HomeMy WebLinkAboutCDC/1999-25
(See Also Res 1999-187)
1
RESOLUTION NO. CDC 1999-25
2
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING THE DISPOSITION OF CERTAIN LANDS BY
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO TO CENTURY CROWELL COMMUNITIES,
L.P., ON THE TERMS SET FORTH IN A DISPOSITION
AND DEVELOPMENT AGREEMENT (CENTURY CROWELL
COMMUNITIES)
3
4
5
6
7 WHEREAS, the Redevelopment Agency of the City of San
8 Bernardino (the "Agency") owns or has a beneficial interest in
9 certain
subdivided
lands
in
Resolution
referred to
this
10 collectively as the "Sites" which are situated within the
11 redevelopment project area of the Northwest Redevelopment Project
12 described as:
13
14
(i) Lot Nos. 6 through 13, inclusive and Lot Nos.
15
27-42, inclusive of Subdivision Tract Map No.
16
11261 (the "Phase I Site"); and
17
1
38,
of
(ii) Lot
Nos.
through
inclusive
18
Subdivision Tract Map No. 13822 (the "Phase II
19
Site"); and
20
21 WHEREAS, the City of San Bernardino (the "City") aquired the
22 Phase I Site under the terms of a 1989 tax-defaulted property sale
23 agreement with the County of San Bernardino (Westlands Bank) and
24 the Agency aquired the Phase II Site from Dukes-Dukes and
25 Associates; and
26
27
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1
WHEREAS,
Dukes-Dukes
and
Associates
undertook
the
2 redevelopment of the Phase I Site and the Phase II Site pursuant to
3 an agreement which was cancelled following the approval of an
4 "Agreement for Relinquishment of Rights and Forgiveness of
5 Obligations" dated as of February 21, 1994 by and between Dukes-
6 Dukes and Associates and the Agency; and
7
8
WHEREAS, in calendar year 1998, the Agency circulated a
9 written request for proposals among qualified developers of
10 affordable single family residential dwelling units in which the
11 Agency solicited proposals for the disposition and redevelopment of
12 the Sites on terms acceptable to the Agency, and
13
14
WHEREAS, based upon a review and evaluation of the proposals
15 submitted to the Agency, the Community Development Commission of
16 the City of San Bernardino (the "Commission") as the governing
17 board of the Agency selected the proposal submitted by Century
18 Crowell Communities, L.P., a California limited partnership (the
19 "Developer") for further study and evaluation pursuant to the terms
20 of an instrument entitled "Exclusive Right to Negotiate for
21 Property Acquisition and Redevelopment Assistance Between Century
22 Crowell Communities, L.P. and the Redevelopment Agency of the City
23 of San Bernardino" dated as of February 1, 1999; and
24
25
WHEREAS, the Agency staff have prepared a draft of a
26 Disposition Development Agreement
(the "Agreement")
for the
27
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CDC 1999-25
1 disposition of the Sites to the Developer together with a report
2 which summarizes the key terms of the Agreement and describes the
3 manner in which the proposed disposition of the Sites to the
4 Developer will assist in the elimination of blight (the "33433
5 Report"); and
6
7 WHEREAS, it is appropriate for the Commission to take the
8 actions with respect to disposition of the Sites to the Developer
9 and approve the Agreement as set forth in this Resolution.
10
11 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION ACTING ON
12 BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
13 DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
14
15
Section 1.
On July 19, 1999, the Commission conducted a
16 full and fair joint public hearing with the Mayor and Common
17 Council of the City of San Bernardino relating to the disposition
18 and redevelopment of the Sites by the Developer pursuant to the
19 terms and conditions of the Agreement. The minutes of the Agency
20 Secretary for the July 19, 1999 meeting of the Commission shall
21 include a record of all communication and testimony submitted to
22 the Commission and to the Mayor and Common Council by interested
23 persons relating to the joint public hearing, the 33433 Report and
24 the approval of the Agreement.
25
26
27
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CDC 1999-25
Section 2.
A copy of the Agreement in the form submitted
2 at the joint public hearing is on file with the Agency Secretary.
3 The Commission hereby finds and determines as follows:
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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(i)
the disposition and redevelopment of the Sites by the
Developer
in
with
is
the
accordance
Agreement
consistent
with the Redevelopment
Plan
the
for
Northwest
Redevelopment
the
Agency
Project
and
Implementation Plan;
(ii)
the terms and conditions of the Agreement contain
assurances that the Sites will be redeveloped for
affordable single family residential dwelling use
purposes as permitted under the Redevelopment Plan;
(iii) the purchase price for the Sites payable by the
Developer to the Agency, subject to the satisfaction of
the terms and conditions of the Agreement, is an amount
which the Commission declares to be fair, just and
reasonable, and that the disposition of the Sites on
the terms set forth in the Agreement shall materially
benefit
and
sustain
implementation
of
the
the
Redevelopment Plan and assist the community to increase
the supply of affordable single family residential
dwelling units available to persons and households of
a low- and moderate income;
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1
(iv)
the consideration payable by the Developer to the
2
Agency for the disposition of the Sites
(e .g.:
3
$434,000.00 in cash payable to the Agency at the close
4
of the escrow and the assumption by the Developer of
5
the
obligation
of
complete
the
the
Agency
to
6
installation of the off-site public improvements for
7
Subdivision Tract Map No. 13822) is an amount which is
8
not less than the fair reuse value of the Sites at the
9
use and with the affordable single family dwelling
10
occupancy and maintenance covents and other terms,
11
conditions and development costs authorized in the
12
Agreement.
13
14
Section 3.
The Commission hereby finds and determines that
15 no further environmental review by the Agency of the disposition
16 and redevelopment of the Sites of the Developer pursuant to the
17 terms and conditions of the Agreement is necessary at this time
18 under the California Environmental Quality Act, as amended, in
19 light of the following facts:
20
21
the final subdivision tract maps for the Sites have
(i)
22
previously been recorded and the redevelopment of the
23
Sites by the Developer pursuant to the Agreement will
24
not require any revision or change in the approved
25
subdivision tract maps for the Sites; and
26
27
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1
(ii)
the redevelopment of the Sites by the Developer
2
pursuant to the Agreement does not involve any new
3
significant increase in the severity of previously
4
identified
environmental
were
not
effects
which
5
previously considered as part of the approval of the
6
subdivision tract maps for the Sites; and
7
8
(iii) the Sites are situated in the redevelopment proj ect
9
area of the Northwest Redevelopment proj ect and by
10
virtue of the facts set forth in subparagraph (i) and
11
(ii) above, pursuant to the provisions of Title 14
12
California Code of Regulation Section 15180, no further
13
review of the potential effect of the redevelopment of
14
the Sites in accordance with the Agreement is required
15
at this time under CEQA and the Final EIR for the
16
Northwest Redevelopment Project.
17
18
The Commission hereby approves, receives and
Section 4.
19 files the 33433 Report and the Agreement in the form as submitted
20 at this joint public hearing.
21
22
The Commission hereby approves the disposition
Section 5.
23 of the Sites to the Developer on the terms set forth in the
24 Agreement. The Chair of Commission and the Executive Director are
25 hereby authorized and directed to execute the Agreement on behalf
26 of the Agency together with such technical and conforming changes
27
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1 as may be recommended by the Executive Director and approved by the
2 Chair of the Commission.
The signatures of the Chair of the
3 Commission and the Executive Director on the Agreement shall
4 provide conclusive evidence that the Agreement has taken effect.
5 In the event that the Agreement may not be fully executed by the
6 parties for any reason within thirty (30) days following the date
7 of adoption of this Resolution, the authorization granted to the
8 Chair of the Commission and the Executive Director to execute the
9 Agreement on behalf of the Agency shall be of no further force or
10 effect.
11
12
Section 6.
Provided that the Agreement has been fully
13 executed by the parties wi thin the period of time set forth in
14 Section 5 of this Resolution, the Executive Director of the Agency
15 is hereby authorized and directed to take all actions set forth in
16 the Agreement on behalf of the Agency to close the escrow
17 transaction described therein. The Chair of the Commission and the
18 Executive Director are further authorized and directed to execute
19 an acknowledgement of acceptance of transfer of title of the Phase
20 I Site from the City pursuant to the Resolution of the Mayor and
21 Common Council of even date herewith, and to execute the final form
22 of the Agency Grant Deed transferring title in the Sites from the
23 Agency to the Developer upon satisfaction of the applicable
24 conditions for the close of the escrow set forth in the Agreement.
