Section 3.9.
1.1.7 Conventional Senior Housing means rental or
ownership units designed and restricted to healthy, ambulatory
senior citizens who remain capable of performing most activities
associated with independent daily life. Other than having smaller
units and possessing design features and recreational amenities
more compatible with a less active lifestyle, conventional senior
housing shall resemble standard housing.
1.1.8. Default has the meaning defined in
Section 6.1.
1.1.9. Developer means E. G. Williams Development
Corporation, a California corporation controlled by Elizabeth G.
Williams. The principal office of the Developer for purposes
of this Agreement is 42-600 Cook Street, Suite 135, Palm Desert,
Ca. 92260.
1.1.11.
Insurance Company.
this Agreement is
Escrow has the meaning defined in Section 2.3.
Escrow Holder means First American Title
The office of the Escrow Holder for purposes of
3625 14th Street, Riverside, California 92502.
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1.1.12. General Contractor has the meaning defined in
Section 3.9.1.
1.1.13. Hazardous Materials shall include, but not be
limited to, substances defined as "hazardous substances,"
"hazardous materials," "pollutant or contaminant," "imminently
hazardous chemical substance or mixture," "hazardous air
pollutant," "toxic pollutant," "hazardous waste," "extremely
hazardous waste" or "toxic substances" in any of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. S9601, et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. S1801, et seq.; The Resource
Conservation and Recovery Act, 42 U.S.0 S6901, et seq.; and those
substances defined as "hazardous substances" in S25316 of the
California Health & Safety Code; and in the regulations adopted and
publications promulgated pursuant to said laws ("Hazardous
Materials Laws").
1.1.14. Improvements means the apartment complex of 72
dwelling units, all ancillary improvements, and all infrastructure
necessary for the utilization of such dwelling units as an
apartment complex, including, streets, curbs, gutters, storm
drains, utilities, and parking, and all parks, ancillary
improvements, apparatus and equipment, as generally depicted on the
Precise Plan (as defined below).
1.1.15 Very Low Income Senior Citizen Household means
senior citizen households whose gross income does not exceed 45% of
the median income for one and two person households for Riverside
County based upon financial and demographic data received from the
United States Department of Housing and Urban Development (HUD) or
its successor agency ("median income"). This information is
included in Exhibit E and shall be updated automatically as current
data is obtained from HUD. If in the future more relevant data is
made available specifically applicable to senior citizens by (HUD)
or other officially recognized agencies, such data shall become the
basis of this Agreement.
1.1.16 Low Income Senior Citizen Household means
senior citizen households whose income does not exceed 60% of the
median income.
1.1.17. party means any party to this Agreement. The
"Parties" shall be all parties to this Agreement.
1.1.18. plans and Specifications means the latest dated
Final Construction Drawings (as defined in Section 3.3), final
certified soil compaction report from the soils engineer, and final
elevations per approved grading plan for construction of the
Improvements, as approved by the City.
1.1.19. Precise Plan means Precise Plan/Conditional Use
Permit 89-18, approved by the Planning Commission of the City of
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Palm Desert on July 5, 1989, by Resolution No. 89-18, as amended,
which plan is incorporated herein by this reference.
1.1.20. project means the construction of the
Improvements on the Property in accordance with the Precise Plan
and the Plans and Specifications.
1.1.21. property is that certain real property
described in Exhibit "A-1" attached hereto and incorporated herein
by this reference, and depicted on the Site Plan attached hereto as
Exhibit "A-2", attached hereto and incorporated herein by this
reference.
1.1.22. purchase Price has the weaning defined in
Section 2.1.
1.1.23. Schedule of Performance means the schedule
attached hereto as Exhibit "C" to this Agreement, which is
incorporated herein by this reference.
1.1.24. Senior Citizen Household means a maximum two
(2) person household of which all members are sixty-two (62) years
of age or older.
1.1.25. Transfer has the meaning defined in Section
4.1.
1.1.26 Useful Life of the Project means the greater of
thirty (30) years or the period of time which the Project remains
habitable, with reasonable care and maintenance.
ARTICLE 2. SALE OF THE PROPERTY
Section 2.1. Sale to the Developer. Upon satisfaction (or
waiver by the City) of the conditions described in Section 2.7, the
City agrees to sell the Property to the Developer, and the
Developer agrees to purchase the Property from the City, for the
sum of $1.00 (the "Purchase Price"), on the terms and conditions
hereinafter set forth. The Purchase Price shall be paid in cash on
the Closing Date.
Section 2.2. Evidence of Financing.
2.2.1. On or before the date set forth therefor in the
Schedule of Performance, the Developer shall submit to the City,
for approval by the City Manager and/or the City Manager's
designee, evidence of construction and take-out financing for the
Project. Evidence of construction financing shall include, at a
minimum, the Developer's proforma and line -item budget showing that
estimated acquisition and development costs match adequate
financing (including the source of financing), a copy of a
commitment obtained by the Developer for a mortgage loan or loans
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to assist in financing the hard and soft costs of constructing the
Improvements, financial statements, and other evidence satisfactory
to the City of sources of loans or capital, sufficient to
demonstrate that the Developer has adequate funds to cover
development and construction costs of the entire Project (including
hard and soft costs), or to cover the difference, if any, between
the amount of the development and construction costs and the amount
of construction loan financing authorized by a mortgage loan. For
purposes of this Agreement, a "take-out financing" commitment may
include an agreement by a financially capable third party to
purchase the entire Project upon its completion at a price equal at
least to the hard and soft costs of developing the Project. The
terms and conditions of such commitments, and the identity of the
construction lender itself, shall be subject to approval by the
City Manager and/or the City Manager's designee, which approval may
be granted or withheld in the City Manager's and/or the City
Manager's designee's reasonable discretion. In particular, the
construction loan commitment shall provide for a sufficient term of
the loan necessary for construction of all Improvements consistent
with the Schedule of Performance, plus additional time for
reasonable delays, and shall not have discretionary contingencies,
nor shall it contain an appraisal contingency, but it may include
customary contingencies outside the lender's or Developer's control
(such as a contingency of the provision of the funds for the
take-out loan or purchase commitment). The Developer's failure to
deliver such commitments by the dates set forth therefor in the
Schedule of Performance shall be a default hereunder.
2.2.2. The City shall reasonably cooperate with the
Developer and its construction lender in connection with the
construction loan to be obtained by the Developer to finance
development of the Project. The City shall provide such reasonable
information and execute such reasonable documents and instruments
as may be required by such construction lender, provided such
documents or instruments do not increase the duties and obligations
of the City under this Agreement, or otherwise prejudice the City.
Section 2.3. gscrow.
2.3.1. Opening of Escrow. Within five (5) business
days after the City's execution of this Agreement, the Developer
and the City shall cause an escrow ("the Escrow") to be opened with
Escrow Holder for the sale of the Property by the City to the
Developer. The Parties shall deposit with the Escrow Holder a fully
executed duplicate original of this Agreement, which shall serve as
the escrow instructions for the Escrow. The City and the Developer
shall provide such additional escrow instructions as shall be
necessary and consistent with this Agreement. The Escrow Holder is
authorized to act under this Agreement, and to carry out its duties
as the Escrow Holder hereunder.
