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HomeMy WebLinkAboutRDA RES 268RESOLUTION NO. 268 A RESOLUTION OF THE PALM DESERT REDEVELOPMENT AGENCY APPROVING AN AMENDMENT TO A DISPOSITION AND DEVELOPMENT AGREEMENT TO FACILITATE THE DEVELOPMENT OF A 161-UNIT SINGLE-FAMILY AFFORDABLE HOUSING DEVELOPMENT WHEREAS, the Palm Desert Redevelopment Agency did on the ilth day of March, 19s3, hold a duly noticed public hearing to consider the amendment to a Disposition and Development Agreement (DDA) between the Palm Desert Redevelopment Agency (Agency) and Sterling Partners, Inc. (Developer) concerning the purchase and conveyance by the Agency of 23 acres for the purpose of facilitating the development by Developer of a 161-unit single-family housing development (Precise Plan 91-12) affordable for low and moderate income households on 23 acres on the north side of Fred Waring Drive, 1400 feet east of Cook street; and WHEREAS, said Development and Disposition Agreement has complied with the California Environmental Qualit Act in that an initial study was completed and a determination made that the DDA will not have a significant adverse impact on the environment and a Negative Declaration previously approved in connection with the original resolution remains valid. The amendment is technical in nature and no additional documentation is deemed necessary. WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said Redevelopment Agency did find the following facts and reasons to exist to justify approval of said Disposition and Development Agreement amendment. 1. The proposed amendment protects the Agency s interests and insures completion of the project consistent with the approved Precise Plan. 2. The amended schedule of performance realistically sets milestones according to events within the Agency's or Developer's control. NOW, THEREFORE, BE IT RESOLVED by the Palm Desert Redevelapment Agency Board as follows: 1. That the above recitations are true and correct and constitute the findings of the Agency in this case. 2. That DDA Amendment No. 1 Exhibit "A" is hereby approved. RESOLUTION NO. 268 3. That the Chairperson be authorized to execute DDA Amendment No. 1 Exhibit ��A". PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Redevelopment Agency, held on this Z1th day of March, 1993, by the following vote, to wit: AYES: CRITES, KELLY, SNYDER, WILSON, BENSON NOES: NONE ABSENT: NONE ABSTAIN: NONE � n J Je�i M. Benson, Chairperson .._ ATT,�ST : � �1 � � , � . � � o��'.� . �.�D.�.�.� ila R. �llligan,.�/Secretary �� �-- . �� � � AMENDED AND RESTATED ��DISPOSITION AND DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED DISPOSITION AND DEVELOP'MENT AGREEMENT ("Aqreement"), dated as of March 11 , 1993, is entered into by and between the PAIM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic ("the Agency"), and STERLING PARTNERS, INC., a California corporation, PETER STERLING and GARY NOGLE, jointly and severally (collectively, "Developer"). 0 r. This Aqreement is entered into with reference to the following facts: A. The parties hereto are the partiea to that certain Disposition and Development Agreement dated May 18, 1992 (the "Original Aqreement"). Pursuant to the Original Aqreement, the Agency has purchased certain real property defined herein as the Property, as set forth in the Oriqinal Aqreement, and Aqency intends to resell the Property to the Developer as provided herein. The partie6 wish to restate the original Dispoeition and Development Aqreement to reflect the oriqinal intentions of the parties that the Developer shall have sole responsibility for the management and control of the development of the Project. B. The purpose of,._this Agreement is to effectuate the Redevelopment Plan, As Amended, for Project Area No. 1, As Amended, of the Agency, in the City of Palm Desert, California, by facilitatinq improvements to real property within the Project Area, as Amended. C. The Amendment to the Redevelopment Plan, addinq territory (the "Added Territory") to the Project Area, has been approved and adopted by Ordinance No. 275 of the City of Palm Desert adopted November 25, 1981 the contents of which Ordinance and Redevelopment Plan are incorporated herein by reference and made a part hereof ae though fully set forth herein. D. Agency is a public body, corporate and politic, exer- cisinq qovernmental functions and powers, and orqanized and existinq under the Community Redevelopment Law of the State of california. E. The Developar intends to develop 161 residential units on the Property. The Property was previously owned by Dale O. Smallwood and Pamela R. Smallwood ("the Smallwoods"), and the Developer was a party to an escrow to purchase the Property from �� 930305 jar b471-B.Jar �, � � � i ' ' _ the Smallwoods. As provided in the Original Agreement, the Aqency has purchased the Property from the Smallwoods and intends to resell the Property to the Developer as provided in this Aqreement upon satisiaction of certain conditions precedent. F. The principal objective hereof is to create an affordable housinq inventory available to be leased to or purchased by persons of low or moderate income who but for this proqram miqht not be able to obtain housinq at affordable cost, and to reach that objective the parties hereto will require an extraordinary level of cooperation with each other and in concert with the similar objectives of the City of Palm Desert, California, which level of effort the parties hereto covenant to provide. G. Development of the Project will assist in the elimination of bliqht in the Project Area, provide affordable housinq, provide additional jobs, and substantially improve the economic and physical conditions in the Project Area in accordance with the purpoaea and qoals of the Redevelopment Plan. H. The Aqency has datermined that tha land uses specified in this Aqreement and the provisions relatinq to development of the Project apecified in this Agreement are consistent with the provisions of the Redevelopment Plan and each of its applicable elements. I. Construction of the Improvements (as hereinafter defined) constitutinq the Project pursuant to this Agreement is in the best interests of the Agency, and the health, safety and welfare of the reaidents and taxpayers of the Project Area, and ia in accord with the public purposes and provisions of applicable state and local lawa. J. A material inducement to the Aqency to enter into this Aqreement ia the aqreement by the Developer to construct the Improvements within a limited period of time, and the Aqency would be unwillinq to enter into this Aqreement in the absence of an enforceable commitment by the Developer to construct the Improvements within a limited period of time. R. The Aqency has determined that the land uses specified in this Aqreament and tbe provisiona relatinq to development of the Project speciiied in this Aqreement are consistent with the provisions of the Redevelopment Plan and each of its applicable elementa. NOW, THEREFORE, the parties hereto agree as follows: �� 930305 jar b471-S.jar : ,' � ARTICLE l. DEFINITIONS. Section 1.1. Definitions. The this Aqreement shall have the meaninqB provided to the contrary: � followinq terms as used in given unless expressly 1.1.1. Added Territory meana the territory added to Project Area No. 1 by the City's Ordinance No. 275, except that portion of such territory within the territorial limits of the City of Indian Wells. � 1.1.2. Aaencv means the Palm Desert Redevelopment Agency, a public body, corporate and politic, exercisinq governmental functiona and powers, and organized and existing under the Community Redevelopment Law of the State of California, with full power and authority to execute this Aqreement. The principal office of Agency is located at 73-510 Fred Warinq Drive, Palm Desert, California 92260. 1.1.3. gcreement means this Disposition and Development Agreement. 1.1.4. �itv means the City of Palm Desert, a municipal corporation. 1.1.5. Closinc has the meaninq defined in Section 3.3.2. 1.1.6. Closinc Date means the date upon which the Aqency by qrant 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 Riversida. 1.1.7. in Section 3.5. 1.1.8. 5ection 7.1. �onstruction Contract has the meaninq defined Default has the meaninq defined in 1.1.9. veloper means Sterlinq Partnere, Inc., a California corporation controlled by Peter Sterling and Gary Nogle, and Peter Sterlinq, individually, and Gary Nogle, individually. Ths principal ofiice o! the Developer for purposes of this Aqreement is 1329 Kettner Boulevard, San Dieqo, California 92101. 1.1.10. Section 3.3.1. Escrow has the meaninq defined in -3- 930305 j�r b�►71-a.j�r �- ! i 1 I i � , t �` 1.1.11. principal off�ce of Agreement is 44-200 California 92260. 1.1.12. Section 3.5. .