25
26
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CDC 1999-25
1 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO APPROVING THE DISPOSITION OF CERTAIN LANDS BY THE
2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO CENTURY
CROWELL COMMUNITIES, L.P., ON THE TERMS SET FORTH IN A DISPOSITION
3 AND DEVELOPMENT AGREEMENT (CENTURY CROWELL COMMUNITIES)
4
Section 7.
This
Resolution
shall
become
effective
5 immediately upon its adoption.
6 I HEREBY CERTIFY that the foregoing Resolution was duly
7 adopted by the Community Development Commission of the City of
8 San Bernardino at a
joint regular
9 thereof, held on the
19th
10 by the following vote, to wit:
11
meeting
day of
July
, 1999,
18
19
The foregoing Resolutiori"1s hereby approved this ;?~~
day of ~, 1999.
20
July
21
22
23
24 Agency Counsel
25
26
27
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~:.(;(((J
~u "th valles, Chairperson
C mmurity Development Commission
f tHe City of San Bernardino
I
~onteht :
8
CDC 1999-25
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, California 92401
(Space Above Line for Use By Recorder)
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
CENTURY CROWELL COMMUNITIES, L.P.
a California Limited Partnership
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement")
s entered into as of July 1, 1999, by and between the REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and
poli tic (the "Agency") and CENTURY CROWELL COMMUNITIES, LP, a
California limited partnership (the "Developer"). Agency and
Developer hereby agree as follows:
Section 1.01. Purpose of Agreement. The purpose of this
Agreement is to effectuate various redevelopment plans of the
Agency by making available affordable housing for low- and
moderate-income homebuyers and to cause the residential development
of two single family housing tracts (the "Sites"). The Sites are
situated within the redevelopment project area of the State College
Redevelopment proj ect in the City of San Bernardino, California
(the "City"). A legal description of the Sites is attached hereto
as Exhibit "A" and incorporated herein by this reference. The
development of the Sites pursuant to this Agreement is in the vital
and best interests of the City and the health, safety and welfare
of its residents, and in accord with the public purposes and
provisions of applicable state and local laws. The Agency has
determined that the development and uses contemplated by this
Agreement will benefit the low- and moderate-income housing needs
of the City as well as the various redevelopment project areas of
the City.
Section 1. 02 . The Sites. The Sites, which are
designated as Subdivision Tract Map No. 11261 (the "Phase I Site"),
and as Subdivision Tract Map No. 13822 (the "Phase II Site"),
consist of a total of SIXTY-TWO (62) subdivided lots: (i) TWENTY-
FOUR (24) of these subdivided lots are in the Phase I Site (each
lot in the Phase I Site, a "Phase I Lot"); and (ii) THIRTY-EIGHT
(38) of these subdivided lots are in the Phase II Site (each lot in
the Phase II Site, a "Phase II Lot"). Promptly following the
purchase of the Sites from the Agency the Developer shall undertake
the development, improvement, marketing and sale of single family
detached residential homes on each Phase I Lot and on each Phase II
Lot. The provisions of this Agreement are applicable to the Sites
in their entirety.
Section 1.03.
Parties to the Agreement.
(a) The Agency. The Agency is a public body, corporate
and politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community
Redevelopment Law of the State of California (Health and Safety
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Code Section 33020, et ~.)
located at 201 North "E"
California 92401.
The principal office of the Agency is
Street, Suite 301, San Bernardino,
(b) The Developer. The Developer is Century Crowell
Communities, L.P., a California limited partnership. The principal
office and mailing address of the Developer for purposes of this
Agreement is: 1535 South "0" Street, Suite 200, San Bernardino,
California 92408.
Section 1.04. Prohibition Against Change in Ownership,
Management and Control of Developer and Assiqnment of Agreement.
The qualifications and identity of the Developer are of particular
concern to the Agency. It is because of those qualifications and
identity that the Agency 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 as expressly set forth herein.
Except as set forth in Section 3.04, the Developer shall
not assign all or any part of this Agreement or any rights
hereunder prior to the issuance of the final Certificate of
Completion with respect to the Sites without the prior written
approval of the Executive Director of the Agency, which approval
shall not be unreasonably withheld or delayed.
The Developer shall promptly notify the Agency in writing
of any material change in the identity of the parties either
comprising or in control of the Developer, as well as any and all
changes in the interest or the degree of control of the Developer
by any such party, of which information the Developer or any of its
partners or officers has been notified or may otherwise have
knowledge or information. This Agreement may be terminated by the
Agency prior to the Close of the Escrow as set forth in Section
2.03 if there is any material change, whether voluntary or
involuntary, in membership, ownership, management or control of the
Developer (other than such changes occasioned by the death or
incapacity of any individual) that has not been approved by the
Agency prior to the time of such change or the Agency may seek
other appropriate relief in the event that at any time following
the Close of Escrow and prior to issuance of the final Certificate
of Completion such a material change in the ownership, or control
of the Developer occurs with respect to the Sites; provided,
however, that (A) the Agency shall first notify the Developer in
writing of its intention to terminate this Agreement or assert any
other such remedy, and (B) the Developer shall have twenty (20)
calendar days following its receipt of such written notice to
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commence and thereafter diligently and continuously proceed with
the cure of the default of the Developer hereunder and submit
evidence of the initiation of satisfactory completion of such cure
to the Agency in a form and substance deemed satisfactory to the
Agency, in its reasonable discretion.
For the purpose of this Section 1.04 the words "material
change" refer to any total or partial sale, assignment, or
conveyance, or any trust power or any transfer in any other mode or
form by the Developer of more than a forty-nine percent (49%)
interest of the ownership of the Developer, andlor a series of such
sales, assignments or conveyances which in the aggregate exceed a
disposition or change of more than a forty-nine percent (49%)
interest of the ownership of the Developer.
Section 1.05. Benefit to Project Areas. The Agency has
determined that the development of the Sites in accordance with
this Agreement will eliminate blight and provide needed low- and
moderate-income housing to the various project areas of the Agency
as well as to areas in proximity thereto, which housing is needed
due to the insufficiency of such housing within the City generally.
ARTICLE II
DISPOSITION OF SITES
Section 2.01. Purchase and Sale of the Sites. Subject
to all of the terms, conditions and provisions of this Agreement,
and for the consideration of the Purchase Price as herein set
forth, the Agency hereby agrees to sell and the Developer hereby
agrees to purchase the following:
all of the right, tile and interest of the Agency in the
Sites as more fully described in Exhibit "A," including
all right, title and interest of the Agency in and to any
land lying in the right-of-way of any existing or
proposed highway, street, road, avenue or alley abutting
or adjoining the Sites, but excepting therefrom any
prepaid development entitlement and public facilities
capi tal fees, including without limitation, sewer
capacity charge entitlements or credits applicable to the
Sites which the Agency has previously paid to the City.
The purchase price which the Agency agrees to accept from
the Developer and which the Developer agrees to pay to the Agency
for the Sites is the sum of FOUR HUNDRED THIRTY-FOUR THOUSAND
DOLLARS ($434,000.00) in United States currency(the "Purchase
Price").
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Section 2.02.
Return of Deposit.
Payment of Purchase Price: Apolication or
(a) As of the date of this Agreement, the Developer has
deposited the sum of Ten Thousand Dollars ($10,000.00) with the
Agency pursuant to that certain instrument entitled "Exclusive
Right to Negotiate for Property Acquisition and Redevelopment
Assistance Between Century Crowell Communities, LP and the
Redevelopment Agency of the City of San Bernardino" dated as of
February 15, 1999. Within five (5) days following the execution of
this Agreement by both parties, the Developer shall deliver to the
Escrow Holder (as hereinafter defined) the sum of Fifteen Thousand
Dollars ($15,000.00) and the Agency shall transfer to the Escrow
Holder for the account of the Developer the sum of Ten Thousand
Dollars ($10,000.00) from the moneys tendered by the Developer
under said Exclusive Right to Negotiate. The aggregate sum of such
$25,000.00 as delivered to the Escrow Holder, is referred to in
this Agreement as the "Deposit." Upon its receipt of the Deposit
and a fully executed copy of this Agreement, the Escrow Holder
shall cause the Escrow (as hereinafter defined) to be opened as
provided in Section 2.03, and the Escrow Holder shall place the
Deposit into an interest-bearing escrow account with the interest
thereon to accrue to the benefit of the Developer.