2.3.2. Close of Escrow. "Close of Escrow" or
"Closing" means the date Escrow Holder causes the deed in favor
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of the Developer to be recorded in the Official Records of the
County of Riverside and delivers the Purchase Price to the
Developer. Escrow shall close upon satisfaction of all conditions
precedent set forth in Section 2.7, below.
Section 2.4. Condition of Title: Title Insurance.
2.4.1. At the Closing the City shall convey title to
the Property to the Developer by grant deed substantially in the
form attached hereto as Exhibit B and incorporated herein by this
reference. The City shall convey title to the Developer subject
to all title exceptions affecting the Property at the time
Property is conveyed to the Developer and any other matters
consented to by the Developer or which arise out of the actions
of the Developer or the Developer's agents.
2.4.2. At the Closing, City shall, at the
Developer's sole cost and expense, deliver to the Developer an
ALTA Joint Protection Policy of Title Insurance, issued by First
American Title Insurance Co., in the minimum amount of the
construction loan, insuring that title is free and clear of all
liens, easements, covenants, conditions, restrictions, and other
encumbrances of record, except as permitted hereunder.
Section 2.5. Escrow and Title Charges. The Developer
shall be solely responsible for all title insurance premiums,
recording fees, documentary and local transfer taxes, and escrow
fees and charges arising hereunder.
Section 2.6. Condition of the Property. The Property
shall be conveyed from the City to the Developer in "as is"
condition, and the Developer hereby releases City the from any
and all liability or responsibility for the physical condition of
the Property or any portion thereof, including without limitation
any liability or costs that might be incurred by the Developer by
reason of the presence of Hazardous Materials on the Property. If
the Property is not in a condition suitable for the intended use
or uses, then it is the sole responsibility and obligation of the
Developer to take such action as may be necessary to place the
Property in a condition suitable for development of the Project
thereon.
Section 2.7. Conditions to Conveyance. The obligation of
the City to convey the Property to the Developer under this
Article 2 shall be subject to the satisfaction or waiver of each
of the following conditions.
2.7.1. The concurrent recordation and closing of the
Developer's construction loan.
2.7.2. The issuance of the binding and enforceable
take-out financing commitment, which may include a commitment of a
financially capable third party to purchase the Property at a
es~
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price equal to all hard and soft costa to be incurred in the
development and construction of the Property.
2.7.3. Issuance of a commitment for delivery of the
bonds described in Section 3.9.
The Parties agree that if the foregoing conditions are not waived
or satisfied within six (6) months of the date of this Agreement,
then the Developer shall be in default hereunder.
Section 2.8. $scrow Holder
2.8.1. Escrow Holder is authorized to:
2.8.1.1. Pay and charge the Developer for any fees,
charges and costs payable under this Article. Before such
payments are made, the Escrow Holder shall notify the City and
the Developer of the fees, charges, and costs necessary to close
under the Escrow;
2.8.1.2. Disburse funds and deliver the deeds and
other documents to the parties entitled thereto when the
conditions of the Escrow have been fulfilled by the City and
the Developer; and
2.8.1.3. Record any instruments delivered through
the
Escrow, if necessary or proper, to vest title in the Developer in
accordance with the terms and provisions of this Agreement.
2.8.2. If the Escrow is not in condition to close
before the time for conveyance established in Section 2.7, either
party who then shall have fully performed the acts to be performed
before the conveyance of title may, in addition to all other legal
or equitable remedies, in writing, terminate this Agreement in the
manner hereinafter set forth, and demand the return of its money,
papers or documents. Thereupon all obligations and liabilities of
the parties under this Agreement shall cease and terminate in the
manner hereinafter set forth. If neither the City nor the Developer
shall have fully performed the acts to be performed before the time
for conveyance established in the Schedule of Performance, no
termination or demand for return shall be recognized until ten (10)
days after Escrow Holder shall have mailed copies of such demand to
the other Party at the address of its or their principal place or
places of business. If any objections are raised within the ten-day
period, Escrow Holder is authorized to hold all money, papers and
documents with respect to the Property until instructed in writing
by both the City and the Developer or upon failure thereof by a
court of competent jurisdiction. If no such demands are made, the
Escrow shall be closed as soon as possible.
2.8.3. Any amendment of these escrow instructions shall
be in writing and signed by both the City and the Developer. At the
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time of any amendment, Escrow Holder shall agree to carry out its
duties as escrow holder under such amendment.
2.8.4. All communications from the Escrow Holder to the 410
City or the Developer shall be directed to the addresses and in the
manner established in Section 7.3 of this Agreement for notices,
demands and communications between the City and the Developer.
2.8.5. The liability of the Escrow Holder under this
Agreement is limited to performance of the obligations imposed upon
it under this Article 2, and any amendments hereto agreed upon by
Escrow Holder.
ARTICLE 3. DEVELOPMENT OF THE PROPERTY
Section 3.1. Development of the Property. The Developer
shall construct the Improvements on the Property in accordance with
the Precise Plan for development approved by City and any other
conditions of approval of the Plans and Specifications, and all
terms, conditions and requirements of this Agreement, including the
Schedule of Performance, it being agreed that construction,
improvements in accordance with the Precise Plan and all conditions
of approval, and all terms hereof, is of the essence of this
Agreement in view of the need for the Improvements within the City.
In connection with such construction, the Developer shall comply
with all requirements of the City's Municipal Code. The Project
shall be completed in accordance with the Schedule of Performance. .r
Section 3.2. City's Richt to Review Plans and
Specifications. In connection with construction
of the Project, the Developer shall comply in all respects with
plans and specifications approved by the City in accordance with
this Agreement. The Developer shall also prepare plans and
specifications that shall comply with the requirements of the City's
Municipal Cods, and any and all applicable federal, state and local
laws, rules and regulations. The City shall have the right to
review and approve all plans and specifications for the Project, as
hereinafter provided, so as to ensure that the Improvements are, in
the City's sole discretion, being constructed to the quality
described in the Precise Plan.
Section 3.3. Final Construction Drawings and Related
Documents. Developer shall prepare and submit
to the City, for review and written approval by the City, Final
Construction Drawings, which shall include complete construction
documents, site development elevations, final landscaping and finish
grading plans, and related documents. Final Construction Drawings
are hereby defined as those in sufficient detail necessary to obtain
building permits.
Section 3.5. Approval of Plans. The City shall approve or
disapprove the Final Construction Drawings, in a timely fashion. Any
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disapproval shall state in writing, the reasons for disapproval. The
Developer upon receipt of a disapproval, shall revise such portion
of the plans, drawings or related documents in a canner that
satisfies the reasons for disapproval and shall resubmit such
revised portions to the City as soon as possible after receipt of
the notice of disapproval. The City shall approve or disapprove such
revised portions in the same manner as provided in this Agreement
for approval or disapproval of plans, drawings, and related
documents initially submitted to the City. Any items submitted to
and approved by the City shall not be subject to subsequent
disapproval.