� Escrow Holder meanB Roadrunner Escrow. The the Escrow Holder for purposes of this Monterey Avenue, Suite B, Palm Desert, General Contractor has the meaninq defined : 1.1.13. Hazardous Materials shall include, but not : limited to, substances defined as "hazardous substances," "hazardous materials," "pollutant or contaminant," "imminently hazardous chemical substance or mixture," "hazardous air pollutant," "toxic pollutant," "hazardous waete," "extremely hazardous waste" or "toxic subetances" in any of the Comprehensive Environmental Response, Compensation and Liabilit; Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardou: Materials Transportation Act, 49 U.S.C. Si801, et seq.; The Resource Conservation and Recovery Act, 42 U.S.0 §6901, et seq. and thoae substances defined as "hazardous aubstances" in §2531� of the California Health & Safety Code; and in the regulations adopted and publications promulgated purBuant to said lawa ("Hazardous Materials Laws"). 1.1.14. Improvements means the 161 dwellinq uriits, all ancillary improvemente, and all infrastructure necesscary fo; the utilization oi such dwellinq units as a housinq subdivision ! complex, includinq, streets, curbs, qutters, 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. Partv means any party to this Agreement. The "Parties" shall be all parties to this Aqreement. 1.1.16. Plans and S,,�ecifications means the latest dated Final Construction DrawingB (as defined in Section 4.4), final certified soil compaction report from the aoils engineer, and final elevations per approved qradinq plan for construction of the Improvemente, as approved by the City and by the Aqency's Executive Director. 1.1.1?. Precise Plan means Precise Plan 91-12, approved by the City Council of the City of Palm Desert on Marci 26, 1992, by Resolution No. 92-26, which plan is incorporated herein by this reference. The Precise Plan includee a site plai elevations, floor plans and specifications. 1.1.18. Proiect means the construction of the Improvements on the Property in accordance with the Precise Plai and the Plans and Specifications, includinq the improvement of -4- 930305 j�r b4T1-6.J�r � � 161 residenti�l units on the Property, together with ancillary improvements. 1.1.19. Proiect Area means Project Area No. 1(Added Territory) of the Agency. 1.1.20. Proiect Area No. 1 means only the territory within the project area described and defined in the Redevelopment Plan approved and adopted by the City by its Ordinance No. 80. 1.1.21. Project Area No. 1, As Amended, means Project Area No. 1 together with the Added Territory. 1.1.22. ProRertv 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. 1.1.23. Purchase Price has the meaninq defined in Section 3.1. 1.1.24. Regulatory Agreement means an aqreement , executed by the Developer in favor of the Aqency, on terms and � conditions acceptable to Aqency, restrictinq the leasinq and sale of all or a portion of the 161 units comprising the Project to persons or households of low or moderate income, as defined in the California Health and Safety Code, and which aqreement meets the requirements of California Health and Safety Code Sections 33334.2, � sea., and 33418, and all regulationB implementing such statutes. The Requlatory Agreement shall also address such � matters concerninq the operation and maintenance of the Project as the Agency shall reasonably require. 1.1.25. Redevelovment Plan means the Redevelopment Plan for the Redevelopment Project Area No. 1(Added Territory) approved by the City Council of the City ot Palm Desert by ordinance. This Agreement shall be subject to the provisions of the Redevelopment Plan which are incorporated herein by this reference and made a part hereof as though fully set forth herein. 1.1.26. attached hereto as incorporated herei 1.1.27. Section 2.1. �chedule of Performance means the schedule Exhibit C to this Aqreement, which is n by this reference. Smallwood Escrow has the meaninq defined in -5- 930305 Jsr b471-E.j�r � � l.1r28. �mallwoods has the meaninq defined in Recital E. 1.1.29. �ransfer has the meaninq defined in Section 5.1. ARTICLE 2. AGENCY'S ACQUISITION OF THE PROPERTY. Section 2.1. Smallwood Escrow. The Parties acknowledge that the Developer was the original proposed purchaser of the Property pursuant to Escrow No. 2075 ("the Smallwood Escrow") at Roadrunner Eacrow ("Escrow Holder"), 44-200 Monterey Avenue, Suite B, Palm Desert, California 92260. Pursuant to the Original Aqreement, assumed the Developer's riqhta to purchase the Property under the Smallwood Escrow, and the Agency purchased the Property on May 19, 1992. Section 2.2. �nvirotuaental Warran�y. The Developer hereby represents and warrants to the Aqency that as of the close of the Smallwood Escrow (i) the Property was free and clear of any and all Hazardous Materials in excess of leqal, allowable limits; (ii) the Property was in compliance with all applicable statutes and requlationa, includinq environmental, health and safety requirements; (iii) to the best of Developer's knowledqe, any and all prior businesaes on the Property have disposed of their waste in accordance with all applicable statutes, ordinances, and regulations; and (iv) the Developer has no notice of any pending or threatened action or proceedinq arisinq out of the condition of the Property or alleqed violation of environmental, health or safety statutes, ordinance or requlations. Such warranty and representation shall survive the close of the Smallwood Escrow, the sale of the Property to the Developer pursuant to Article 3, and any subsequent re-entry onto the Property by the Agency. To this end, it is aqreed that notwithstanding any such conveyance of the Property, the Developer shall reimburse the Aqency and indemnify, protect, defend and hold harmless the Aqency from and• aqainst any and all claims, liabilities, euits, lossee, costs, expenses and damaqes, includinq but not limited to attorneys' fees and costs, arisinq out of any claim for loss or damaqe to any propeity, includinq the Property, injuries to or death of persons, or tor the cost of cleaning up the Property and removinq Hazardous Materiala therefrom, by reason of contamination or adverse effects on the environment, or by reason of any statutes, ordinances, orders, rules or regulations of any qovernmental entity or agency requiring the clean-up of the Property caused by or resultinq from any Hazardous Materiala existinq on, under or about the Property. -6- 930305 jar b4T1-6.j�r �. �__ ARTICLE 3. � PURCHASE AND SALE OF THE PROPERTY Section 3.1. Sale to the Develo�er. Upon satisfaction (or waiver by the Aqency) of the conditions described in Section 3.9, the Aqency agrees to sell the Property to the Developer, and the Developer agrees to purchase the Property from the Aqency, for the sum of $1.00 (the "Purchase Price"), on the terms and conditions hereinafter aet forth. The Purchase Price shall be paid in cash on the Closinq Date. Section 3.2. Evidence of Financing. 3.2.1. On or batore the date set forth therefor in the Schedule of Performance, the Developer�s construction lender shall approve in writing the Developer's financial statement.as satisfyinq the lender's requirements for qualifying the Developer as an acceptable borrower. . 3.2.2. On or before the date set forth therefor in the Schedule of Performance, and as a condition precedent to the Aqency's conveyance of the Property to the Developer, the Developer shall aubmit to the Aqency, for approval by the Aqency's Executive Director, evidence of construction and take- out financinq for the Project. Evidence of construction financing shall include at a minimum the Developer's proforma and line-item budqet showinq that eatimated acquisition and development costs match adequate tinancinq (includinq the source of financinq), a copy of a commitment obtained by the Developer for a mortgage loan or loans to assist in financing the hard and soft costs of conatructing the Improvements, tinancial statements, and other evidence satisfactory to the Aqency of sourcea of loana or capital, sufficient to demonstrate that the Developer has adequate funds to cover development and construction costs of the entire Project (includinq hard and soft costs), or to cover the difference, if any, between the amount of the development and construction coats and the amount of construction loan financinq authorized by a mortqage loan. For purposes of this Aqreement, a"take-out financinq" commitment may include an aqreement 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 developinq the Project. The terms and conditions of auch commitments, and the identity of the construction lender itself, shall be subject to approval by the Aqency's Executive Director, which approval may be qranted or withheld in the Exacutive Director's reasonable discretion. In particular, the construction loan commitment shall provide for a sufficient term of the loan necessary for development of the entire Project consiatent with the Schedule oi Performance, plus additional time for reasonable delays, and ahall not have discretionary continqencies, nor shall it contain an appraisal -7- 930305 ja� bi71-a.j�r contingency, �ut it may include customary continqencies outside tiie iender's or Developer�s control (such as a continqency of the provision of the tunds 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. 