At the Close of Escrow (as hereinafter defined), the
Deposit shall be applied as a credit to the Purchase Price.
(b) Payment of Balance of Purchase Price. The Purchase
Price, less the Deposit, shall be tendered by the Developer to the
Escrow Holder on the Closing Date (as hereinafter defined) for
disbursement to the Agency upon the Close of Escrow as follows:
(i) a promissory note of the Developer (the "Promissory
Note") payable to the Agency in the principal sum of TWO
HUNDRED SIXTY-SIX THOUSAND DOLLARS ($266,000.00). The
Promissory Note shall be secured by a Deed of Trust as set
forth below, and shall include the following terms:
(A) a maturity date of five (5) years from its date
(e.g. the Close of Escrow);
(8) no interest shall accrue on the outstanding
principal balance of the Promissory Note except in the
case of default;
(ii) the balance of the Purchase Price in cash or
immediately available funds. The parties acknowledge that an
estimate as of the date of this Agreement of the balance of
the Purchase Price payable in cash (net of the Promissory Note
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but without deductions for other charges, credits or lien
releases) appears to be approximately ONE HUNDRED FORTY-THREE
THOUSAND DOLLARS ($143,000.00).
A deed of trust covering the Phase II Site shall secure
the Promissory Note (the "Deed of Trust"). The Deed of Trust shall
provide for the partial release and reconveyance of each of the
Phase II Lots prior to maturity of the Promissory Note in
accordance with the following formula: $7,000.00 for each Phase II
Lot requested for partial release plus a partial release and
reconveyance charge of $50.00 for each Phase II Lot released. The
Agency shall agree to subordinate the Deed of Trust to a
construction loan, the proceeds of which shall be used and applied
by the Developer solely for the improvement and development of the
Phase II Site upon the presentation of a payment guarantee of the
Promissory Note in favor of the Agency by the general partners of
the Developer. Such subordination of the Deed of Trust shall be
evidenced by:
(A) a construction loan subordination agreement by
and between the Developer and the Agency for the benefit
of such construction lender which contains the provisions
required under Section 3.05 and the covenant of the
Developer and the construction lender that the
construction loan documentation shall not be amended or
modified in any respect which materially and adversely
affects the interest of the Agency without the approval
of the Agency, which approval shall not be unreasonably
wi thheld. The construction lender shall provide the
Agency with a true and complete set of the construction
loan documents to which the Deed of Trust shall be
subordinate; and
(B) the payment guarantee of the Promissory Note in
favor of the Agency by the general partners of the
Developer. The form of the Promissory Note; the Deed of
Trust, and the payment guarantee are attached hereto as
Exhibit "B" and incorporated herein by this reference.
(c) In the event that (i) the Agency or the Developer
terminates this Agreement pursuant to Section 2.03(a) or (ii) the
Developer does not deliver its Due Diligence Approval Certificate
(as hereinafter defined) to the Escrow Holder pursuant to Section
2.03(b) and this Agreement is terminated; or (iii) the Developer's
conditions precedent to the Close of Escrow described in Section
2.16(1), (2), (3), (5), or (6) are not satisfied (unless
satisfaction has been waived by the Developer) and this Agreement
is terminated; or (iv) the Sites suffer damage prior to the Close
of Escrow, or an action of eminent domain is commenced by a
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governmental entity with respect to the Sites prior
Escrow, and the Developer elects to terminate
pursuant to Section 2.25, then the Deposit (less an
the customary and reasonable escrow cancellation
Escrow Holder) shall be returned to the Developer.
to the Close of
this Agreement
amount equal to
charges of the
Section 2.03. Opening and Closing of Escrow.
(a) The transfer and sale of the Sites shall take place
through an Escrow (the "Escrow") to be administered by First
American Title Insurance Company: Escrow Department or such other
escrow or title insurance company mutually agreed upon by the
Seller and the Agency (the "Escrow Holder"). The Escrow shall be
deemed open ("Opening of Escrow") upon delivery of a fully executed
copy of this Agreement and the Deposit to the Escrow Holder. The
Escrow Holder shall promptly confirm to the parties the escrow
number and the title insurance order number assigned to the Escrow.
(b) In the event that the Developer has not delivered
its Due Diligence Approval Certificate to the Agency and the Escrow
Holder within sixty (60) days from the Opening of Escrow for any
reason, then in such event this Agreement shall terminate upon
written notice to the Escrow Holder from either the Agency or the
Developer, whereupon the Deposit shall be returned by the Escrow
Holder to the Developer (less an amount equal to the customary and
reasonable escrow cancellation charges payable to the Escrow
Holder) without further or separate instruction to the Escrow
Holder, and the parties shall each be relieved and discharged from
all further responsibility or liability under this Agreement.
(c) Provided that the Developer has delivered its Due
Diligence Approval Certificate within the period of time authorized
in Section 2.03(b), then the Closing Date of the Escrow shall occur
within thirty (30) days thereafter, subject to the provisions of
Section 2.16 and Section 2.17. The words "Close of Escrow,"
"Closing Date" and "Closing" shall mean and refer to the date when
the Escrow Holder is in receipt of the Purchase Price and the
related Escrow documents of the parties and the Escrow Holder is in
a position to comply with the final written instructions of the
parties and cause the Agency Grant Deed for the Sites to be
recorded and the policy of insurance for the Sites to be delivered
to the Developer.
(d) The parties mutually covenant and agree to execute
all necessary or appropriate written Escrow instructions as may be
requested by the Escrow Holder. The Developer shall be solely
responsible for the payment of the escrow cancellation costs of the
Escrow Holder in any such event.
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Section 2.04. Escrow Instructions. This Agreement also
consti tutes escrow instructions of the parties to the Escrow
Holder. Additionally, the Developer and the Agency each agree to
execute the customary supplemental escrow instructions of the
Escrow Holder in the form provided by the Escrow Holder to its
clients in real property escrow transactions administered by it.
In the event of a conflict between the additional terms of such
customary supplemental escrow instructions of the Escrow Holder and
the provisions of this Agreement, this Agreement shall supersede
and be controlling. Upon any termination of this Agreement or
cancellation of the Escrow, the Escrow Holder shall forthwith
return all monies (as provided in this Agreement) and documents,
less only the Escrow Holder I s customary and reasonable escrow
cancellation fees and expenses, as set forth herein.
Section 2.05. Conveyance of Title. On or before 12:00
noon on the business day preceding the Closing Date, the Agency
shall deliver to the Escrow Holder a grant deed in the form
attached hereto as Exhibit "c" (the "Agency Grant Deed") duly
executed and acknowledged by the Agency, which Agency Grant Deed
shall convey all of the right, title and interest of the Agency in
the Sites to the Developer as set forth in Section 2.01. The
Escrow Holder shall be instructed to record the Agency Grant Deed
in the Official Records of San Bernardino County, California, if
and when Escrow Holder holds the various instruments and funds for
the accounts of the parties as set forth herein and can obtain for
the Developer a CLTA owner's extended coverage policy of title
insurance ("Title Policy") issued by First American Title Insurance
Company or such other title insurance company mutually agreed upon
by the parties ("Title Company") with liability in an amount equal
to the Purchase Price together with such endorsements to the policy
as may be reasonably requested by the Developer, insuring that the
Sites consist of a total of sixty-two (62) lots pursuant to the
Subdi vision Map Act with fee title to the Sites vested in the
Developer (or the Developer's assignee or nominee) free and clear
of exceptions and subject only to:
(1) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the
Developer pursuant to Section 2.13 below;
(3) applicable provisions of the subdivision maps for
the Sites;
(4) the provision of the Agency Grant Deed;
(5) the applicable provisions of this Agreement; and
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(6) such other title exceptions, if any, resulting from
documents being recorded or delivered through Escrow.
Section 2.06. Additional Closing Obliaations of Agency.