Section 3.6. Changes in Construction Drawings. If the
Developer desires to make any changes in the Final Construction
Drawings and related documents (other than minor changes required by
field conditions) after their approval by the City, the Developer
shall submit the proposed changes to the City for approval. If
approved, the City shall notify the Developer of such approval in
writing within 14 days after submission to the City. Any proposed
change in the Final Construction Drawings shall, in any event, be
deemed disapproved by the City unless approved, in whole or in part,
by written notice thereof by the City to the Developer within such
14 day period. The Developer, upon disapproval, shall revise such
portions as are rejected and resubmit them to the City.
Section 3.7. Cost of Construction. The cost of the Project,
including the costs for developing and constructing the
Improvements, shall be borne by the Developer.
Section 3.8. Construction Schedule
3.8.1. The Developer shall begin and complete all
construction of the Project, within the times specified in the
Schedule of Performance or such reasonable extension of said dates
as may be granted by this Agreement or by the City. After
commencement of construction, the Developer shall diligently pursue
completion of the Project. In any event, the Improvements
constituting the Project shall be completed no later than the date
set forth in the Schedule of Performance. The Schedule of
Performance is subject to revision from time to time as mutually
agreed upon in writing between the Developer and the City.
3.8.2. The Developer shall give written notification to
the City prior to the start of construction. During the period of
construction, but in no event less often than once per month, the
Developer shall submit to the City written reports of the progress
of the construction. The report shall be in such form and detail as
to inform the City fully of the status of construction, and shall
include a reasonable number of photographs (if so requested by the
City) taken since the last report by the Developer. The Developer
shall report to the City on the construction progress and on the
Developer's compliance with the plans and specifications, according
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to which the Developer agrees that all construction shall be
performed.
Section 3.9. Construction Contract(s) and Bond.
3.9.1. The construction of the Improvements shall be
accomplished by a written contract or contract(s) ("Construction
Contract(s)"), which Construction Contract(s) shall obligate
reputable and financially responsible contractors ("Contractor(s)"),
licensed in California, and experienced in completing the type of
improvements contemplated by this Agreement, to commence and
complete the construction of such Improvements in accordance with
this Agreement and all applicable law. The Construction Contract(s)
shall be guaranteed maximum cost contract(s) insuring construction
of the Improvements for a fixed price, subject to such reasonable
adjustments as are customarily allowed with respect to construction
contracts.
3.9.2. Prior to commencing any work the Developer shall
secure and deposit with the City a Performance Bond and a Labor and
Material Payment Bond (in the form of AIA form A311 or A312) , issued
by a surety acceptable to the City in the City's reasonable
discretion, securing the faithful performance by the Contractor(s)
of the completion of construction of the Improvements free of all
liens and claims, within the time provided in the Schedule of
Performance. Such bonds shall be in an amount equal to one hundred
percent (100%) of the Construction Contract(s). Such construction
bonds shall name the City as a co -obligee. Such construction bonds
shall be issued by a company acceptable to the City and listed in
the current United States Treasury Department circular 570 and
otherwise within the underwriting limits specified for that company
in such circular.
Section 3.10. Local. State and Federal Laws. The Developer
shall carry out the construction of the Improvements in conformity
with all applicable laws, including all applicable federal and state
occupation, safety and health standards. The Developer represents
and warrants that all of the Improvements to be constructed by the
Developer shall be constructed in compliance with the current City
and State of California standards and laws, and in compliance with
all laws ac regulations with respect to the payment of prevailing
wages, to the extent applicable to the Developer, if any. The
foregoing does not necessarily require the payment of union wages or
scale. In performing this Agreement, the Developer is an independent
contractor and not the agent of the City. The City shall not have
any responsibility whatsoever for payment to any contractor or
supplier of the Developer. Notwithstanding the foregoing, the
Developer understands that it may be subject to certain public
contract requirements as provided by law, and to the extent that the
Developer is subject to such requirements, the Developer shall
comply with all such requirements.
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Section 3.11. City and Other Governmental City Permits and
IWprovals. Before commencement of construction or development of
any work of improvement, the Developer shall (at the Developer's
expense) secure, or cause to be secured, any and all permits which
may be required by the City or any other governmental agency having
jurisdiction over such construction or development.
Section 3.12. Anti -discrimination Durina Construction. The
Developer for itself and its successors and assigns agrees that it
shall not discriminate against any employee or applicant for
employment because of age, sex, marital status, race, handicap,
color, religion, creed, ancestry, or national origin in the
construction of the Improvements constituting the Project.
Section 3.13. Taxes, Assessments Encumbrances and Liens. The
Developer shall pay when due all real property taxes and assessments
assessed or levied on the Property and the Project. Nothing herein
contained shall be deemed to prohibit the Developer from contesting
the validity or amounts of any tax assessment, encumbrance or lien,
or to limit the remedies available to the Developer in respect
thereto.
Section 3.14. Certificate of Completion.
3.14.1. After completion of construction and development
by the Developer of any units or ancillary improvements constituting
the Project, the City shall, promptly following written request by
the Developer therefor, furnish the Developer with a Certificate of
Completion in the form attached hereto as Exhibit D for such
completed Improvements. After issuance of a Certificate of
Completion for such completed Improvements, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest
in the portion of the Property described in the Certificate of
completion shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement
as to such portion of the Property, except that such party shall be
bound by any covenants, conditions or restrictions contained in the
grant deed by the City to the Developer or other instruments made in
accordance with the provisions of this Agreement. Neither the City
nor any 'other person, after recordation of a Certificate of
Completion, shall have any rights, remedies or controls that it
would otherwise have or be entitled to exercise under this Agreement
as to such portion of the Property, as a result of a default in or
breach of any provision of this Agreement; except that said
Certificate of Completion shall have no effect on the Developer's
obligations under any other separate instrument signed by the
Developer in favor of the City, nor shall it have any effect on the
Developer's obligations under the indemnities provided herein, nor
shall it have any effect on portions of the property for which a
Certificate of Completion has not been issued.
3.14.2. If the City refuses or fails to furnish a Certificate
of Completion after written request from the Developer, the City
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shall, within fourteen (14) days after the written request, provide
the Developer with a written statement of the reasons the City
refused or failed to furnish such Certificate of Completion. The
statement shall also contain the City's opinion of the action the
Developer gust take to obtain such Certificate of Completion. If the u
reason for such refusal is confined to the immediate availability of
specific items or material for landscaping, and the estimated cost
of completion does not exceed $10,000.00, then the City will issue
its Certificate of Completion upon the posting by the Developer with
the City of a bond or other collateral in an amount representing the
fair value of the work not yet completed, but posting such bond
shall not excuse the Developer from obligation to complete the work.
3.14.3. Such Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation of the
Developer to any holder of a mortgage, trust deed or other security
instrument. Such Certificate of Completion shall not be construed as
a notice of completion as described in California Civil Code Section
3093.
ARTICLE 4. LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS
Section 4.1. Limitation As To Transfer of the Property and
Assignment of Agreement. Prior to recordation by the City of the
Certificate of Completion, the Developer shall not, except as
permitted by this Agreement, assign or attempt to assign this
Agreement or any right herein, nor sell, transfer, convey, lease,
mortgage, encumber, or hypothecate ("Transfer") the whole or any
part of the Property without the prior written approval of the City.