3.2.3. The Aqency shall reasonably cooperate with the Developer and its conetruction lender in connection with the construction loan to be obtained by the Developer to finance development of the Project. The Agency ahall provide such reasonable information and execute such reasonable documents and instruments as may be required by euch construction lender, provided auch documents or instruments do not increase the duties and obliqations of the Agency under this Aqreement, or otherwise prejudice the Aqency. Section 3.3. Escrow. 3.3.1. Qpening of Escrow. The Developer and the Agency have opened Escrow No. 2323 ("the Escrow") with Escrow Holder for the eale of the Property by the Aqency to the Developer. The Parties shall deposit with the Eacrow Holder a fully executed duplicate original of this Aqreement, which shall serve as the escrow instructions for the Escrow. The Agency and the Developer shall provide such additional escrow instructions as ehall be necessary and consistent with this Aqreement. The Eacrow Holder ie authorized to act under this Aqreement, and to carry out its duties as the Escrow Holder hereunder. 3.3.2. �lose of Escrow. "Close of Escrow" or "Closinq" means the date Escrow Holder causes the deed in favor of the Developer to be recorded in the Official Records of the County of Riverside and delivers the Purchase Price to the Developer. Escrow ahall close upon satisfaction of all conditions precedent aet forth in Section 3.9, below. Section 3.4. �ondition of Title: Title Insurance. 3.4.1. l�t the Closinq the Aqency shall convey title to the Property to the Developer by qrant deed substantially in the form atta�hed hereto as Exhibit 8 and incorporated herein by this reference. The Aqency ehall convey title to the D�veloper subject to all title exceptions affecting the Property at the time the Property is acquired by the Aqency in accordance with Article 2, this �qreement, the Requlatory Agreement in the form approved by the Aqency and the Developer prior to the Aqency's acquisition of the Property from the Smallwoods, and any other matters consented to by the Developer or which arise out of the actions of the Developer or the Developer's agents. -8- 930305 jar bi71-8.jar � 3.4;2. At the Closinq, the Aqency shall, at the Deveioper's s61e cost and expense, deliver to the Developer a ALTA Extended Coveraqe Joint Protection Policy of Title Insurance, issued by Fidelity National Title Insurance Co., in the amount of the Purchase Price, insuring that title is free and clear of all liens, easements, covenants, conditions, restrictions, and other encumbrances of record, except as permitted hereunder, and insurinq in favor of the Agency the recorded priority of the Regulatory Aqreement and the Aqency's rights hereunder. Section 3.5. S�nstruction Contract and Bond. Prior to the close of Escrow, and as a conditian precedent to the close of Escrow, the Developer shall provide to the Aqency a copy af the fully executed conatruction contract (the "Conatruction Contract"), which Construction Contract shall obliqate a reputable and financially responsible qeneral contractor (the "General Contractor"), licensed in California and experienced in completinq the type of improvements contemplated by this Aqreement, to commence and complete the development of the Project in accordance with this Aqreement and all applicable law with the funds available for the Proj'ect. Such Construction Contract shall set forth a cost of construction, including fees to the General Contractor, consistent with the fundinq available to and obtained by the Developer to pay the cost of constructinq the Improvements. The Aqency shall also have the riqht to confirm that the Construction Contract will conform to the budqet and cost breakdown approved by the Developer's construction lender. If the Developer's construction lender requires the Developer to obtain a Performance Bond and/or a Labor and Material Payment Bond, then Developer agrees to cause the Aqency to be named as a co-obliqee thereon. Section 3.6. Escrow and Title Charqes. The Developer shall be aolely responsible for all title insurance premiums, recordinq fees, documentary and local transfer taxes, and escrow feea and chargea arisinq hereunder. Section 3.7. Condition of the Property. The Property shall be conveyed irom the Aqency to the Developer in "as is" condition, and the Developer hereby releases the Aqency from any and all liability or responsibility for the physical condition of the Property or any portion thereof, including without limitation any liability or costa 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 auitable for the intended use or uses, then it ia the sole responsibility and obliqation of the Developer to take auch action as may be necessary to place -9- 930305 j�r b471-8.jar the Property �n a condition suitable for development of the Project thereon. Section 3.8. Tentative Mao Avproval. The City approved on August 13, 1992, a tentative map for the Project. Section 3.9. Conditions to Conveyance. The obliqation of the Aqency to convey the Property to the Developer under this Article 3 shall be subject to the satisfaction or waiver of each of the following conditions: 3.9.1. The Developer's execution and delivery, and concurrent recordation, of a Regulatory Aqreement in form and substance approved by the Agency. 3.9.2. The concurrent recordation and closing of the Developer's construction loan and fundinq of a first disbursement in the sum of at least $150,000.00. 3.9.3. The issuance of the binding and enforceable take-out financinq commitment, �hich may include a commitment of a financially capable third party to purchase the Property at a price equal to all hard and soft costs to be incurred in the development and construction of the Project. 3.9.4. Execution of a construction contract with a contractor and delivery of bonds as described in Section 3.5. The Parties aqree that if the foregoinq conditions are not waived or Batisfied by June 30, 1993, then the Developer shall be in default hereunder. Section 3.10. Escrow Holde� 3.10.1. Escrow Holder is authorized to: (a) Pay and charqe the Developer for any fees, charqes and costs payable under this Article. Before such payments are made, the Escrow Holder shall notify the Agency and the Developer of the fees, charqes, and costs necessary to close under the Escrow; (b) Disburse funds and deliver the deeds and other documents to the parties entitled thereto when the conditions of the Eacrow have been fulfilled by the Agency and the Developer; and (c) 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. -10- 930305 Jar b�iT1-b.j�r /� ' 3.10.2. If the Esczow is not in condition to close befo�e the time for conveyance eatablished in Section 3.9, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in addition to all other leqal or equitable remedies, in writinq, terminate this Aqreement in the manner hereinafter set forth, and demand the return of its money, papers or documents. Thereupon all obliqations and liabilities of the parties under this Agreement (other than the obliqations of the Developer under Section 2.2� shall cease and terminate in the manner hereinafter set forth. If neither the Agency nor the Developer shall have fully performed the acts to be performed before the time for conveyance eatablished in the Schedule of Performance, no termination or demand for return shall be recoqnized until ten (10) days after Escrow Holder shall have mailed copies of auch 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 writinq by both the Aqency and the Developer or upon failure thereof by a court ot competent jurisdiction. If no such demands are made, the Escrow shall be cloaed as soon as possible. 3.10.3. Any amendment of these escrow instructions shall be in writinq and siqned by both the Agency and the Developer. At the time of any amendment, Escrow Holder shall agree to carry out its duties as escrow holder under such amendment. 3.10.4. Al1 communications from the Escrow Holder to the Agency or the Developer ahall be directed to the addresses and in the manner established in Section 8.3 of this Aqreement for notices, demands and communications between the Aqency and the Developer. 