On or before 12:00 noon on the business day preceding the Closing
Date (unless indicated otherwise), the Agency shall deliver to the
Escrow Holder (unless indicated to be delivered directly to the
Developer) copies of the following documents and other items:
(1) a certificate of non-foreign status (the "Non-
Foreign Affidavit") executed by the Agency, in the customary
form provided by the Escrow Holder, and a California Franchise
Tax Board Form 590-RE executed by the Agency;
(2) all soils, seismic, geologic, drainage, toxic waste
and environmental reports, surveys, "as-built" plans and
specifications, working drawings, grading plans, elevations
and similar information with respect to the Sites heretofore
obtained by the Agency, if any, which the Agency has in its
possession andlor control to the extent that originals of such
items have not been delivered previously by the Agency to the
Developer pursuant to Section 2.08 below;
(3)
Statement
Agency;
two (2) duplicate original copies of the Closing
described in Section 2.21, duly executed by the
(4) evidence of the existence, organization and
authori ty of the Agency and of the authority of persons
executing documents on behalf of the Agency reasonably
satisfactory to the Escrow Holder and Title Company; and
(5) any other documents, instruments, funds and records
required to be delivered to the Developer under the terms of
this Agreement which have not been previously delivered.
Section 2.07. Closing Obligations of Developer. On or
before 12:00 noon on the business day preceding the Closing Date,
the Developer shall deliver to the Escrow Holder copies of the
following documents and other items:
(1) an acknowledgment and acceptance of the Agency Grant
Deed, duly executed and acknowledged by the Developer.
(2) two (2) duplicate original copies of the Closing
Statement, duly executed by the Developer.
the
(3)
Deed
an original and duly executed Promissory Note, and
of Trust in recordable form, and the Payment
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Guarantee of the general partner of the Developer, if
applicable.
(4) evidence of the existence, organization and
authority of the Developer and of the authority of persons
executing documents on behalf of the Developer reasonably
satisfactory to the Escrow Holder and the Title Company.
(5) evidence of the submission of improvement and
completion bonds which name the City of San Bernardino as the
beneficiary in a principal amount sufficient in the reasonable
opinion of the City Engineer of the City of San Bernardino and
otherwise satisfactory in form to the City Engineer of the
Ci ty of San Bernardino to assure the completion by the
Developer of the installation of the subdivision public
improvements required for the Phase II Site by a date no later
than three (3) years following the Close of Escrow.
(6) the original and duly executed form of the
construction lender subordination agreement, affecting the
Deed of Trust; provided that such construction loan is in a
condition to be funded concurrently with the Close of Escrow.
(7) any other documents, instruments or funds required
to be delivered by the Developer under the terms of this
Agreement or as otherwise required by Escrow Holder or Title
Company in order to close Escrow which have not previously
been delivered.
Section 2.08.
Inspections and Review.
(a) Due Diligence Items. Within five (5) days after the
execution of this Agreement, the Agency shall deliver true, correct
and complete copies or originals of the following documents and
items (collectively, "Due Diligence Items") to the Developer:
(1) copies of all soils, seismic, geologic, drainage,
toxic waste, engineering, environmental and similar type
reports and surveys (including, but not limited to, any Phase
I andlor Phase II Environmental Site Assessments), surveys,
building grading plans, drawings (including "as-built" plans
and specifications), schematics, blueprints and working
drawings for the improvement of the Sites, if any, in the
possession or control of the Agency and correspondence
relating thereto, if any, within the Agency's possession or
control.
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(2) notices of violations, including, but not limited
to, zoning ordinances, development or building codes affecting
the Sites within the Agency's possession or control.
(3) disclosure of any legal matters affecting the use or
condition of the Sites within the knowledge of the Agency.
Agreement,
meaning:
(b) Certain Definitions. For the purpose of this
the terms set forth below shall have the following
(i) "environmental laws" means all federal, state,
local, or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees,
or requirements of any government authority
regulating, relating to, or imposing liability of
standards of conduct concerning any hazardous
substance (as later defined), or pertaining to
occupational health or industrial hygiene (and only
to the extent that the occupational health or
industrial hygiene laws, ordinances, or regulations
relate to hazardous substances on, under, or about
the Sites), occupational or environmental
conditions on, under, or about the Sites, as now or
may at any later time be in effect, including
without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980
("CERCLA") [42 USC Section 9601 et seq.]; the
Resource Conservation and Recovery Act of 1976
("RCRA") [42 USC Section 6901 et seq.]; the Clean
Water Act, also known as the Federal Water
Pollution Control Act ("FWPCA") [33 USC Section
1251 et eq.]; the Toxic Substances Control Act
("TSCA") [15 USC Section 2601 et seq.]; the
Hazardous Materials Transportation Act ("HMTA") [49
use Section 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 USC Section 6901 et
seq.] the Clean Air Act [42 USC Section 7401 et
seq.]; the Safe Drinking Water Act [42 USC Section
300f et seq.]; the Solid Waste Disposal Act [42 USC
Section 6901 et seq.]; the Surface Mining Control
and Reclamation Act [30 USC Section 101 et seq.]
the Emergency Planning and Community Right to Know
Act [42 USC Section 11001 et seq. ] ; the
Occupational Safety and Health Act [29 USC Section
655 and 657]; the California Underground Storage of
Hazardous Substances Act [H & S C Section 25288 et
seq.]; the California Hazardous Substances Account
Act [H & S C Section 25300 et seq.]; the California
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Safe Drinking Water and Toxic Enforcement Act
[H & S C Section 24249.5 et seq.] the Porter-
Cologne Water Quality Act [Water Code Section 13000
et seq.] together with any amendments of or
regulations promulgated under the statutes cited
above and any other federal, state, or local law,
statute, ordinance, or regulation now in effect or
later enacted that pertains to occupational health
or industrial hygiene, and only to the extent the
occupational health or industrial hygiene laws,
ordinances, or regulations relate to hazardous
substances on, under, or about the Sites, or the
regulation or protection of the environment,
including ambient air, soil, soil vapor,
groundwater, surface water, or land use.
(ii) "hazardous substances" includes without limitation:
those substances included within the definiteness
of "hazardous substance," "hazardous waste,"
"hazardous material," "toxic substance," "solid
waste," or "pollutant or contaminate" in CERCLA,
RCRA, TSCA, HMTA, or under any other environmental
law; and
those substances listed in the United
Department of Transportation (DOT)Table
172.101], or by the EPA, or any successor
as hazardous substances [40 CFR Part 302];
States
[49 CFR
agency,
and
other substances, materials, and wastes that are or
become regulated or classified as hazardous or
toxic under federal, state, or local laws or
regulations; and
any material, waste, or substance that is
(1) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant
to 33 USC Section 1321 or listed pursuant to
33 USC Section 1317,
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(5) a flammable explosive, or
(6) a radioactive material.
Section 2.09. Due Diligence Investigation of the Sites.
(a) Within sixty (60) days from and after the Opening of
Escrow, and subject to the extensions of time set forth below in
Section 2.15, the Developer shall have the right to examine,
inspect and investigate the Sites (the "Due Diligence Period") to
determine whether the condition of the Sites is acceptable to the
Developer in its sole and absolute discretion.
(b) During the Due Diligence Period, the Agency shall
permi t the Developer, its engineers, analysts, contractors and
agents to conduct such physical inspections and testing of the
Si tes as the Buyer deems prudent with respect to the physical
condition of the Sites, including the inspection or investigation
of soil and subsurface soil geotechnical condition, drainage,
seismic and other geological and topographical matters, surveys the
potential presence of any hazardous substances, if any.
Any such investigation work on the Sites may be conducted
by the Developer andlor its agents during any normal business hours
upon seventy-two (72) hours prior notice to the Agency, which
notice will include a description of any investigation work or
tests to be conducted by the Developer on the Sites. Upon the,
Agency's request, the Developer will provide the Agency with copies
of any test results to the extent it is not contractually
prohibi ted from doing so and further, to the extent that the
delivery of such copies to the Agency shall impose no cost or other
liability upon the Developer.
During the Due Diligence Period, the Developer shall also
have the right to investigate all matters relating to the zoning,
use and compliance with other applicable laws which relate to the
use and development and improvement of the Sites. The Agency shall
cooperate fully to assist the Developer in completing such
inspections and investigations of the condition of the Sites. The
Agency shall have the right, but not the obligation, to accompany
the Developer during such investigations andlor inspections.