The City may grant or withhold such consent in its sole and absolute
discretion. The Developer acknowledges that the identity of the
Developer is of particular concern to the City, and it is because of
the Developer's identity that the City has entered into this
Agreement with the Developer. No voluntary or involuntary successor
in interest of the Developer shall acquire any rights or powers
under this Agreement except that the Developer may, with the prior
approval of the City, which approval may be granted or withheld in
the City's reasonable discretion, assign its rights and obligations
hereunder to a successor partnership in which Elizabeth G. Williams,
or a corporation formed and controlled by her and in which she
controls at least 2/3rds of the voting stock thereof, is the
Managing General Partner or Co -Managing General Partner with one
other managing partner, with principal managerial control over the
Project, and the other partner(s) is(are) non -managing general
partner(s) or limited partner(s). No transfer or assignment
hereunder shall be deemed to release E. G. Williams Development
Corporation, from the obligations of the Developer hereunder. This
prohibition shall not be deemed to prevent the (i) granting of
easements or permits to facilitate the development of the Property,
or (ii) any mortgage or deed of trust permitted by this Agreement.
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Section 4.2. Security Financing: Riaht of Holders.
4.2.1. No Encumbrances Except Mortaages. Deeds of
Trust or other Conveyance for Financing For
Development.
4.2.1.1. Notwithstanding Section 4.1 or any other
provision herein to the contrary, mortgages, deeds of trust or any
other form of encumbrance or conveyance required for any reasonable
method of financing are permitted, but only with the prior written
approval of the City (which approval shall not unreasonably be
withheld), and only for the purpose of securing loans of funds to be
used for financing the direct and indirect costs of the Project
(including reasonable and customary developer fees, loan fees and
costs, and other normal and customary project costs).
4.2.1.2. The words "mortgage" and "deed of trust" as
used herein include all other appropriate modes of financing
commonly used in real estate acquisition, construction and land
development.
4.2.2. Notice of Default to Mortgage. Deed of Trust or
Other Security Interest Holders: Right to Cure.
Whenever the City shall deliver a notice or demand
to the Developer with respect to any breach or default by the
Developer in completion of construction of the Improvements, the
City shall at the same time deliver a copy of such notice or
demand to each holder of record of any first mortgage, deed of
trust or other security interest authorized by this agreement who
has previously made a written request to the City for special
notice hereunder. No notice of default to the Developer shall be
effective against any such holder unless given to such holder as
aforesaid. Such holder shall (insofar as the rights of the City
are concerned) have the right, at its option, within 30 days after
receipt of the notice, to cure or remedy any such default and to
add the cost thereof to the security interest debt and the lien of
its security interest. If such default shall be a default which
can only be remedied or cured by such holder upon obtaining
possession, such holder shall seek to obtain possession with
diligence and continuity through a receiver or otherwise, and
shall remedy or cure such default within a reasonable period of
time as necessary to remedy or cure such default of the Developer.
4.2.3. Noninterference with Holders.
The provisions of this Agreement do not licit the right
of holders to foreclose or otherwise enforce any mortgage, deed of
trust, or other security instrument encumbering the Property and
the improvements thereon, or the right of holders to pursue any
remedies for the enforcement of any pledge or lien encumbering the
Property; provided, however, that in the event of a foreclosure
sale under any such mortgage, deed of trust or other lien or
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encumbrance, or sale pursuant to any power of sale contained in
any such mortgage or deed of trust, the purchaser or purchasers
and their successors and assigns, and the Property, shall be, and
shall continue to be, subject to all of the conditions,
restrictions and covenants of this Agreement and all documents and
instruments recorded pursuant hereto.
ARTICLE 5. USE OF THE PROPERTY
Section 5.1. Uses. The Developer covenants and agrees for
itself, and its successors and its assigns, that the Developer,
such successors, and such assignees shall use the Property and
every part thereof only for the construction and operation of the
Project in accordance with the Precise Plan, and for no other
purpose, said covenant to use the Property for this use shall run
with the land for the benefit of the City for the purpose of
protecting the interest of the community, and shall be binding on
the Developer and all successors in interest of the Developer. The
City shall have the right, if such covenants are breached, to
exercise all rights and remedies and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce
the curing of such breaches to which it or any other beneficiaries
of such covenants may be entitled, including, without limitation,
specific performance, damages, and injunctive relief.
Specifically, Developer covenants and agrees that:
5.1.1. Conventional Senior Housing. All apartments in
the Project shall be offered as Conventional Senior Housing.
5.1.2. Affordable Units. The Project shall contain
affordable apartments as follows:
5.1.2.1. Developer shall reserve of the total
apartments for rent 15% (12 apartments) for Very Low Income Senior
Households and 15% (12 apartments) for Low Income Senior
Households. Such units shall be referred to as "Affordable Units"
for purposes of this Agreement.
5.1.2.2. The maximum initial rents charged, the
maximum income levels and the apartment mix for the Affordable
Units, during the first twelve (12) months following completion of
the Project, shall be as follows:
Maximum
# of Annual
Unit Type Units Income Monthly Rent
Studio (Very Low Income) 8 $11,340 $233
Studio (Low Income) 8 $15,120 $328
1 Bdrm (Very Low Income) 4 $12,996 $304
1 Bdrm (Low Income) 4 $17,328 $383
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5.1.2.4. The Affordable Units shall be of a
quality and design indistinguishable from the other apartment
units in the Project, and shall be evenly distributed throughout
the Project. The Affordable Units shall be periodically rotated
as vacancies permit.
5.1.3. The Developer may provide, at the tenant's
option, optional care services for an additional charge. This
agreement does not restrict or limit optional care services or
charges.
5.1.4. Developer or its assigned management agent shall
be responsible for determining the eligibility of prospective
tenants. Prior to opening the apartment project, Developer shall
submit for approval a plan to City describing the procedure for
determining and enforcing eligibility requirements. This plan
shall include annual qualification by all eligible households and
shall be subject to review and approval by City. The City or its
assigned agent may request an audit to determine compliance with
all affordable housing provisions of this Agreement. Audit shall
be requested as the City deems necessary and shall be at the
Developer's expense.
5.1.5. On each anniversary date of the date of
completion of the Project, the rent for each unit shall be
adjusted in accordance with the Affordable Housing Income and Rent
Schedule percentage increase or decrease issued by the HUD
relative to the initial rental term hereunder for each subsequent
year hereof.
5.1.6. Affordable Units Regerved. Developer or its
successors in interest shall reserve the Affordable Units as set
forth in this Agreement for the Useful Life of the Project.
5.1.7. Age limits. The minimum age for all Project
occupants shall be sixty-two (62) years.
Section 5.2. $aintenance of the Property. After completion
of the Project, the Developer, and the Developer's successors and
assigns, shall maintain the Project (including landscaping) in the
manner of first class residential developments.
Section 5.3. Obliaation to Refrain from Discrimination.
The Developer covenants and agrees for itself, its successors and
assigns, and for every successor in interest to the Property or
any part thereof, that there shall be no discrimination against or
segregation of any person, or group of persons, on account of sex,
marital status, handicap, race, color, religion, creed, national
origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, and the Developer
(itself or any person claiming under or through the Developer)
shall not establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
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location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees of the Property or any portion
thereof.