3.10.5. The liability of the Escrow Holder Aqreement is limited to performance of the obliqations upon it.under this Article 3, and any amendments hereto upon by Escrow Holder. ARTICLE 4. DEVELOPMENT OF THE PROPERTY Section 4.1. �gyg�Qgment of the Pro�ertv. shall prepare-Plans and Specifications that shall requirements of tha City's Municipal Code, and an applicable federal, state and local laws, rules a and are consistent with the Precise Plan and the described therein. The Developer shall construct Improvements on the Property in accordance with t -il- under this imposed aqreed . The Developer comply with the y and all nd regulations, quality the he Precise Plan 930305 jar bL71-8.jar for development approved by the City and any other conditions of approval impoged by the City (including conditions for the subdivision of the Property), the Plans and Specifications, and all terms, conditions and requirementa of thia Agreement, includinq the Schedule of Performance, it beinq agreed that development of the Project in accordance with the Precise Plan and all conditions of approval, and all terms hereof, is of the essence of thia Aqreement. After commencement of construction, the Developer shall diliqently pursue completion of the Project. Nevertheless, the Developer ahall have sole management and control over the actual construction, and the Aqency shall not supervise, own, utilize, or manaqe the construction. In connection with such construction, the Developer shall comply with all requirements of the City's Municipal Code. The Project ahall be completed in accordance with the Schedule of Performance. Section 4.2. Precise Plan, The Developer has heretofore submitted the Precise Plan to the City for the City's review and approval. By its execution hereof, the Agency hereby approves the Precise Plan. The Project shall be developed as depicted in the Precise Plan. Section 4.3. Landscapinq and Finish Gradinu. On or before the date therefor set forth in the Schedule of Performance, the Developer shall prepare and submit to the City preliminary landscapinq and preliminary finish gradinq plans for the Project consistent with the Precise Plan. - . �: .�= �. •� � - t�- :�. ;- -. ��. ��-� - After the City's approval of the tentative map and delivery to the City of preliminary landscaping and preliminary finish qradinq plans for the Project conaistent with the Precise Plan, the Developer ahall prepare and submit to the City, for review by the City, a final map, Final Construction Drawings, which shall include complete construction documents, site development elevations, final landscapinq and finish qrading plans, and related documents. All of the foregoinq shall be consistent with the Precise Plan. Final Construction Drawinqs are hereby•defined as those in sufficient detail necessary to obtain buildinq permits. Section 4.5. Cost of Construction. The coet of the Project, includinq the costs for developinq and constructing the Improvements, shall be borne by the Developer. Section 4.6. �cal. State and Federal Laws. The Developer shall carry out the development of the Project in -12- 430305 j�r b471-d.jar � / conformity with all applicable laws, including all applicable federal and state occupation, safety and health standards. Section 4.7. �itv and other Governmental Aaencv Permits and Approvals. 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 qovernmental agency having jurisdiction over such construction or development. Section 4.8. Ant�-discrimination Durincr Construction. Throughout the Developer's ownership of the Property, the Developer for itself and its successors and assiqns agrees that it shall not discriminate aqainst any employee or applicant for employment because of age, sex, marital status, race, handicap, color, reliqion, creed, ancestry, or national oriqin in any manner connection with the ownership, leasing or improvement of the Property. Section 4.9. Taxes. Assessments, Snsumbrances 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. ARTICLE 5. LIMITATIONS ON TRANSFERS AND SECURITY ZNTERESTS Section 5.1. Limitation As To Transfer of the Pro�ertv and AssiQnment of Aareement. Prior to completion of all the work required by be performed by the Developer pursuant to this Aqreement, the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any riqht 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 Agency. The Agency may qrant or withhold such consent in its sole and absolute discretion. The Developer acknowledges that the identity of the Developer acknowledges that the identity of the Developer is of particular concern to the Aqency, and it is because of the Developer's identity that the Aqency has entered into this Aqreement with the Developer. No voluntary or -13- involuntary s�ccessor in interest of the Developer shall acquire any rights or powers under this Aqreement except that (i) the Developer may, with the prior approval of the Aqency, which approval may be qranted or withheld in the Aqency�s reasonable discretion, assfqn its riqhts and obliqatfons hereunder to a successor partnership in which Peter Sterlinq and Gary Noqle, or a corporation formed and controlled by them and in which they control at least 2/3rds of the voting stock thereof, is the Manaqinq General Partner or a Co-Manaqinq General Partner with one other manaqinq partner, with principal managerial control over the Project, and the other partner(s) is(are) non-manaqing qeneral partner(s) or limited partner(s), or (ii) to a joint venture or limited partnership where at least 49$ of the partnership interests are held by Sterling Partners, Inc. and the balance is held by a private, non-profit corporation which is generally in the business of developinq affordable housing, or (iii) a corporation iormed and controlled by Peter Sterling and Gary Noqle, and in which they control at least 2/3rds of the votinq stock thereof. No transfer or assiqnment hereunder shall be deemed to release Sterling Partners, Inc., Peter Sterling and Gary Noqle, jointly and severally, from the obligations of the Developer hereunder. This prohibition shall not be deemed to prevent the (i) qrantinq of easements or permits to facilitate the development of the Property, or (ii) any mortgaqe or deed of truat permitted by this Aqreement. Section 5.2. Security Financina; Richt of Holders. � • ' 1 q_• . � - � - • Y • � • . • - � � - - • • �1. • ! - . � - - . � • - - - - • • � - . } - . � - • �' � �• • �- - ••ii- � 5.2.1.1. Notwithstandinq Section 5.1 or any other provision herein to the contrary, mortqaqes, deeds of trust, sales and leaseback, 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 Agency (which approval shall not unreasonably be withheld), and only for the purpose of securinq loans of funds to be used for financing the direct and indirect costs of the Project (includinq reasonable and customary developer fees, loan fees and costs, and other normal and cuBtomary project costs). 5.2.1.2. The words "mortqaqe" and "deed of trust" as used herefn include all other appropriate modes of financing commonly used in real estate acquisition, construction and land development. Any reference herein to the "holder" of a mortgage or deed of trust ahall be deemed also to refer to a lessor under a sale and leaseback. -14- 930305 j�r b471-8.jar � �.. ,. - . �� - . ,�.�._.- �--. . - . � �- - � - -- }. .- ; •: • �i.. - Whenever the Agency shall deliver a notice or demand to the Developer with respect to any breach or default by the Developer in completion of development of the Project, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any first mortqage, deed of trust or other security interest authorized by this Agreement who has previously made a written request to the Aqency for special notice hereunder. No notice of default to the Developer shall be effective against any such holder unless qiven to such holder as aforesaid. Such holder shall (insofar as the rights of the Aqency 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 p,ossession, 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. � • � � - - - � - � t . . - - The provisions of this Aqreement do not limit the riqht of holders to foreclose or otherwiae enforce any mortgage, deed of trust, or other security instrument encumberinq the Property and the improvementa thereon, or the right of holders to pursue any remedies for the enforcement of any pledqe or lien encumbering the Property; provided, however, that in the event of a foreclosure sale under any such mortqage, deed of trust or other lien or encumbrance, or sale pursuant to any power of sale contained in any such mortqaqe or deed of trust, the purchaser or purchasers and their successors and assiqns, and the Property, shall be, and shall continue to be, subject to all of the conditions, restrictions and covenants of this Aqreement and all documents and instruments recorded pursuant hereto. ARTICLE 6. USE OF THE PROPERTY Section 6.1. Uses. The Developer covenants and aqrees for itself, and its successors and its assigns, that the Developer, such successors, and such assiqnees shall use the Property and every part thereof only ior the conBtruction and operation of the Project in accordance with the Precise Plan and the Requlatory Aqreement, and ior no other purpose. Said covenant to use the Property for -15- 930305 j�r b471-8.jar this use shal� run with the land for the benefit of the Aqency and the Project Area for the purpose of protectinq the interest of the community, and shall be bindinq on the Developer and all successors in interest of the Developer. These covenants shall run in favor of the Agency without reqard to whether the Aqency has been, remains or is an owner or holder of any land or interest in the Project Area. The Agency shall have the riqht, 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 