Section 2.10. Due Diligence Approval Certificate.
Within sixty (60) days following the Opening of Escrow, the
Developer shall complete its investigation of the Sites (subject to
the extensions of time set forth in Section 2.15) and deliver a due
diligence approval certificate signed by the Developer (the "Due
Diligence Approval Certificate") to the Escrow Holder which either:
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(i) indicates that the Developer accepts the condition
of the Sites or;
(ii) contains a description of the matters or exceptions
relating to the condition of the Sites which the
Developer was not able to accept or resolve to its
satisfaction during the Due Diligence Period.
Section 2.11. Books and Records. As part of the
Developer's due diligence investigations during the Due Diligence
Period, the Developer shall be afforded full opportunity by the
Agency to examine all books and records which relate to the Sites
in the possession of the Agency andlor the Agency's agents or
employees, including the reasonable right to make copies of such
books and records. During the Due Diligence Period, the Agency
will make sufficient staff available to assist the Developer with
obtaining access to information relating to the Sites which is in
the possession or control of Agency.
Section 2.12. Condition of the Sites: Developer's
Release. The Developer acknowledges and agrees that it shall be
gi ven a full opportunity under this Agreement to inspect and
investigate every aspect of the Sites during the Due Diligence
Period. The Developer shall accept the delivery of title to the
Sites on the Close of Escrow in an "AS IS," "WHERE IS" and "SUBJECT
TO ALL FAULTS" condition. The Developer further agrees and
represents to the Agency that by a date no later than the end of
the Due Diligence Period, the Developer shall have conducted and
completed (or waived the completion) of all of its independent
investigation of the condition of the Sites which the Developer may
believe to be indicated. The Developer hereby acknowledges that it
shall rely solely upon its own investigation of the Sites and its
own review of such information and documentation as it deems
appropriate for the purpose of accepting the condition and
possession of the Sites. The Developer is not relying on any
statement or representation by the Agency relating to the condition
of the Sites unless such statement or representation is
specifically contained in this Agreement. Without limiting the
foregoing, the Agency makes no representations or warranties as to
whether the Sites presently comply with environmental laws or
whether the Sites contain any hazardous substance, as these terms
are defined in Section 2.08(b) hereof. Furthermore, to the extent
that the Agency has provided the Developer with information
relating to the condition of the Sites, including information and
reports prepared by or on behalf of the City of San Bernardino, the
Agency makes no representation or warranty with respect to the
accuracy, completeness or methodology or content of such reports or
information.
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Without limiting the above, except to the extent covered
by an express representation or warranty of the Agency set forth in
this Agreement, the Developer, on behalf of itself and its
successors and assigns, waives and release the Agency and its
successors and assigns from any and all demands, claims, legal or
administrative proceedings, losses, liability, damages, penalties,
fines, judgments, costs or expenses whatsoever (including, without
limitation, attorneys' fees and costs), whether direct or indirect,
known or unknown, foreseen or unforeseen, arising from or relating
to the physical condition of the Sites or any law or regulation
applicable thereto, including the presence or alleged presence or
harmful or hazardous substances in, under or about the Sites
including, without limitation, any claims under or on account of
(i) CERCLA and similar statutes and any regulations promulgated
thereunder or (ii) any other environmental laws.
The Developer expressly waives any rights or benefits
available to it with respect to the foregoing release under any
provision of applicable law which generally provides that the
general release does not extend to claims which the creditor does
not know of suspect to exist in his or her favor at the time the
release is agreed to, which, if known to such creditor, would
materially affect a settlement. By execution of this Agreement,
the Developer acknowledges that it fully understands the foregoing,
and with this understanding, nonetheless elects to and does assume
all risk for claims known or unknown, described in this Section
2.12 without limiting the generality of the foregoing:
The undersigned acknowledges that it has been advised by legal
counsel and is familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOWN
OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM, MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The undersigned, being aware of this code section,
expressly waives any rights it may have thereunder, as
under any other statutes or common law principles of
effect.
hereby
well as
similar
Initials of Developer~~.
The provisions of thil/~ection 2.12 shall survive
the Close of Escrow.
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Section 2.13. Review and Approval of Condition of Title
by the Developer.
(a) Within fifteen (15) days following the Opening of
Escrow, Agency shall cause to be delivered to the Developer a
preliminary title report or title commitment for a CLTA extended
coverage policy of title insurance issued by the Title Company,
describing the state of title of each of the Sites, together with
copies of all exceptions specified therein and with all easements
plotted but excluding matters disclosed on a survey (the
"Preliminary Title Report"). The Developer shall notify the Agency
in writing ("Developer's Title Objection Notice") of any objections
the Developer may have to the title exceptions contained in the
Preliminary Title Report prior to the expiration of the Due
Diligence Period. The Agency shall have a period of five (5) days
after receipt of the Developer's Title Objection Notice in which to
deliver written notice to the Developer ("Agency's Title Notice")
of the Agency's election to either: (i) agree to remove the
objectionable items prior to the Close of Escrow, or (ii) decline
to remove any such title exceptions and terminate the Agreement and
the Escrow; provided, however, that the Agency shall be required to
remove all monetary liens and encumbrances created by or as a
result of the Agency's activities. If the Agency notifies the
Developer of its election to terminate Escrow rather than remove
the objectionable items, the Developer shall have the right, by
written notice delivered to the Agency within five (5) days after
the Developer's receipt of the Agency's Title Notice, to agree to
accept the Sites subject to the objectionable items, in which event
the Agency's election to terminate the Escrow shall be of no
effect, and the Developer shall take title at the Close of Escrow
subject to such objectionable title items. In the event that the
Escrow is terminated by the Agency under this Section 2.13(a), the
Agency shall be responsible for paying for all Escrow cancellation
costs of the Escrow Holder and the Deposit shall be promptly
returned to the Developer.
(b) The Agency covenants not to further encumber and not
to place any further liens or encumbrances on the Sites, including,
but not limited to, covenants, conditions, restrictions, easements,
liens, options to purchase, options to lease, leases, tenancies, or
other possessory interests without the prior written consent of the
Developer. Upon the issuance of any amendment or supplement to the
Preliminary Title Report which adds additional exceptions
(including, but not limited to, adding additional exceptions for
matters shown on the Survey as hereinafter defined), the foregoing
right of review and approval shall also apply to said amendment or
supplement (provided that the period for the Developer to review
such amendment or supplement shall be the later of the expiration
of the Due Diligence Period or ten (10) days from receipt of the
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amendment or supplement) and Escrow shall be deemed extended by the
amount of time necessary to allow such review and approval in the
time and manner set forth above.
Section 2.14. Survey. The Developer may obtain a survey
of the Property prepared by a land surveyor duly licensed by the
State of California and in compliance with ALTAIASCM standards
("Survey"). The Survey shall be in a form acceptable to the Title
Company for the deletion of the standard survey exception in the
Title Policy relating to boundaries, without the addition of
further exceptions unless the same are acceptable to the Developer
in its sole and absolute discretion. The Developer shall have
until the end of the Due Diligence Period to complete and examine
the Survey and to notify Agency in writing of any objections the
Developer has to the Survey ("Developer's Survey Objection
Notice"). The Agency shall have a period of five (5) days after
receipt of the Developer's Survey Obj ection Notice in which to
deliver written notice to the Developer ("Agency's Survey Notice")
of the Agency's election to either: (i) agree to remove the
objectionable items prior to the Close of Escrow or (ii) decline to
remove such items and terminate the Agreement and the Escrow. If
the Agency notifies the Developer of its intention to not remove
the objectionable items, the Developer shall have the right, by
written notice delivered to the Agency within five (5) days after
the Developer's receipt of Agency 1 s Survey Notice, to agree to
accept the Sites subj ect to the obj ectionable items, in which
event, the Agency's election to terminate the Escrow shall be of no
effect, and the Developer shall accept the Property at the Close of
Escrow subject to such objectionable items. In the event that the
Escrow is terminated by the Agency under this Section 2.14, the
Agency shall be responsible for paying for all Escrow cancellation
costs of the Escrow Holder and the Deposit shall be promptly
returned to the Developer. Prior to the Closing, the Survey shall
be recertified to the Developer, Title Company and the Developer's
lender, if any. The Survey will be performed at the Developer's
sole cost and expense.