Section 5.4. Form of Nondiscrimination and Nonsegreaatioa
Clauses. The Developer shall refrain from restricting the rental,
sale or lease of the Property or any portion thereof, on the basis
of sex, handicap, marital status, race, color, religion, creed,
ancestry or national origin of any person. All deeds, leases or
contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
5.4.1. 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 sex, marital status, race, handicaps color,
religion, creed, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the grantee himself or any person
claiming under or through him, establish or permit any such
practice or practices of discrimination 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."
5.4.2. 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 sex,
marital status, race, handicap, color, religion, creed, national
origin or ancestry, in the leasing, subleasing, transferring, use,
or enjoyment of the land herein leased, nor shall the lessee
himself, or any person claiming under or through his, 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.'"
5.4.3. In contracts relating to the sale or transfer of
the Property or any interest therein: "There shall be no
discrimination against or segregation of any person or group of
persons on account of sex, marital status, race, handicap, color,
religion, creed, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
land, nor shall the transferee himself or any person claiming
under or through him, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy, of tenants,
lessees, subtenants, sublessees or vendees of the land."
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Section 5.5. Zffect and Duration of Covenants.
Following development of the Project in accordance with this
Agreement and after issuance of the Certificate of Completion for
the Property, each of the rights, duties and obligations of the
Developer and the City shall be deemed to have been satisfied
under this Agreement, and the Developer and its successors in
interest to the Property shall have no further obligations with
respect to the matters provided for in this Agreement with the
exception of the following, each of which shall be set forth in
particularity in any document of transfer or conveyance by the
Developer:
5.5.1. The use and maintenance requirements set forth in
Section 5.1 and 5.2, which shall remain in effect until the
greater of thirty (30) years or the period of time which the
Project remains habitable, with reasonable care and maintenance;
5.5.2. The anti -discrimination and nonsegregation
requirements set forth in Sections 5.3 and 5.4 which shall regain
in effect in perpetuity;
5.5.3. Easements to the City, or other public agencies for
utilities existing as of the execution of this Agreement, which
shall remain in effect according to their terns;
5.5.4. The indemnities and warranties, which shall remain
in effect in perpetuity.
ARTICLE 6. EVENTS OF DEFAULT, REMEDIES AND TERMINATION
Section 6.1. Defaults --Definition.
Occurrence of any or all of the following shall
constitute a default ("Default") under this Agreement:
6.1.1. The Developer's neglect, failure or refusal to
keep in force and effect any permit or approval with respect to
construction of the Improvements or any policy of insurance
required hereunder, and the Developer's failure to cure such
breach within ten (10) calendar days after written notice from the
City of tho Developer's breach;
6.1.2. Filing of a petition in bankruptcy by or
against the Developer or appointment of a receiver or trustee of
any property of the Developer, or an assignment by the Developer
for the benefit of creditors, or adjudication that the Developer
is insolvent by a court, and the failure of the Developer to cause
such petition, appointment, or assignment to be removed or
discharged within sixty (60) days;
6.1.3. The Developer's failure to perform any
requirement or obligation of Developer set forth herein or in the
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Schedule of Performance on or prior to the date for such
performance set forth herein or in the Schedule of Performance,
and the failure of the Developer to cure or perform such
obligation or requirement within thirty (30) days after written
notice of such delinquency; or
6.1.4. The Developer's failure to commence
construction of the Improvements prior to the last date therefor
set forth in the Schedule of Performance, provided that the
Developer shall not have obtained an extension or postponement to
which the Developer may be entitled., or due to causes beyond the
Developer's control as provided in Section 7.12 hereof, and the
Developer's failure to cure such breach within thirty (30) days
after receipt of written notice from the City of the Developer's
failure to so commence construction as required herein; or
6.1.5. The Developer's failure to diligently pursue
construction of the Improvements for a period of thirty (30) days
after written notice from the City provided that the Developer
shall not have obtained an extension or postponement to which the
Developer may be entitled, or due to causes beyond the Developer's
control•as provided in Section 7.12 thereof; or
6.1.6. The Developer's failure to complete
construction of the Improvements within the time period provided
in the Schedule of Performance without having obtained an
extension or postponement to which the Developer may be entitled,
or due to causes beyond the Developer's control as provided in
Section 7.12 hereof, and the Developer's failure to cure such
breach within thirty (30) calendar days after receipt of written
notice from the City of the Developer's failure to so complete
construction as required herein; or
6.1.7. The Developer's Transfer (as defined in
Section 4.1), or the occurrence of any involuntary Transfer, of
the Property or any part thereof or interest therein in violation
of this Agreement; or
6.1.8. Any other breach of this Agreement, and the
continuance of such breach for a period of thirty (30) days after
the City has given written notice, as specified in Section 7.3
requiring it to be remedied, and stating that such notice is a
"Notice of Default" hereunder, unless such breach cannot
reasonably be remedied in thirty (30) days, in which event the
Developer shall not be in default if it commences to cure such
breach within such thirty (30) day period and diligently pursues
the cure to completion.
Section 6.2. Remedies in the Event of Default.
6.2.1. Remedies Prior to Closing Date. In the event
of a Default under this Agreement by either the Developer or the
City prior to the Closing Date, the non -defaulting Party shall,
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have the right to terminate this Agreement by delivering written
notice thereof to the defaulting Party and to Escrow Holder, and
the non -defaulting Party may seek against the defaulting Party any
available remedies at law or equity, including but not limited to
the right to receive compensatory damages or to pursue an action
for specific performance. Notwithstanding anything to the contrary
contained in this Section 6.2.1, however, if this Agreement is
terminated based on failure of the conditions set forth in Section
3.7, the environmental warranties and other indemnities shall
survive such termination.
6.2.2. Remedies of the Parties for Default After the
Closing Date and Prior to Issuance of the Certificate of
Completion. In the event of a Default under this Agreement by a
Party after the Closing Date and prior to the recordation of a
Certificate of Completion, the defaulting Party shall be liable
to the non -defaulting party for all damages and liabilities
incurred by the non -defaulting Party and the non -defaulting Party
may seek against the defaulting Party any available remedies at
law or equity, including but not limited to the right to receive
compensatory damages or to pursue an action for specific
performance.
6.2.3. Liberal Construction. The rights established
in this Article are to be interpreted in light of the fact that
the City will convey the Property to the Developer for development
and operation of the Project thereon and not for speculation in
undeveloped land or for construction of different improvements.
The Developer acknowledges that it is of the essence of this
Agreement that the Developer is obligated to complete all
Improvements comprising the Project.
Section 6.3. No Personal Liability. Except as specifically
provided herein to the contrary, no representative of the City
shall personally be liable to the Developer, or any successor in
interest of the Developer, in the event of any Default or breach
by the City, or for any amount which may become due to the
Developer, or any successor in interest, on any obligation under
the terms of this Agreement.
Section 6.4. Legal Actions.
0.4.1. Institution of Leval Actions. Any legal
actions brought pursuant to this Agreement must be instituted in
either the Superior Court of the County of Riverside, State
of California, or in an appropriate municipal court in that
County.
6.4.2. Applicable Law. The laws of the State of
California shall govern the interpretation and enforcement of
this Agreement.