proceedinqs 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, damaqes, and injunctive relief. The Agency shall have the right to assiqn all of its riqhts and benefits hereunder to the City. Section 6.2. Maintenance of the ProDertv. After completion of the Project, the Developer, and the Developer's successors and assigns, ahall maintain the Project (includinq landscapinq) in the manner of first class residential developments, as more fully described in the Regulatory Aqreement. Section 6.3. Obligation to Refrain from Discrimination. The Developer covenants and aqrees for itself, its successors and assiqns, and for every successor in interest to the Property or any part thereof, that there shall be no discrimination aqainst or aeqreqation of any person, or qroup of persons, on account of sex, marital atatus, aqe, handicap, race, color, reliqion, creed, national oriqin 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 throuqh the Developer) shall not establish or permit any such practice or practices of discrimination or seqreqation with reference to the selection, location, number, uae or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property or any portion thereof . Section 6.4. Form of Nondiscrimination and Nonseqreaation �lauses. The Developer shall refrain from restrictinq the rental, sale or lease of the Property or any portion thereof, on the basis of Bex, age, handicap, marital status, race, color, reliqion, creed, ancestry or national oriqin of any person. All deeds, leases or contracts ahall contain or be subject to substantially the followinq nondiscrimination or nonseqregation clauses: 1. In deeds: "The qrantee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or throuqh them, that there shall be -16- 930305 j�r bi71-8.jar il . no discrimination aqainst or segregation of, any person or group of persons on account of aex, marital status, race, aqe, handicaps color, reliqion, creed, national oriqin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the qrantee himself or any person claiminq under or throuqh him, establish or permit any such practice or practices of discrimination or segreqation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foreqoinq covenants shall run with the land." 2. In leases: MThe leasee herein covenants by and for himself, his heira, executora, administratora and asaiqns, and all persons claiminq under or through him, and this lease is made and accepted upon and subject to the iollowinq conditions: �That there shall be no discrimination aqainst or segregation of any peraon or qroup of persons on account of sex, marital status, race, aqe, handicap, color, reliqion, creed, national oriqin or ancestry, in the leasing, subleasinq, transferrinq, use, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiminq under or throuqh him, establish or permit any such practice or practices of discrimination or segreqation with reference to the selection, location, number, use or occupancy, o! tenants, lessees, sublessees, subtenants or vendees in the land herein leased.'" 3. In contracts relatinq to the sale or transfer of the Property or any interest therein: "There shall be no discrimination againat or segreqation of any person or qroup of persons on account of sex, marital status, race, aqe, handicap, color, reliqion, creed, national oriqin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor ahall tha transferae himself or any peraon claiminq under or throuqh him, establish or permit any such practice or practices of diacrimination or seqregation with reference to the selection, location, number, use or occupancy, of tenanta, lessees, subtenants, sublessees or vendees of the land.N Section 6.5. F.�far_t and Duration_of Covenants. Followinq development of the Project in accordance with this Aqreement, each of the riqhts, duties and obliqations of the Developer and the Agency shall be deemed to have been satisfied under this Aqreement, and the Developer and its successors in interest to the Property shall have no further obliqations with reapect to the mattera provided for in this Aqreement with the exception of the followinq, each of which shall be set forth in -17- 930305 Jar b471-8.j�r particularity�in any document of transfer or conveyance by the Developer: � (1) The Redevelopment Plan, which shall remain in effect until expiration of the Redevelopment Plan, as the same may be extended from time to time; (2) The use and maintenance requirements set forth in Section 6.1 and 6.2, which shall remain in effect until expiration of the Requlatory Aqreement, as the term of that agreement may be extended from time to time; (3) The anti-discrimination and nonsegregation requirements set forth in Sections 6.3 and 6.4 which shall remain in effect in perpetuity; (4) Easements to the Agency, City or other public agencies for utilities existing as of the execution of this Agreement, which shall remain in effect accordinq to their terms; (5) Environmental covenants and other indemnities and warranties, which ahall remain in effect in perpetuity. ARTICLE 7. EVENTS OF DEFAULT, REMEDIES AND TERMINATION Section 7.1. Defaults--Definition. Occurrence of any or all of the following shall constitute a default ("Default") under this Aqreement: 7.1.1. The Developer's neqlect, failure or refusal to keep in force and effect any permit or approval with respect to development of the Project 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 Agency of the Developer's breach; 7.1.2. Filinq of a petition in bankruptcy by or aqainst the Developer or appointment of a receiver or trustee of any property of the Developer, or an assiqnment by the Developer for the benefit of creditors, or adjudication that the Developer is insolvent by a court, and the failure ot the Developer to cause such petition, appointment, or assiqnment to be removed or discharged within sixty (60) days; 7.1.3. The Developer's failure to perform any requirement or obligation of Developer set forth herein or in the Schedule of Performance on or prior to the date for such performance set forth herein or in the Schedule of Performance, -18- 930305 Jar bL71-B.J�r ,., 0 and the failu�e of the Developer to cure or perform such obliqation or requirement within thirty (30) days after written notice of such delinquency; or 7.1.4. The Developer'B failure to commence development of the Project 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 8.12 hereof, and the Developer's failure to cure auch breach within thirty (30) days after receipt of written notice from the Aqency of the Developer's failure to so commence development of the Project as required herein; or 7.1.5. The Developer's failure to diligently pursue development of the Project for a period ot thirty (30) days after written notice from the Agency; 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 8.12 hereof; or ?.1.6. The Developer'B failure to complete development of the Project 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 8.12 hereof, and the Developer's failure to cure such breach within thirty (30) calendar days after receipt of written notice from the Agency of the Developer's failure to so complete construction as required herein; or 7.1.7. The Developer's Transfer (as defined in Section 5.1), or the xcurrence of any involuntary Transfer, of the Property or any part thereof or interest therein in violation of this Aqreement; or 7.1.8. Any other breach of this Aqreement, and the continuance of such breach for a period of thirty (30) days after the Agency has given written notice, as specified in Section 8.3 requiring it to be remedied, and statinq that auch notice is a "Notice of Default" horeunder, unless such breach cannot reasonably be remedied in thirty (30) days, in wi�ich event the Developer shall not be in default if it commences to cure such breach within auch thirty (30) day period and diliqently pursues the cure to completion. -19- 430305 j�� bi71-8.ja� Section 7.2. Re�a�d�es in the Event of Default. ?.2.1. Remedies Prior to Closinc Date. In the event of a Default under this Aqreement by either the Developer or the Aqency prior to the Closinq Date, the non-defaulting Party shall, have the riqht to terminate this Aqreement by deliverinq written notice thereof to the defaultinq Party and to Eacrow Holder, and the non-defaultinq Party may seek againat the defaultinq Party any available remedies at law or equity, including but not limited to the riqht to receive compensatory damages or to pursue an action for apecific performance. Notwithstanding anything to the contrary contained in this Section 7.2.1, however, if this Aqreement is terminated based on failure of the conditions set forth in Section 3.9 the environmental warranties and other indemnities shall Burvive auch termination. 