Section 2.15. Extension of Due Diligence Period. In the
event Agency fails to provide to the Developer the documents and
other information required by Sections 2.08 by the date(s) set
forth therein, the Due Diligence Period for such information shall
be extended by one (1) day for each day of the delay by the Agency
to permit the Developer to perform an adequate due diligence review
(but not to exceed a total of thirty (30) days.) The Developer
will use its best efforts to notify Agency of any documents the
Agency has failed to deliver to the Developer wi thin the time
periods provided in Sections 2.08 and 2.11. In the event that the
Developer has delivered its Due Diligence Approval Certificate and
thereafter, prior to the Close of Escrow, the Agency presents the
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Developer with any new Due Diligence Item, the Close of Escrow
shall be extended to permit the Developer to perform an adequate
due diligence review of such new item for up to thirty (30) days.
In the event that the Developer may fail to accept such new item
wi thin such additional period of time and cause the Escrow to
close, then in such event either party may terminate this Agreement
and the Escrow as set forth in Section 2.20.
Section 2.16. Developer's Conditions Precedent. The
Developer's obligation to purchase the Sites shall be conditioned
upon the fulfillment of the following conditions precedent, all of
which shall be satisfied (or waived in writing pursuant to Section
2.19) prior to the Close of Escrow:
(1) The Agency shall not have defaulted on any material
term of this Agreement to be performed by the Agency
hereunder, and each representation and warranty made by the
Agency in this Agreement shall remain true and correct. For
purposes of this subsection (1) only, a representation that is
limited to the Agency's knowledge or notice shall be false if
the factual matter that is subject to the representation is
false, notwithstanding any lack of knowledge or notice to the
Agency;
(2) the Developer's approval of the Preliminary Title
Report and the Survey, if applicable, within the time periods
specified in Sections 2.13 and 2.14;
(3) the Developer's approval of the contents of all Due
Diligence Items, and the other investigations of the Sites
made by the Developer andlor its designees pursuant to
Sections 2.08 and 2.09 herein on or before the expiration of
the Due Diligence Period, or such later date if the Due
Diligence Period is extended pursuant to Section 2.15. The
Developer shall be deemed to have disapproved such Due
Diligence Items unless they are approved on or before
5:00 p.m. on the final day of the Due Diligence Period, or
such later date if the Due Diligence Period is extended
pursuant to Section 2.15 herein;
(4) the acceptance or waiver by the Developer of the
formation of a 1913/1915 Act Assessment District (e.g.:
Streets and Highways Code Section 5000 et seq., and Section
8500 et seq.) by the City of San Bernardino, in the sole and
absolute legislative discretion of the City of San Bernardino
(the "Assessment District"). The Assessment District shall
include the Sites and other lands to be developed and improved
by the Developer in the City the "Other Lands"and the
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Assessment District
characteristics:
shall
include
the
following
(i) provide for the issuance of bonds, the
proceeds of which shall be used and applied
for the design, construction and financing of
public improvements and public facilities
capital charges and facilities fees as
necessary or required in connection with the
improvement of the Sites and the Other Lands;
(ii) the net proceeds of such assessment bonds
which shall be available for the acquisition
and construction of the public improvements
and public facilities capital charges and
facilities fees (net of costs of issuance and
funded debt service reserve) for the benefit
of the Sites and the Other Lands shall be at
least:
(A) $7,000.00 in the case of each Phase I Lot
and Phase II Lot;
(B) $20,000.00 in the case of each subdivided
lot comprising the Other Lands; and
(C) the amount of the special assessment lien
on each Phase I Lot and Phase II Lot and
on each subdivided lot comprising the
Other Lands and shall be (or estimated to
be) an amount which is acceptable to the
Developer in its sole and absolute
discretion.
In the event that the Developer has delivered its Due
Diligence Approval Certificate but may thereafter fail to
accept or waiver the condition relating to the Assessment
District set forth in this Section 2.16(4), such action
by the Developer shall be deemed to be a breach of this
Agreement by the Developer for the purposes of the
application of the provisions of Section 2.23 and the
payment of the sum of Twenty Five Thousand Dollars
($25,000.00) to the Agency in the event that either party
may terminate this Agreement as authorized in Section
2.20.
(5) the Developer's approval of any notice of change in
representation or warranty given by the Agency pursuant to
Section 2.24(a)hereof;
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(6) the Title Company has committed to issue the Title
Policy, in favor of the Developer in the form described in
Section 2.05;
(7) the Developer has obtained a construction financing
loan commitment on terms reasonably acceptable to it; and
(8) the Agency shall be satisfied (or waived
satisfaction) of each of the conditions precedent set forth in
Section 2.17 and the Escrow is in a condition to close within
ninety (90) days following the Opening of Escrow.
Section 2.17. The Agency's Conditions Precedent. The
Agency's obligation to convey the Sites to the Developer shall be
conditioned upon the fulfillment of the following conditions
precedent, all of which shall be satisfied (or waived in writing
pursuant to Section 2.19) prior to the Close of Escrow:
(1) the Developer has
Property and submitted
Certification to the Escrow
forth in this Agreement;
accepted the condition of the
its Due Diligence Approval
Holder on or before the date set
(2) the Developer has accepted the condition of title of
each of the Sites on or before the date set forth in Section
2.13;
(3) the Developer has provided the Agency with
satisfactory evidence of the commitment of a lender to provide
construction financing to the Developer for the construction
and improvement of the Project with an initial construction
loan disbursement amount sufficient to construct and improve
not less than twelve (12) of the Phase I Lots;
(4) the Developer shall not be in default of any
material term of this Agreement to be performed by the
Developer hereunder and each representation and warranty of
the Developer made in this Agreement shall remain true and
correct; and
(5) the Developer shall be satisfied (or waive
satisfaction) of each of the conditions precedent set forth in
Section 2.16 and the Escrow is in a condition to close within
ninety (90) days following the Opening of Escrow.
Section 2.18. Delivery of Documents and Purchase Price
After Closing Date by Escrow Holder. The Escrow Holder shall
deliver to the Developer within the (3) business days following the
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Closing Date a conformed copy of the Agency Grant Deed, as recorded
and the policy of title insurance issued by the Title Company in
favor of the Developer. The Escrow Holder shall deliver to the
Agency the Purchase Price, less sums paid to discharge any liens,
less Escrow costs, expenses and the various prorations chargeable
to the Agency hereunder.
Section 2.19. Satisfaction of Conditions. Where
satisfaction of any of the foregoing conditions requires action by
the Developer or by the Agency, each party shall use its diligent
best efforts, in good faith, and at its own cost, to satisfy such
condition. Where satisfaction of any of the foregoing conditions
requires the approval of a party, such approval shall be in such
party's sole and absolute discretion.
Either party may waive any of the conditions set forth in
the Agreement, but any such waiver shall be effective only if
contained in a writing signed by the applicable party and delivered
to the Escrow Holder and the other party.
Section 2.20. Termination. In addition to the right of
each party to terminate the Agreement pursuant to Section 2.03, in
the event each of the conditions set forth in Section 2.16, in the
case of the Developer, or Section 2.17 in the case of the Agency is
not fulfilled within ninety (90) days after the Opening of Escrow
(subject to Section 2.15, if applicable) or waived by the
applicable party pursuant to Section 2.19, either party may, at its
option, terminate this Agreement and the Escrow opened hereunder,
thereby releasing the parties from further obligations hereunder,
and all documents delivered by the Developer to the Agency or the
Escrow Holder shall be returned to the Developer and all documents
delivered by the Agency to the Developer or the Escrow Holder shall
be returned to the Agency, and the Deposit shall be disbursed to
the Developer, except as set forth in Section 2.16(4). Nothing in
this Section 2.20 shall be construed as releasing any party from
liability for any default of its obligations hereunder or breach of
its representations and warranties under this Agreement occurring
prior to the termination of this Agreement andlor the cancellation
of the Escrow.
Section 2.21.
Prorations. Closing Costs. Possession.