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6.4.3. Acceptance of Service of Process. If any
legal action is commenced by the Developer against the City,
service of process on the City shall be made by personal service
upon the executive director or secretary of the City, or in such
other manner as may be provided by law. If any legal action is
commenced by the City against the Developer, service of process on
the Developer shall be made by personal service upon the
Developer, or in such other manner as may be provided by law,
whether made within or without the State of California.
Section 6.5. Bights 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 time or different times, of any
other rights or remedies for the same default or any other default
by the other party.
Section 6.6. Inaction Not a Waiver of Default. Except as
expressly provided in this Agreement to the contrary, 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 rights to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
ARTICLE 7. GENERAL PROVISIONS
Section 7.1. Insurance.
7.1.1. Throughout construction of the Improvements,
the Developer shall take out and maintain, at no cost or expense
to the City, with a reputable and financially responsible
insurance company reasonably acceptable to the City, comprehensive
broad form general public liability insurance, insuring the
Developer and the City against claims and liability for bodily
injury, death, or property damage arising from the use, occupancy,
condition, or operation of the Property and the Improvements
thereon, which insurance shall provide combined single limit
protection of at least $2,000,000, and include contractual
liability endorsement. Such insurance shall name the City and
their members, officers, employees, and servants, as additional
insureds.
7.1.2. Before commencement of any demolition or
construction work on the Property, or any portion thereof, the
Developer shall also procure or cause to be procured, and shall
maintain in force until completion of said work (i) "all risk"
builder's risk insurance, including coverage for vandalism and
malicious mischief, in a form and amount and with a company
reasonably acceptable to the City, and (ii) workers' compensation
insurance covering all persons employed in connection with work on
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the Property, or any portion thereof. Said builder's risk
insurance shall cover improvements in place and all material and
equipment at the job site furnished under contract, but shall
exclude contractors', subcontractors', and construction managers'
tools and equipment and property owned by contractors' and
subcontractors' employees.
7.1.3. The Developer shall also furnish or cause to
be furnished to the City evidence satisfactory to the City
that any contractor with whom it has contracted for the
performance of work on Property or otherwise pursuant to this
Agreement carries workers' compensation insurance as required by
law.
7.1.4. With respect to each policy of insurance
required above, the Developer shall furnish a certificate of
insurance countersigned by an authorized agent of the insurance
carrier on the insurance carrier's form setting forth the general
provisions of the insurance coverage. The required certificate
shall be furnished by the Developer prior to commencement of
construction of the Improvements.
7.1.5. All such policies required by this Section
shall be nonassessable and shall contain language to the effect
that (i) the policies cannot be canceled or materially changed
except after thirty (30) days' written notice by the insurer to
the City, and (ii) the City shall not be liable for any premiums
or assessments. All such insurance shall have deductibility limits
reasonably satisfactory to the City.
Section 7.2. ;ndemnity. From and after the execution of
this Agreement, the Developer hereby agrees to indemnify, defend,
protect, and hold harmless the City and any and all agents,
employees and representatives of the City, from and against all
losses, liabilities, claims, damages (including consequential
damages), penalties, fines, forfeitures, costs and expenses
(including all reasonable out-of-pocket litigation costs and
reasonable attorney's fees) and demands of any nature whatsoever,
related directly or indirectly to, or arising out of or in
connection with:
(i) the Project or the use, ownership, management,
occupancy, or possession of the Project or any part thereof
(provided, however, this clause shall apply to the Developer only
so long as the Developer holds an interest in the Property),
(ii) any breach or Default of the Developer hereunder,
(iii) any of the Developer's activities on the Property (or
the activities of the Developer's agents, employees, lessees,
representatives, licensees, guests, invitees, contractors,
subcontractors, or independent contractors on the Property),
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including without limitation the construction of any Improvements
on the Property, or
(iv) any other fact, circumstance or event related to the me
Developer's performance hereunder, or which may otherwise arise from
the Developer's ownership, use, possession, improvement, operation
or disposition of the Property,
regardless of whether such losses and liabilities shall accrue or
are discovered before or after termination or expiration of this
Agreement, except to the extent such losses or liabilities are
caused by or contributed by the negligent or intentionally wrongful
act of the City.
Section 7.3. Notices. A11 notices and demands shall be given
in writing by certified mail, postage prepaid, and return receipt
requested, or by personal delivery. Notices shall be considered
given upon the earlier of (a) personal delivery or (b) two (2)
business days following deposit in the United States mail, postage
prepaid, certified or registered, return receipt requested. A copy
of all notices shall be sent to Escrow Holder. Notices shall be
addressed as provided below for the respective party; provided that
if any party gives notice in writing of a change of name or address,
notices to such party shall thereafter be given as demanded in that
notice:
City:
with a copy to:
Developer:
Mr. Bruce Altman
City Manager
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
(Telephone: 619-346-0611)
(Fax: 619-340-0574)
Best, Best & Krieger
A Partnership including professional
corporations
39-700 Bob Hope Drive, Suite 312
P.O. Box 1555
Rancho Mirage, California 92270
Attention: Douglas S. Phillips and Michael
A. Criste
(Telephone: 619-568-2611)
(Fax: 619-340-6698)
E. G. Williams Development Corporation
42-600 Cook Street, Suite 135
Palm Desert, California 92260
(Telephone: 619-345-7541)
(Fax: 619-345-7683)
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with a copy to:
Escrow Holder:
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Best, Best & Krieger
A Partnership including professional
corporations
600 Tahquitz Way
Palm Springs, California 92262
Attention: W. Curt Ealy
(Telephone: 619-325-7264)
(Fax: 619-325-0365)
First American Title Insurance Company
3625 14th Street
Riverside, California 92502
(Fax: 714-784-7956)
Section 7.4. Broker's Commissions. The Developer represents
and warrants to the City that the Developer has used no broker,
agent, finder or other person in connection with the transaction
contemplated hereby to whom a brokerage or other commission or fee
may be payable. The City represents and warrants to the Developer
that the City has used no broker, agent, finder or other person in
connection with the transaction contemplated hereby to whom a
brokerage or other commission or fee may be payable. Each party
indemnifies and agrees to defend and hold the other harmless from
any claims resulting from any breach by the indemnifying party of
the warranties, representations and covenants in this section. The
Developer hereby freely and voluntarily waives the requirements of
Government Code Sections 7267.2(b) (1) and (2) and 7267.2(c).
Section 7.5. Construction. The Parties agree that each Party
and its counsel have reviewed and revised this Agreement and that
any rule of construction to the effect that ambiguities are to be
resolved against the drafting Party shall not apply in the
interpretation of this Agreement or any amendments or exhibits
thereto.
Section 7.6. Interpretation. In this Agreement the neuter
gender includes the feminine and masculine, and singular number
includes the plural, and the words "person" and "party" include
corporation, partnership, firm, trust, or association where ever
the context so requires.
Section 7.7. Time of the Essence. Time is of the essence
of this Agreement.
Section 7.8. Conflicts of Interest. No member, official or
employee of the City shall have any direct or indirect interest in
this Agreement, nor participate in any decision relating to this
Agreement which is in violation of applicable law.
Section 7.9. Warranty Against Payment of Consideration for
Agreement. The Developer warrants that it has not paid or given,
and will not pay or give, to any third person, any money or other
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consideration for obtaining this Agreement, other than normal
costs of conducting business and costs of professional services
such as architects, engineers and attorneys.