7.2.2. ctosinc oate an� Pr�or to com�letron of the Improvements. In the event of a Default under this Aqreement by a Party after the Closinq Date and prior to the completion of all work required to be performed by the Developer pursuant to this aqreement, the defaultinq Party ehall be liable to the non-defaulting party for all damages and liabilities incurred by the non-defaulting Party, and the non-defaultinq Party may aeek against the defaultinq Party any available remedies at law or equity, includinq but not limited to the right to receive compensatory damaqes or to pursue an action for specific performance. 7.2.3. Liberal Construction. The riqhts established in this Article are to be interprated in liqht of the fact that the Aqency will convey the Property to the Developer for development and operation of the Project thereon and not for speculation in undeveloped land or for conatruction of different improvements. The Developer acknowledqes that it is of the essence of this Aqreement that the Developer is obliqated to complete all Improvements comprisinq the Project. _ Section 7.3. No Personal Liabilitv. Except as specifically provided herein to the contrary, no repreaentative of the Agency shall personally be liable to the Developer, or any successor in interest ot the Developer, in the event of any Default or breach by the Aqency, or for any t�mount which may become due to the Developer, or any successor in interest, on any obliqation under the terms of this Aqreement. Section 7.4. Lecal Actions. 7.4.1. Institution of Leqal Actions. Any leqal actions brought pursuant to this Agreement must be instituted in either the Superior Court of the County of San Riverside, State �'��� 930305 jar bL71-b.jsr � of Californiaf or in an appropriate municipal court in that County. 7.4.2. 8pplicable Law. The laws of the State of California shall qovern the interpretation and enforcement of this Aqreement. 7.4.3. �ce�tance of Service of Process. If any leqal action is commenced by the Developer aqainst the Agency, service of process on the Aqency shall be made by personal service upon the executive director or secretary of the Agency, or in such other manner as may be provided by law. If any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the Developer, or in auch other manner as may be provided by law, whether made within or without the State of California. Section 7.5. Rights and Remedig� are Cumulative. Except as otherwise expreasly Btated in this Aqreement, the riqhts and remedies of the parties are cumulative, and the exercise by either party of one or more of such riqhts 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 7.6. Inactio Not a Waiver of Default. Except as expressly provided in this Aqreement to the contrary, any failures or delays by either Party in assertinq 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 riqhts to inatitute and maintain any actions or proceedinga which it may deem necessary to protect, assert or enforce any such rights or remedies. ARTICLE 8. GENERAL PROVISIONS Section 8.1. Insurance. 8.1.1. Throuqhout development of the Project, the Developer shall take out and maintain, at no cost or expense to the Agency, with a reputable and financially responsible insurance company reasonably acceptable to the Aqency, comprehensive broad iorm qeneral public liability insurance, insurinq the Developer and the Aqency aqainst 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 aingle limit protection of at least $2,000,000, and include contractual liability endorsement. Such insurance shall -21- 930305 j�r bi71-a.jar r � name the City,and the Aqency and their members, officers, employees, and servants, as additional insureds. 8.1.2. Before commencement of any demolition or construction work on the Property, or any portion thereof, the Developer ahall 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 coveraqe for vandalism and malicious mischief, in a form and amount and with a company reasonably acceptable to the Aqency, and (ii} workers' compensa- tion insurance coverinq all persons employed in connection with work on the Property, or any portion thereof. Said builder's riek 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 subcontractora' employees. 8.1.3. The Developer shall also furnish or cause to be furnished to the Aqency evidence satisfactory to the Agency that any contractor with whom it has contracted for the performance of work on Property or otherwise pursuant to this Aqreement carries workers' compensation insurance as required by law. 8.1.4. With respect to each policy of insurance required above, the Developer shall furnish a certificate of insurance countersiqned by an authorized aqent of the insurance carrier on the insurance carrier's form settinq forth the qeneral provisions of the insurance coveraqe. The required certificate shall be furnished by the Developer prior to commencement of development of the Project. 8.1.5. Al1 such policies required by thia Section shall be nonasseasable and shall contain languaqe 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 Agency, and (ii) the Aqency shall not be liable for any premiums or assessments. All such insurance shall have deductibility limits reasonably satisfactory to the Agency. Section 8.2. Indemnitv. From and after the execution of this Aqreement, the Developer hereby agrees to indemnify, defend, protect, and hold harmless the Aqency and the City and any and all aqents, employees and representatives of the Aqency and the City, from and aqainst all losses, liabilities, claims, damaqes (including consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out-of-pocket litiqation costs and reasonable attorney's fees) and demands of -22- 930305 jar bL71-8.jar any nature whatsoever, related directly or indirectly to, or arisinq out o� or in connection with: (i) the Project or the use, ownership, manaqement, occupancy, or possesaion of the Project or any part thereof (provided, however, thia 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 aqents, employees, lessees, representatives, licensees, quests, invitees, contractors, subcontractors, or independent contractors on the Property), includinq without limitation the construction of any Improvements on the Property, or (iv) any other fact, circumstance or event related to the Developer's performance hereunder, or which may otherwise arise from the Developer's ownership, use, possession, improvement, operation or disposition of the Property, reqardlesa of whether such losses and liabilities shall accrue or are diacovered before or after termination or expiration of this Aqreement, except to the extent such losses or liabilities are caused by or contributed by the neqligent or intentionally wronqful act of the Aqency. Section 8.3. Not3ces. All notices and demands shall be qiven in writing by certified mail, poatage prepaid, and return receipt requested, or by personal delivery. Notices shall be considered qiven upon the earlier of (a) personal delivery or (b) two (2) business days tollowinq deposit in the United States mail, postaqe prepaid, certified or reqistered, 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 qives notice in writinq of a change of name or address, notices to such party shall thex�eafter be qiven as demanded in that notice: Aqency: Mr. Carlos L. Orteqa Executive Director Palm Desert Redevelopment Agency 73-510 Fred Warinq Drive Palm Desert, California 92260 (Telephone: 619-346-0611) (Fax: 619-340-0574) ��� 930305 jar b471-8.j�r with a copy to: Richards, Watson & Gershon A Professional Corporation 333 S. Hope Street, 38th Floor Los Angeles, California 90071 Attention: Jeffrey A. Rabin and William L. Strausz (Telephone: 213-626-8484) (Fax: 213-626-0078) Developer: 5terling Partners 2398 San Diego Avenue San Diego, California 92110 (Telephone: 619-544-1560) (Fax: 619-544-1564) with a copy to: Greg D. Judkins Suite 1810 450 B Street San Diego, California 92101 (Telephone: 619-232-4604) (Fax: 619-232-4616) Fscrow Holder: Roadrunner Escrow 44-200 Monterey Avenue, Suite B Palm Desert, California 92260 Attention: Mary Manderscheid (Telephone: 619-773-3000� (Fax: 619-773-5803) Section 8.4. Broker's Commissions. The Developer represents and warrants to the Aency 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 Aqency represents and warrants to the Developer �that the Aqency has used no broker, agent finder or other person in connection with the transaction contemplated hereby to whom a broker or other commission or fee may be payable. Each party indemnifies and aqrees to defend and hold the other harmless from any claims resultinq from any breach by the indemnifyinq party of the warranties, representations and covenants in this section. The Developer hereby freely and voluntarily waives the requirements -24- �, ,.- of Government,Code Sections 7267.2(b� (1� and (2) and 7267.2 (c). Section 8.5. Relocation Assistance. The Developer hereby waives any right which it may have to relocation assistance under the uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601, et aeq.