(a) Proration of Taxes. Real and personal property
taxes for the Property shall be prorated by the parties to the
Closing Date on the basis of a three hundred sixty-five (365) day
year on the basis that the Agency is responsible for (i) all such
taxes (if any) for the fiscal year of the applicable taxing
authori ty occurring prior to the Current Tax Period (as defined
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below) and (ii) that portion of such taxes for the Current Tax
Period to 11:59 p.m. on the Closing Date, whether or not the same
shall be payable prior to the Closing Date. The phrase "Current
Tax period" refers to the fiscal year of the applicable taxing
authority in which the Closing occurs. All tax prorations shall be
based upon the latest available tax statement. If the tax
statements for the fiscal tax year during which Escrow closes do
not become available until after the Closing Date, then the rates
and assessed values of the previous year, with known changes, shall
be used, and the parties shall re-prorate said taxes outside of
Escrow following the Closing Date when such tax statements become
available. The Agency shall be responsible for and shall payor
reimburse the Developer upon demand for any real or personal
property taxes payable following the Closing Date applicable to any
period of time prior to the Closing Date as a result of any change
in the tax assessment by reason of reassessment, changes in use of
the Property, changes in ownership, errors by the Assessor or
otherwise.
(b) Possession. The Developer shall be entitled to
exclusive possession of the Property immediately upon the Close of
Escrow. Provided that the Developer has delivered its Due
Diligence Approval Certificate and has approved or waived the
satisfaction of the conditions set forth in Section 2.16, the
Agency shall grant the Developer a temporary license to entre the
Sites prior to the Closing Date for the following purposes:
(i) to remove weeds, debris and graffiti from the
Sites;
(ii) to conduct surveys and intrusive soil engineering
testing for repairs to existing perimeter walls
surrounding the Sites;
(iii)
to install
advertising
ordinance;
temporary subdivision land sales
signs as permitted under the City sign
(iv) to install and operate a temporary subdivision
land sales office trailer, as permitted under the
City accessory building ordinance;
(v) to conduct such other work as may be approved by
the Agency in its sole discretion.
Prior to the entry by the Developer onto any portion of the
Sites pursuant to such a license, the Developer shall execute a
written license agreement affecting the Sites in a form to be
provided by the Agency in which the Developer shall agree to
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indemnify, defend and hold the Agency harmless from any adverse
exceptions to title in the Sites which may arise prior to the
Closing Date by virtue of the Developer's entry onto the Sites, or
any portion thereof and the Developer shall further agree to
indemnify, defend and hold the Agency harmless from and against any
other claim, cause of action, liability or damage to persons or to
property resulting from the acti vi ties of the Developer on the
Sites or any portion thereof pursuant to such license agreement.
(c) Title Insurance Premium. Escrow and Closing Costs.
The Agency shall pay the cost of the premium for a CLTA owner's
extended coverage policy of title insurance on the Sites in the
amount of the Purchase Price, together with all title charges
(including endorsements reasonably requested by the Developer to
remove disapproved items shown on the Preliminary Title Report or
Survey pursuant to Sections 2.13 and 2.14 above), and the Agency
shall also pay any documentary or other transfer taxes payable on
account of the conveyance of the Property to the Developer,
together with one-half (~) of the customary and reasonable escrow
fees which may be charged by the Escrow Holder in connection with
the Close of Escrow.
The Developer shall pay the additional cost of the Survey
and requested CLTA survey policy endorsements (to the extent such
endorsements are unrelated to removal of any disapproved items
shown on the Preliminary Title Report or Survey pursuant to
Sections 2.13 and 2.14 above) which exceeds the premium for a CLTA
owner's extended coverage policy of title insurance on the Sites,
plus the cost of recording the Agency Grant Deed, together with
one-half (~) of the cost of the customary and reasonable escrow
fees charged by Escrow Holder in connection with the Close of
Escrow.
Any other Escrow-related transaction expenses or escrow
closing costs incurred by the Escrow Holder in connection with this
transaction shall be apportioned and paid for by the parties to
this Agreement in the manner customary in San Bernardino County,
California.
No later than three (3) business days prior to the
Closing Date, the Escrow Holder shall prepare for approval by the
Developer and the Agency a closing statement ("Closing Statement")
on the Escrow Holder's standard form indicating, among other
things, the Escrow Holder's estimate of all closing costs, pay-off
amounts for the release and reconveyance of all liens secured by
the Sites and prorations made pursuant to this Agreement. The
Developer and the Agency shall assist the Escrow Holder in
determining the amount of all prorations.
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Section 2.22. BREACH OF ARTICLE II BY THE AGENCY;
LIOUIDATED DAMAGES PAYABLE BY THE AGENCY TO THE DEVELOPER. IN THE
EVENT THAT THE AGENCY COMMITS A MATERIAL BREACH OF ITS OBLIGATIONS
UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE DAMAGES
THAT THE DEVELOPER WILL INCUR BY REASON THEREOF ARE AND WILL BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
DEVELOPER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE
AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT EQUAL
TO THE SUM OF TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) AS
LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE DEVELOPER IN THE
EVENT OF SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF THIS
AGREEMENT AND CANCELLATION OF THE ESCROW, AS LIQUIDATED DAMAGES,
WHICH DAMAGES SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY AT
LAW OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE
AGENCY. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS
PARAGRAPH, THE DEVELOPER WAIVES ANY AND ALL RIGHTS WHICH THE
DEVELOPER OTHERWISE WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO
SPECIFICALLY ENFORCE THIS AGREEMENT. THE DEVELOPER AND THE AGENCY
ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS
,
THE PROVIS~/OF THIS SECTION AND EACH AGREES TO BE BOUND BY ITS
TERMS. .
CI/?!C-
Inf~lS of Agency
Section 2.23. BREACH BY THE DEVELOPER OF ARTICLE II;
LIOUIDATED DAMAGES PAYABLE BY THE DEVELOPER TO THE AGENCY. IN THE
EVENT THAT THE DEVELOPER COMMITS A MATERIAL BREACH OF ITS
OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE
DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL
BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE
DEVELOPER, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT
EQUAL TO THE SUM OF TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) AS
LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE AGENCY IN THE
EVENT OF SUCH DEFAULT BY THE DEVELOPER AS LIQUIDATED DAMAGES, WHICH
DAMAGES SHALL BE THE AGENCY'S SOLE AND EXCLUSIVE REMEDY AT LAW OR
IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE DEVELOPER.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE
AGENCY WAIVES ANY AND ALL RIGHTS WHICH THE AGENCY OTHERWISE WOULD
HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS
AGREEMENT. THE AGENCY AND THE DEVELOPER ACKNOWLEDGE AND AGREE THAT
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Ini
THEM HAS READ AND UNDERSTANDS THE P~O~ONS
EACH AGREES TO BE BOUND BY ITS TERMS( ~/-;
I'M ' ~Z
Developer I4{i ials of
OF THIS
EACH OF
SECTION
Agency
Section 2.24. Representations and Warranties.
(a) Warranties and Re9resentations by the Agency. The
Agency hereby makes the following representations, covenants and
warranties and acknowledges that the execution of this Agreement by
the Developer has been made and the acquisition by the Developer of
the Sites will have been made in material reliance by the Developer
on such covenants, representations and warranties:
(1) Warranties True. Each and every undertaking
and obligation of the Agency under this Agreement shall be
performed by the Agency timely when due; and that all
representations and warranties of the Agency under this
Agreement and its exhibits shall be true in all material
respects at the Closing as though they were made at the time
of Closing.
(2) Due Organization. The Agency is a community
redevelopment agency, duly formed and operating under the laws
of California. The Agency has the legal power, right and
authority to enter into this Agreement and to execute the
instruments and documents referenced herein, and to consummate
the transactions contemplated hereby.
(3) Requisi te Action. The Agency has taken all
requisite action and obtained all requisite consents in
connection with entering into this Agreement and the
instruments and documents referenced herein and the
consummation of the transactions contemplated hereby, and no
consent of any other party is required.
(4) Enforceability of Agreement. The persons
executing any instruments for or on behalf of the Agency have
been authorized to act on behalf of the Agency and that the
Agreement is valid and enforceable against the Agency in
accordance with its terms and each instrument to be executed
by the Agency pursuant hereto or in connection therewith will,
when executed, be valid and enforceable against the Agency in
accordance with its terms. No approval, consent, order or
authorization of, or designation or declaration of any other
person, is required in connection with the valid execution and
delivery of and compliance with this Agreement by the Agency.