Section 7.10. Attorneys' Fees. If either Party brings an
action to enforce the terms hereof or declare its rights
hereunder, the prevailing Party in any such action shall be
entitled to its reasonable attorneys' fees to be paid by the
losing Party as fixed by the court. If either the City or the
Developer, without fault, is made a Party to any litigation
instituted by or against the other Party, such other Party shall
defend it against and save it harmless from all costs and expenses
including reasonable attorney's fees incurred in connection with
such litigation.
Section 7.11. Zpforced Delay: Extension of Times of
Performance. In addition to specific provisions of this
Agreement, delay in performance by either party hereunder shall
not be a Default where delays or defaults are due to war;
insurrection; strikes; lock -outs; riots; floods; earthquakes;
fires; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of
transportation; unusually severe weather; or any other causes
beyond the control or without the fault of the party claiming an
extension of time to perform. An extension of time for any such
cause shall only be for the period of the enforced delay, which
period shall commence to run from the time of the commencement of
the cause, if the party claiming such extension gives notice of
the delay within 45 days after the commencement of the cause. If,
however, the party claiming such extension fails to give such
notice within 45 days after the commencement of the cause, the
period shall commence to run only 1.0 days prior to the giving of
such notice. Times of performance under this Agreement may be
extended in writing by the City and the Developer.
Section 7.12. approvals by City and the Developer.
Unless otherwise specifically provided herein, wherever this
Agreement requires the City or the Developer to approve any
contract, document, plan, proposal, specification, drawing or other
matter, sues approval shall not unreasonably be withheld.
Section 7.13. Ipspection of Books and Records. The City
shall have the right at all reasonable times to inspect the books
and records of the Developer pertaining to the Property as
pertinent to the purposes of this Agreement.
ee�
Section 7.14. plans and Datg. If the Developer does not
proceed with the purchase or development of the Property or if
this Agreement is terminated for any reason, the Developer shall,
subject to any rights provided by the Developer to its
construction lender, deliver to the City, without cost or expense
to the City, copies of any and all maps, architecture,
engineering, subdivision approvals, permits, entitlements, rights,
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coiltracts, plans, drawings, studies, designs, reports, surveys,
and data pertaining to the Project and its development
(collectively, "Site Designs") which are in the possession of the
Developer, together with a Bill of Sale therefor, which Site
Designs shall, subject to any rights thereto provided by the
Developer to its construction lender, thereupon be the sole
property of the City and may be used by the City, free of all
claims or interests of Developer or any other person, other than
the interest therein held by Developer's construction lender,
whose interest shall be superior to that of City in the Site
Designs; and which City may use, grant, license or otherwise
dispose of to any person for development of the Site or any other
purpose.
Section 7.15. Developer's Private Undertaking. The
development covered by this Agreement is a private undertaking,
and the Developer shall have full power over and exclusive control
of the Property while the Developer holds title to the Property;
subject only to the limitations and obligations of the Developer
under this Agreement.
Section 7.16. Entire Agreement, Waivers and Amendments. The
Agreement is executed in duplicate originals, each of which is
deemed to be an original. This Agreement, together with all
attachments and exhibits hereto, constitutes the entire
understanding and agreement of the parties. This Agreement
integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous
agreements between the parties with respect to the subject matter
hereof. No subsequent agreement, representation or promise made by
either Party hereto, or by or to any employee, officer, agent or
representative of either Party, shall be of any effect unless it
is in writing and executed by the Party to be bound thereby.
No person is authorized to make, and by execution hereof the
Developer and the City acknowledge that no person has made, any
representation, warranty, guaranty or promise except as set forth
herein; and no agreement, statement, representation or promise
made by any such person which is not contained herein shall be
valid or binding on the Developer or the City.
Section 7.17. ,geverability. Each and every provision of
this Agreement is, and shall be construed to be, a separate and
independent covenant and agreement. If any tern or provision of
this Agreement or the application thereof shall to any extent be
held to be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to
circumstances other than those to which it is invalid or
unenforceable, shall not be affected hereby, and each term and
provision of this Agreement shall be valid and shall be enforced
to the extent permitted by law.
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•
•
I
I
I
STATE OF CAUFORNIA
COUNTY OF Riverside
}es.
}
On July 7, 1992 Wixom Debbie L. Wood
ti
pusonry appMrsd E. G. Williams, President
aei
263011
psrsonsy known to me (or proved
to me on the beeie d wtldactory evidence) to be the person(s) whose nsrne(e) is/are subscribed to the within
irelrurrerlt and acknowiedged to me list he/she/they eeaeaMed the same in hiwheNMnU authorized capecity(ies),
end that by hielherlelleir signatures) on the i seunent the pereon(s) or the
persons) acted. executed the #mtunerk siA1
• 08181E L W000
NO �, _. TARY PUBLIC-CAUFORIQA
TTie %n my hand and official seal. $ NOTARY $ONO FILED IN
��., J ltletteNE CORRY
Commesisa Enke FEBRUARY 28, 1994
ewe•e+wea ••• •• • • • •• •• • • ••a•�+
(This MO tar a- • notarial ssaq
263011
Section 7.18. Survival. The provisions hereof shall not
terminate but rather shall survive any conveyance hereunder and the
delivery of all consideration.
IN WITNESS WHEREOF, the parties hereto have entered into this
agreement as of the day and year first above written.
E. G. Willi Development Corporation, a
Califrporation
By:
E. G. Williams, President
City of Palm Desert, a municipal
corporation
By:
MC23771
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263011
EXHIBITS
Exhibit A:
A-1 - Legal Description of the Property
A-2 - Site Plan of the Property
Exhibit B - Form of Grant Deed
Exhibit C - Schedule of Performance
Exhibit D - Form of Certificate of Completion
Exhibit E - Housing and Urban Development Income Statistics
MAC23771
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MAC23771
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EXHIBIT B 263011
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
E. G. Williams Development Corporation
42-600 Cook Street, Suite 135
Palm Desert, California 92260
GRANT DEED
The undersigned Grantor Declares:
Documentary Transfer Tax is $ computed upon full
valued of property conveyed.
FOR VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, the City of Palm Desert, a municipal corporation
("Grantor"), hereby grants to E. G. Williams Development
Corporation, a Calf^rnia corporation ("Grantee"), the real
property (the "Property") described in Exhibit "A" attached hereto
and incorporated herein by this reference.
1. This Grant of the Property is subject to a Disposition and
Development Agreement (the "Agreement") entered into by and
between Grantor anu .y:antee dated , 1992, the
terms of which are incorporated herein by reference. A copy of the
Agreement is available for public inspection at the offices of the
Grantor, 73-510 Fred Waring Drive, Palm Desert, California 92260.
The Property is conveyed further subject to all easements, rights
of way, covenants, conditions, restrictions, reservations and all
other matters of record.
Upon recordation by the Grantor of a Certificate of
Completion for all or a portion of the Property, such Certificate
of Completion shall constitute evidence that Grantee has satisfied
Grantee's construction obligations under the Agreement as to the
portion of the Property described in the Certificate of
Completion.