} or under Title 1, Division 7, Chapter 1 of the Government Code of the State of California (Section 7260, et seq.). The Developer hereby acknowledqes that the Aqency has advised the Developer of the possible availability of such righta to the Developer and the waiver of such riqhts by the Developer herein set forth is free and voluntary. The Developer hereby releases the Agency from all claims for severance damaqes, losa of qood will, just compen- sation, pre-condemnation damaqes, and interest, costs, litigation expenses and attorneys fees arisinq from the matters described in this Section. Section 8.6. Construction. The Parties aqree that each Party and its counsel have reviewed and revised this Aqreement and that any rule of construction to the eifect that ambiquities are to be resolved aqainst the draftinq Party shall not apply in the interpretation of thia Aqreement or any amendments or exhibits thereto. Section 8.7. Interoretation. In this Aqreement 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 8.8. �ime of the Essence. Time is oi the essence of this Aqreement. Section 8.9. �onflicts of Interest. No member, official or employee of the Agency shall have any direct or indirect interest in this Aqreement, nor participate in any decision relatinq to this Aqreement which is in violation of applicable law. Section 8.10. Warrantv Aaainst Payment of Consideration for gcreement. The Developer warrants that it hae not paid or given, and will not pay or qiva, to any third person, any money or other conaideration for obtaininq this Aqreement, other than normal costa of conducting bueiness and costs of professional services such as architects, enqineers and attorneys. Section 8.11. Attorneys' Fees. If either Party brinqs an action to enforce the terms hereof or declare its riqhts hereun- der, the prevailing Party in any such action ahall be entitled to -25- 930305 j�r bt71-a.j�r its reasonable attorneys' fees to be paid by the losing Party as fixed by the Court. If either the Aqency or the Developer, without fault, ie made a Party to any litiqation instituted by or aqainst 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 litiqation. Section 8.12. Fn�`orced Deiay• 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; acta of God; acts of the public enemy; epidemics; quarantine restrictions; freiqht embarqoes; 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 claiminq such extension fails to give such notice within 45 days after the commencement of the cause, the period shall commence to run only 10 days prior to the givinq of such notice. Times of performance under this Aqreement may be extended in writinq by the Aqency and the Developer. Section 8.13. j�ggrovals by Agency and the Developer. Unless otherwise specifically provided herein, wherever this Agreement requires the Aqency or the Developer to approve any contract, document, plan, proposal, specification, drawinq or other matter, such approval shall not unreasonably be withheld. Section 8.14. Insvection of Books and Records. The Agency shall have the riqht at all reasonable times to inspect the books and records of the Developer pertaininq to the Property as pertinent to the purposes of this Agreement. • Section 8.15. Plans and Data. If the Developer does not proceed with the purchase or development of the Property or if this Aqreement is terminated for any reason, the Developer shall, subject to any rights provided by the Developer to its construction lender, deliver to the Agency, without cost or expense to the Aqency, copies of any and all maps, architecture, engineerinq, subdivision approvals, permite, entitlements, rights, contracts, plans, drawinqs, atudies, desiqns, reports, surveys, and data pertaininq to the Project and its development (collectively, "Site Desiqns") which are in the possession of the Developer, toqether with a Bill of Sale therefor, which Site -26- 930305 j�r b471-a.jar Desiqns shall� subject to any riqhts thereto provided by the Deveioper to its construction lender, thereupon be the sole property of the Agency and may be used by the Agency, 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 Agency in the Site Designs; and which Aqency may use, grant, license or otherwise dispose of to any person for development of the Site or any other purpose. Section 8.16. Develo�er's Private Undertakina. 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 Aqreement and the Redevelopment Plan. Section 8.17 . Fnt� i rP Acrrc�ement _ Waivers and Amendments . The Agreement is executed in duplicate originals, each of which is deemed to be an oriqinal. This Aqreement, toqether with all attachments and exhibits hereto, constitutes the entire understanding and aqreement of the parties. This Aqreement inteqrates all of the terms and conditions mentioned herein or incidental hereto, and aupersedes all neqotiations 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 Aqency acknowledqe that no person has made, any representation, warranty, quaranty or promise except as set forth herein; and no aqreement, statement, representation or promise made by any such person which is not contained herein shall be valid or binding on the Developer or the Agency. Section 8.18. Severabilitv. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Aqreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Aqreement, 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 Aqreement shall be valid and shall be enforced to the extent permitted by law. Section 8.19. Joint and Several Liabilitv. The obligations of the Developer hereunder shall be joint and several. -27- 430305 jar b471-8.ja� ■ . • .; __ i _ �. Section 8.20. �urvival. 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 aqreement as of t�e day and year first above written. STERLING PARTNERS, INC., a California corporation By • • �� _ - By ' - ATTEST: � 430305 J�r b471-a.jar PETER STERLING "DevelOper" ��� "Aqency" AGENCY z� �--. ; , EXHIBITS � Exhibit A: A-1 - Leqal Description of the Property A-2 - Site Plan ot the Property Exhibit B- Form ot Grant Deed Exhibit C- Schedule of Performance � -1- ; 0 930305 jar b471-a.jar EXHIBIT A-1 LEGAL DESCRIPTION TRACT 19907 AS SHOWN BY MAP ON FILE IN BOOK 144, PAGES 31 AND 32 OF MAPS, OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA -1- 930305 jsr b471-d.j�r r . «�.. ,t.. . . � -_ - . � � - .. . F�tr, . .. . . .. .. . - r � ,^�1"<':?t� '�'7`'�L" I � � � S • . . �.e � ' , � �K, � G1l7►N'P DlSD 1t�ltOt110 R�QOli'!'!D t! J11fD Nltnl 1tlCORD�� �ts'R'J!!1f TOt st�riinq Partn�r�, inc. 1�29 ltettn�r Boulward 3arf Dipo, Calilo�ia 42101 CR111/T DEED Tt�• und�rsiqn�d Grantor O�ciara�s Docuaantary Transl�r Tax is $ , co�put�d upon lvil va2u�d ot prop�rty com�y�d. tOR V11LtJ11BLL CONSIOERATION, r�ctipt o! vhich ir h�raby acknovl�dg�d, th� P]►1�1 DESERT RLDEVELOPKEl1T 1►GLNCY, a public body, corporat� Rnd politic ("Grantor"), haraby qrants to STERLING PARTNER9, iMC., a Calitornia corporatfon, PEZ2R STERLIIIG ae�d GARY NOGI,E ("GrantN�I � tt1�, Y�al prop�rty (th� �prop�rty"� d��crib�d in Exhibit l► •ttac2��d h�r�to and incorporat�d tsar�in Dy thi• r�l�r�nc�. 1. Thi• Grant ot th• Prop�rty is subj�ct to tha R�dw�lopa�nt Plan and pursuant to an lU�end�d and Restatad Disposition aad D�valap�nt 1►qr�wnt (th� •1►qr�eaent�) entared into by and batws�n Grantor and Grant�� datad , 1993, t2�• t�nas o! vhich �r� incorgorated h�r� n by r�f�renca. A copy oi tha �►qz�u�nt is a•�ailabl• for public inspection at the o!lic�s o! tha Grantor, ��-510 Pr�d iiarinq Drive� Pals Deaert, Calilornia 92260. Th� Prop�rty is conv�yed lurther subject to all �as�tiant�, riqhts o! vey, cov�nnnts, conditions, r�strictions, r��arvation• arM all othar aatt�rs oi r�cord. 2. Th� Grant�a cov�nants by and !or its�ll, its r�pr�s�ntativ�a, it� succassor� and assiqns and �v�ry successor in int�rsst to th� Prop�rty or any part th�r�ol, that durinq const..vction o! iapro�vaa�nts and tharaaltsr the Gzantee shall not us� or pars�it th� us� o! th� Property in violation o! th� R�d�v�lopt��nt Plan, as adopt�d by th� City o! Pala D�sert by it� Or,inanc� No. on . 19 . Th� Grante• turtA�r cov�nants and aqrs�� or tss !, ar�d its succ�s�ors and its assiqns, that th� D�v�lopar, �uch succ��sor�, and such -1- rlo7dl Jr M)t•�.JK •,• .. , � � • �" .: t ;'; ; t :,�,iv��� . �:.,•..•a� � . �,5���> i � r',y�.�+'� I• �7 � � �� 1�" '� �1 A� � ' , 1 � ��. f� ` r'!-- �•�'��M ,1�. �>.� S► � �t�,t� 1. y�'"' l� l. � t��•y����1� # -'j� �,7�j��4 � �� l�v �, � - , • � - �� ' . s-..;r . '.-- . , �. - .. . • � r. • TMr•., r a -: ^,�h+i,�'�r � � 't . IP 1i'' � � ' ' h '' �' tMie �tsvet�oa a�itd �� ��'�►�s7 l+�rt tb�r�o! only !os op.rat on o! a nauinq a.wlow.nc, ana ctiac at irast isi n�ita af tL� prop�rty stuii b� so1Q os rsnt�4 only !o lov ana soa�rat� inaoM hous�l�o1Q� in ace�rdanc� MitL th� R�qulatorY 11qr�t, th� �r�cis� plan, th� 81t� Plan, and piu+a apprav�d b7 ths Gs�antor purwant to tA� J►qrNs�at. T!u GrantN lurth�z ccnrananta and �qrNs tbat upon co�plation o! th� Proj�cL as d�scribb in t!� 11qs�nt, tA� GrantM �hall �aintain th� Prop�rty (ircludinq landscapinq) 1a th� aaru��r ot tirst cla�� r�sid�ntiai plann�d dw�lops�nts. 3. Qy acc�ptanc� ��r�ot, Grant� aqrNs, !or it��ll, i�s succ�ssors and assiqns, to r�frain lras r�strictinq th� r�ntal, sal• or l�as� ot th� Prop�rty on ths basis o! rac�, color, cr�, r�liqion, ancastry, s�x, aarital alatus, nation�+l oriqin or aq� o! any p�rson in the sal�, leaa�, subl�as�, transt�r, us�, occupancy, tanur� or �njoya�nt oi tt�� prop�rty, nor sDali ths Grant�� its�l! or any p�rsons claisinq und�r or throuqh it astablish or p�r�it any such practic� or practices o! dincriaination or s�qreqation rith reter�nc� to tD� selaction, location, nuab�r, us� or occupancy o! tenants, l�sse�s, �ubt�nants, subltss��, or v�nd��s in !h• Prop�rty. TA� lor�qoinq cov�nants �hall run rith th• land. ' 1111 deedr, l�asas or contracts snt�rad into vith rsspect to the Praperty shell contain or b� subj�ct to substentially tt�� lolloving nondiscri�ination or nons�qt��gation clausas: (a) In d�ads: •Th� qrante� har�in cavanants by and !or hi�s�l! or b�rs�ll, his or h�r h�it�. a�cecutors, a�dainistrators and assiqns, and all parsons claiainq under or throuqh thaa, that th�r� ahall b� no discriaination aqainst or s�qr�qation ot, any parson or qroup o! persons on account o! rac�, color, creed, reliqion, national oriqin, sex, sarita�l status, aqe or ancastry in the sale, leas�, sublsas�, transt�r, usa, occupancy, tenur� or anjoynent o! the land A�r�in comeyed, nor ahall tha qzantee t�i�sal! or hara�lt, or any person claiainq under or throuqh his or her, •stablish or p�r�it any such practic� or practic�s ot discriaiaation or s�qz�qation vith r�taranca to th� s�l�ction, location, nu�r, usa or occupancy o! t�r.•.,�ts, lass�es, subt�nants, subl�s�s�s or v�r�d��s in th� land h�r�ir. com►wy�d. The for�goinq cov�nant• shall run with th� lailal . " (b) In l�as�ss *Th� l�ss�� t►�r�in cov�nants by ana tor hias�l! or h�rs�lt, hi• or har h�irs, �x�cutors, adainistr�tor� and assiqrts, and all p�rson� claiainq und�r or throuqh hi� or h�r, and this l�a�s� is aad� and acc�pt�d -2- noDos 1�• M7t-�.l.r � � .. �f`'� . . � '.' �u'.7r"S:,y.�p..w.n:7.., .c•� a.�.;,t-� iS^., . -•;r.TL"39;s1"�'�" . . � . �.y�t�, , ! . • 4, i . Il . . � 1 0���. .+�� �ty. �f �.... . ���fiq'+.:�!'�i7: - ' •'x . . '�VZ `^��� .. '�9�. � _ " . ' �'Jr. S � �M''��7�� � It Qy .. � � ,lF �••/ !' � �T v�oe and wbj�ett to tD� tolla►irrq co��ditionst That lbtt+� es no ai�ct3aieialiv� aq�ir�st or s�qr�qation oi any p�rsoa or qre�up o! p�rsons, on accaunt o! aqs, rsc�, color, cs��d, rrliqioe�� s�c, �aariLal status, nationsi oriqin, or anc�stry, in t�s l�asinq, �ubi�a�inq, transt�rritq, us� or occup�ncY, tsnus� or aniorwnt o� th� land b�r�in i�as�e nor sea�i tb� 1�ssN SiaNl! or h�rs�lt, or any p�rson claiaiaq una�r or lhrovqA hia or L�r, �stablish or p�rait any such practic� or practic�� o! discriaination or srqr�qalian with r�twr�nc� to tn� s�l�ction, location, nuuab�r, us� or occupancy o! tanafltar, l�ssa�ts, sublsss�ws, aubt�nant� or vandNs in th� land h�r�in l�as�d.• (c) Zn contractss "Th�r� shall bs no discriaina- tion aqainst or s�qr�qation o!, any p�non, or qraup oi p�r�ons on account o! rac�, color, crNd, r�liqion, aq�, national oriqia, s�x, aarital •tatu� or anc�stry in th� sal�, l�ase, subl�as�, transl�r, us�, occupancy, t�nur� or �njoy�ant ot th� larid, nor sha2� tha transl�r�� hias�l! or h�rs�l! or any p�rson claisinq undsr or throuqh hia or har, �atablish or p�rsit any such practic� or practic�s o! discrisination or s�qr�qation vith ralar�nc� to th� s�lsction, location, nuab�r, us� o: xcupancy o! t�nants, l�ss��s, subter�ants, �ubl�ssa�s or v�nda�s ot tha land." Th� foreqoisiq ehall ba a covenant runninq vith tha land !or tha b�neiit ot; and as a burdan upon tha prop�rty described harain. 4. J►11 covsnants contain�d in tbi� Grant D��d shall run Mith th� land and shell bw bindinq !or th� ban�tit o! Grantor and its �uccassors and assiqns and auch covenants shall run in tavor o! the Grantoz and tor the �ntira period durinq vhich the covenaats ahall b� ir� forc� and ettact, vitbout regard to whether the Grantor is or reaains an ovner o! any land or interest therein to which such covanants relate. T'h� Grantor, in the evant o! �ny breach o! any such covenants, shall have the riqht to exercise all oi th� rights and raaedi�s provided herein or oth�rrriss availabl�, and to maintain any actions at lav or suits in •quity or oth�r property prx�adings to enlorca tha curinq of such breach. The aovenants contained ia this Grant Deed shall be ior th� ben�tit o! and shall be �nlr..,re�l� only by th� Grantor and its succassors and assiqns. -�- I!e!o! f�r ra1•i.)K r xr..�i.� -+r.� rf. •rs -,r'S:�c-a,�� r y e y � �- �rur,� . . .. � s ... . +c 1.,, r . : .r,.b ,,mt,' 'a. / N'"rr. �4 .,��� ,�4J�' ���yl. . . . . + �~ .. . � . . .. tk �4 ..��y�` , •*.''' t.�ur .I�.- :-�. � � .k� �Y .. f' ' `*, ,�� � „ ��.. •4. ,,y � :�,. .�,F;�, ,�'x ��, "S� � �� R, ,•. � �.�f �t. .. , � � . . v y R. �• � � � � ��� i 0� f�4i.� Cs�n! O��A �1� s+�i� ia �!l�ot anlii tir �is�tiat dat� ot !�N Ma!l�10pMl1: �lafl �Y ��a O! �lwflOb !!� !� t0 tis� •'1!� OO�ralaol� oOAtaleNd iss l�araqr+apA 3 O! lhi� 0latlt Da�d slsal� rw�ie in �tl�at in p�tp�tnity. P71Lt 0lftR! 7lacvp�tb and A4sy�Q s AasNclt, a puDlio bodr oosporats a� politio s?ERLi11�G pARTllsRa, ittC. �_ � �a.A ' DY= rp�rsm+ V• . tt�st: /� . i s J /' � �7�70s l� �-�.1K �1� 0 -�,e,t�Yt���.^;i- : �,c;': ; '!il..- '1�'�,y+ •ws,.�:� . �`f"' � .i � - `6- --i..�� q$ ;.�� .:�..��t,,�.t:r...,,�,r.fy.crrvr�+l ,��r,+�� �r� - �-» � � � .Y � , ..:�.� �`��v : : �GrastN• J • "r"€.,.q�,.',,.. �+.. "':� ' .. , � � � . ;?�;� ` . r � • i. 2. �. t. 5. 6. , .�r,•. �.�; , . � q• -,ti�:;� �c • �xsssrr c �Lion ot w� . - � � ���199Z ��� � � � 1S Y � 1992 LZL1Lflo��r � ■ t i..�.'�� , � �!n—`: r�le�� .,w `i tor nur�•w�s� ot t� S71 May 1� � 1992 Pt4I2��LY t � t � �a+�1Lc�s 5.�� ,- n— =�`_a �� �1• 1992 wh { �� �4lli. conlo �•••• vith the ..•� �� p �n"�..w in comnii�r�� _�-"'�'�"'�" �her �••�al re �+•- �� Ca 1 i tr,..,1 � l�al ord i n.....� - and reaL � •• � .. '-.�-sli-a•t-����Tf � - • ,� .� � � ••• �-� t - �,• .� , � ._ _ .� ��. �. , �• � , ,. ��. � � .� � , — � � 1« �cn•�.).r � �,K.:, � -1- �n th� lat�r o! (a) s3 days att�r subaission o! sa,e by D�velop�r to 1►qancy, or �b� u9ust 14, 1992. It City does � aPPro`+t tha tentative =ap vithin such pariod of tiae, tben either party shall have th� riqht to ter�inate this �►9r�eaent . . [1►lraady provided tArouqh tha Pr�cis� plan] ��,;, :�;�, : �>',:.r.+ � . ' ,::� _ . • �� A00o'f l�r M7t-�. JK ti�, �ti�" �'!�s'' ' � a n.�.i, x '�. ' . ' •:_ , � L �. ., � ,'.d,'� ' .. �'�1!�K�'pTi: i.[:kC'��x►tF'17!�i�► - !'i,� r�. :3 �. .�' � ;• Aa'x : .t"'µ.� t. . �. � . -, � • •:•)� 1 � �1 •l. Y•. ' � 1 .I.y •i• 1•• � �1• 1 l `'1 •�� , � �,• •, � 9. � ! �f •/• t•1 r.� • r � �a n �I � �: � .,• , .. � •� � �f •r • K �:� �.• � � i: r,• �,• �r � •, -�a•. / �1 •I1•1•' 1 �' l •1•' - 1 y � t.• �. \ � �,• � . . ,. . . , � �•� - . •► . � � ., . . e . � 11ilLin �o daYs atl�s approrsl b7 CitY at� Aqs� o! a t�l1�t��� �ap (Ce�el�t�d1 t►�thin is days alt�r sub�ission o! aaa� Dy Dw�lop�r to 1lqancy, providad sas� is acc�ptabl• to Aq�ncy. Nitt�in 7� days att�r r�c�ipt o! a t�k�-oue linancinq eoaita��t 60 days ait�r d�liv�ry o! saa� to City aad Aq�ncy, provided tt��y ar� acc�ptable to City and 11q�ncy IIpon satislaction oi all conditiors pr�c�dtnt tD�r�lor, but ii all conditions prac�dsnt ar� t�ot satisli�d by Jurf� �0, 1993, th�n 11q�ncy �aaty tar�inata l►qancy's obliqations h�r�undsr. Concurr�nt rith the closa o! as�.-rov !or Aqancy's resal• ot th� �►ropwrty to D�velopar �� w a - �;.- ,�e .s , 3,.—y� ; ,r�;.,��+��,; - / �^+�� �.. . ra'' -� �rc:. , -w. 'k,T"":y6` � 4 . � �. . r'.; • t s •r• 1�. - - : � et trnat� �irat drav ot� ,.� .,�*LCti 1 �. �� t� � ec�ita�nt te turd bala�a ef t!� con�tructio�loan �. + • •,•. =� •, •i� •1� t �S ' � • � � �f � 1.• � ♦ � �h • � ' . �. ., ,. �,• �,• � tK �•K•, ��� .,. ,,. 16. jssuancs ot p�r�its tor QradinQ snd sit� vork. and cas�ence��nt ot qradina and sita rork 1�, jt•�•!anc� o!_buildina gar�its �nd co�enaa�ant Q! con�truction tor at least f r�t 10 units is. �raAinra anQ all �,ta vork co�rl�te 19 . �'^�� �t � on o! Construction oi at i�ast th� tLrst iQ 1� � ''� � '�R". �'1� ; c. ..�.�..-- � �•vs-[. . ��.�,,r - il�" �`t Cononrs^�et vit�► clos� ot asasa�► !or 11q�ncY � s r+�sal� o! tM Prop�rtY to Da�rsiop�r Concurs�ntly vitb Asv�lop�r•• acquisition oi tha Prop�rty 180 days af��r appraval o! linal sap, or •oon�r if r�quir�d by la�+ or th� Ciiy as a condition o! approval oi th� linal �ap ltithin th� •arli�r o! (i) 90 days attar clos� o! escrow, or (ii) 30 daya attar recordation o! the linal sap iiithin 180 days aiter issuance of gradinq p�erait, provid�d plans ara eu�ticient !or issuanc� o! th� p�rrit 180 days aft�r crnorenceaent ot qradinq On th� earliar ots (a) 10 �onths att�r coa�nca�ent o! the qradinq and sit� vork, or (b) Apzil �0, 1994 Con�truction shalt �antinu� vith unib b�inq coaancsd and cc�pl�t�d at tha rato ot at laast 10 units ev�ry aonth th�r�att�r. -3- I!eloS IM rt7�-�.)�► , . � � � n"�'�� �"�'i� � . ' . .. w � �;�r 4 ��' � � �- ` . . � l �..t - . ��N�i � �1.. 1' �, �� • f j 5��'f pi. .d N.�w� n���*'� y��r r���s � �� '� f t� .� i r , `�tl ���.� " r�y , , a',.+'7r'F "''�} �. . '. � � - : � !