2. The Grantee covenants and agrees for itself, and its
successors and its assigns, that the Grantee, such successors, and
such assignees shall use the Property and every part thereof only
for the construction and operation of a senior housing
development, and that at least 24 units on the Property shall be
sold or rented only to very low and low income households in
accordance with the Precise Plan, the Site Plan, and plans
approved by the Grantor pursuant to the Agreement. The Grantee
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263011
further covenants and agrees that upon completion of the Project
as described in the Agreement, the Grantee shall maintain the
Property (including landscaping) in the manner of first class
residential planned developments.
3. By acceptance hereof, Grantee agrees, for itself, its
successors and assigns, to refrain from restricting the rental,
sale or lease of the Property on the basis of race, color, creed,
religion, ancestry, sex, marital status, or national origin of any
person in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property, nor shall the Grantee itself
or any persons 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
in the Property. The foregoing covenants shall run with the land.
All deeds, leases or contracts entered into with respect to
the Property shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against
or segregation of, any person or group of persons on account
of race, color, creed, religion, national origin, sex,
marital status, or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee himself or herself, or
any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon
and subject to the following conditions: That there be no
discrimination against or segregation of any person or group
of persons, on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry, in the leasing,
subleasing, transferring, use or occupancy, tenure or
enjoyment of the land 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 land herein
leased."
MAC23771
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263011
(c) In contracts: "There shall be no discrimination
against or segregation of, any person, or group of persons on
account of race, color, creed, religion, national origin,
sex, marital status or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land,
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 land."
The foregoing shall be a covenant running with the land for the
benefit of, and as a burden upon the property described herein.
4. All covenants contained in this Grant Deed shall run with
the land and shall be binding for the benefit of Grantor and its
successors and assigns and such covenants shall run in favor of
the Grantor and for the entire period during which the covenants
shall be in force and effect, without regard to whether the
Grantor is or remains an owner of any land or interest therein to
which such covenants relate. The Grantor, in the event of any
breach of any such covenants, shall have the right to exercise all
of the rights and remedies provided herein or otherwise available,
and to maintain any actions at law or suits in equity or other
property proceedings to enforce the curing of such breach. The
covenants contained in this Grant Deed shall be for the benefit of
and shall be enforceable only by the Grantor and its successors
and assigns.
5. The covenants contained in Paragraph 2 of this Grant Deed
shall remain in effect until the greater of thirty (30) years or
the period of time which the Project remains habitable, with
reasonable care and maintenance. The covenants contained in
Paragraph 3 of this Grant Deed shall remain in effect in
perpetuity.
City of Pala Desert,
a municipal corporation
Accepted and Agreed:
E. G. Williams Development
Corporation , California
corp
By: By:
Attest:
Secretary
E. G. Williams, Pres.
MAC23771
Rev. 1
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STATE OF CALIFORNIA )
)
COUNTY OF )
ss.
263011
On , before me, the undersigned,
a Notary Public in and for said State, personally appeared
personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person who
executed the within instrument as
, the municipal
corporation that executed the within instrument, and acknowledged
to me that such municipal corporation executed the within
instrument.
WITNESS my hand and official seal.
Signature
MAC23771
Rev. 1
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EXHIBIT C 263011
SCHEDULE OF PERFORMANCE
1. Draft of the Agreement by By May 15, 1992
the Agency and the
Developer
2. Draft of the Agreement by By May 22, 1992
the City of Palm Desert
and the Developer
3. Agency's and Developer's By June 1, 1992
Approval of the Agreement
4. City of Palm Desert and By June 1, 1992
Developer's Approval of
the Agreement
5. Developer's Submission of By May 12, 1992
Approval to Design
Review, City of Palm
Desert
6. Developer's Submission of By May 19, 1992
Approval to Planning
Commission - City of Palm
Desert
7. Construction Lender's By May 19, 1992
Receipt of Working
Drawings
8. Construction Lender's
Receipt of Appraisal
9. Construction Lender's
Approval of Project
Financing
10. Submission of Final
Construction Drawings
Sufficient to obtain
Building Permits
11. Submission of Final
Grading Plans and Other
Off Site Improvements
Sufficient to Obtain a
Grading Permit
By June 4, 1992
By June 18, 1992
By June 12, 1992
By June 12, 1992
MAC23771
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12. Agency's Approval of
Final Construction
Drawings
13. Agency's Approval of
Developer's Construction
Financing
14. Concurrent With Close of
Escrow of City's Property
to Developer and
Recordation of
Construction Lender's
Deed and First Draw on
Loan
15. Issuance of Grading
Permit
16. Issuance of Building
Permits
17. Grading and All Site Work
Complete
18. Construction Commences
for 72 Units
19. Completion of
Construction of all
Units, Pool and Laundry
Room
20. Agency Closes Escrow on
72 Unit Complex
263011
(30 Days After Delivery of
Same to City and Agency)
(10 Days After Approval
Received Tentatively On
6/18/92)
By July 1, 1992
By July 1, 1992
By July 1, 1992
By August 7, 1992
By August 7, 1992 (Within 120
Days After Construction
Commences)
By December 31, 1992
By January 10, 1993
essi
MAC23771
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EXHIBIT D 263011
CERTIFICATE OF COMPLETION
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CERTIFICATE OF COMPLETION
This Certificate of Completion is given this day of
, 199_, with reference to the following matters:
A. City of Palm Desert, a municipal corporation
("City") and E. G. Williams Development Corporation, a
California corporation ("Developer") entered into a certain
Disposition and Development Agreement dated as of
1992 (the "Agreement"), which Agreement provides, in Section 4.17
thereof,that the City shall furnish the Developer with a
Certificate of Completion upon satisfactory completion of the
construction and development required with respect to improvements
on said Property, which certificate shall be in such form as to
permit it to be recorded in the Recorder's Office of Riverside
County; and
B. By Grant Deed dated , 1992 and recorded on
as Document , Official Records of
the County Recorder, County of Riverside, California, the City,
pursuant to said Agreement, conveyed to the Developer certain real
property (hereinafter referred to as the "Property") situated in
the City of Pala Desert, County of Riverside, California, as
described on Exhibit A, attached hereto and made a part hereof;
and
C. The City has determined that the construction and
development on the portion of the Property described on Exhibit B,
attached hereto, has been satisfactorily performed; and
D. The Certificate of Completion shall be conclusive
determination of satisfactory completion of the construction and
MAC23771
Rev. 1 •
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263011
development required with respect to the portion of the Property
described in Exhibit B.
NOW, THEREFORE, the Parties to this instrument hereby provide lie.
as follows:
1. As provided in said Agreement and Grant Deed, the City
does hereby certify that the construction and development on the
property described in Exhibit attached hereto has been
satisfactorily performed and complete.
2. This certificate shall not constitute evidence of
compliance with or satisfaction of any obligation of Developer to
any holder of a mortgage, or deed of trust or any insurer of a
mortgage, or deed of trust securing money loaned to finance the
improvements or any part thereof.
IN WITNESS WHEREOF, the City and the Developer have executed
this Certificate as of the day and year first above written.
City of Palm Desert,
a municipal corporation
Accepted and Agreed:
E. G. Williams Development
Corpo tion, a California
co ration.
By: By:
Attest:
Secretary
E. . Williams, Pres.
MAC23771
Rev. 1
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