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(5) Title. Prior to the Closing, the Agency will
be the owner of (and the Developer will acquire hereunder) the
entire right, title and interest in and to each of the Sites
to effectively vest in the Developer good and marketable fee
simple title to each of the Sites, that the Developer will
acquire the Sites free and clear of all liens, encumbrances,
claims, rights, demands, easements, leases or other possessory
interests, agreements, covenants, conditions, and restrictions
of any kind or character (including, without limiting the
generali ty of the foregoing, liens or claims for taxes,
mortgages, conditional sales contracts, or other title
retention agreement, deeds of trust, security agreements and
pledges and mechanics lien) except: (i) property taxes not
delinquent; (ii) the exceptions to title approved by the Buyer
pursuant to Section 2.13 and (iii) the obligation of the
Developer to complete the installation of the subdivision
public improvements required for the Phase II Site.
(6) No Litigation. There are no pending or, to the
best of the Agency's knowledge, threatened claims, actions,
allegations or lawsuits of any kind, whether for personal
injury, property damage, property taxes or otherwise, that
could materially and adversely affect the value or use of the
Property or prohibit the sale thereof, nor to the best of the
Agency's knowledge, is there any governmental investigation of
any type or nature pending or threatened against or relating
to the Sites or the transactions contemplated hereby.
(7) Operation and Condition Pending Closing.
Between the date of this Agreement and the Close of Escrow,
the Agency will continue to manage, operate and maintain the
Sites in the same manner as existed prior to the execution of
this Agreement.
(8) Contracts. There are no contracts or
agreements to which the Agency is a party relating to the
operation, maintenance, service, repair, development,
improvement or ownership of either of the Sites which will
survive the Close of Escrow except as may be set forth in the
Agency Grant Deed or in the Deed of Trust.
(9) Special Studies Zone. The Property is to the
best knowledge of the Agency not located within a designated
earthquake fault zone pursuant to California Public Resources
Code Section 2621.9 and a designated area that is particularly
susceptible to ground shaking, liquefaction, landslides or
other ground failure during an earthquake pursuant to
California Public Resources Code Section 2694.
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(10) The Agency's Knowledge. For purposes of this
Section 2.22, the terms "to the best of the Agency's
knowledge" or "to the Agency's knowledge" shall mean the
actual knowledge of Gary Van Osdel, Executive Director, and
Ronald Winkler, Development Director.
If the Agency becomes aware of any act or circumstance
which would change or render incorrect, in whole or in part, any
representation or warranty made by the Agency under this Agreement,
whether as of the date given or any time thereafter through the
Closing Date and whether or not such representation or warranty was
based upon the Agency's knowledge andlor belief as of a certain
date, the Agency will give immediate written notice of such changed
fact or circumstance to the Developer, but such notice shall not
release the Agency of its liabilities or obligations with respect
thereto.
All representations and warranties contained in this
Section 2.24(a) are true and correct on the date hereof and on the
Closing Date and the Agency's liability for misrepresentation or
breach of warranty, representation or covenant, wherever contained
in this Agreement, shall survive the execution and delivery of this
Agreement and the Close of Escrow.
(b) Warranties and Representations by the Developer.
The Developer hereby makes the following representations, covenants
and warranties and acknowledges that the execution of this
Agreement by the Agency has been made in material reliance by the
Agency on such covenants, representations and warranties:
(1) The Developer is a duly organized and
validly existing California limited partnership. The
Developer has the legal right, power and authority to
enter into this Agreement and the instruments and
documents referenced herein and to consummate the
transactions contemplated hereby. The persons executing
this Agreement and the instruments referenced herein on
behalf of the Developer hereby represent and warrant that
such persons have the power, right and authority to bind
the Developer.
(2) The Developer has taken all requisite
action and obtained all requisite consents in connection
with entering into this Agreement and the instruments and
documents referenced herein and the consummation of the
transactions contemplated hereby, and no consent of any
other party is required.
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(3) This Agreement is, and all agreements,
instruments and documents to be executed by the Developer
pursuant to this Agreement shall be, duly executed by and
are or shall be valid and legally binding upon the
Developer and enforceable in accordance with their
respective terms.
(4) Neither the execution of this Agreement
nor the consummation of the transactions contemplated
hereby shall result in a breach of or constitute a
default under any other agreement, document, instrument
or other obligation to which the Developer is a party or
by which the Developer may be bound, or under law,
statute, ordinance, rule, governmental regulation or any
writ, injunction, order or decree of any court or
governmental body applicable to the Developer or to the
Sites.
(5) The representations and warranties of the
Developer contained in this Section 2.24 (b) shall be
based upon the actual knowledge of John W. Pavelak and
George Mooradian.
All representations and warranties contained in this
Section 2.24(b) are true and correct on the date hereof and on the
Closing Date and Developer's liability for misrepresentation or
breach of warranty, representation or covenant, wherever contained
in this Agreement, shall survive the execution and delivery of this
Agreement and the Closing.
Section 2.25. Damage. Destruction and Condemnation.
Prior to the Agency's delivery of possession of the Sites to
Developer at the Close of Escrow, the risk of loss or damage to the
Sites shall remain upon the Agency. If either of the Sites
suffers damages as a result of any casualty prior to the Close of
Escrow which may materially diminish its value, then the Agency
shall give written notice thereof to Developer promptly after the
occurrence of the casualty. The Developer can elect to either: (i)
accept the Site in its damaged condition or (ii) the Developer may
terminate the Agreement and recover the Deposit as set forth in
Section 2.02. The Developer shall confirm the exercise of its
election under subparagraph (i) or (ii) of the preceding sentence
within thirty (30) days of its receipt of notice from the Agency.
In the event that, prior to the Close of Escrow, any
governmental entity shall commence any actions of eminent domain or
similar type proceedings to take any portion of either of the
Sites, the Agency shall give prompt written notice thereof to
Developer, and Developer shall have the option either: (i) to elect
not to acquire the Sites, terminate the Agreement and recover the
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Deposit as set forth in Section 2.02; or (ii) the Developer may
complete the acquisition of the Sites, in which case Developer
shall be entitled to all the proceeds of such taking; provided
however, that the Agency agrees that it shall not settle or
compromise the proceedings before the Close of Escrow without the
Developer's prior written consent, which consent will not be
unreasonably withheld or delayed). The Developer shall confirm the
exercise of its election under subparagraph (i) or (ii) of the
preceding sentence within thirty (30) days of its receipt of notice
from the Agency.
ARTICLE III
DEVELOPMENT OF THE SITE
Section 3.01.
Development by Developer.
(a) Scope of Development. It is the intent of the
parties that the Sites be developed as follows: the construction
on the Phase I Lots of twenty-four (24) single family detached
residential dwelling units and the construction on the Phase II
Lots of thirty-eight (38) single family detached residential
dwelling units. At least twenty percent (20%) of such residential
dwelling units (each referred to as a "New Home") are to be
reserved for sale TO "Qualified Homebuyers" whose "Adjusted Family
Income" at the time of initial occupancy of each New Home, does not
exceed the household income qualification limits of a "Moderate-
Income Household." As used in the preceding sentence, the words
identified below shall have the following meaning:
"Adjusted Family Income". The words "Adjusted Family Income"
mean the anticipated total annual income (adjusted for family
size) of each individual or family residing or treated as
residing in the New Home as calculated in accordance with
Treasury Regulation 1.167(k) 3b)(3) under the Code, as
adj usted, based upon family size in accordance with the
household income adjustment factors adjusted and amended from
time to time, pursuant to Section 8 of the United States
Housing Act of 1937, as amended.
"Moderate-Income Household." The words "Moderate-Income
Household" mean persons and families whose income does not
exceed one hundred and twenty percent (120%) of the area
median income of the City adjusted for family size
appropriate for the New Home by the State Department of
Housing and Community Development in accordance with
adjustment factors adopted and amended from time to time by
the United States Department of Housing and Urban Development
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pursuant to Section 8 of the United States Housing Act of
1937, and Health and Safety Code Section 50093.
"New Home." The words "New Home" mean and refer to the
completed affordable single-family residential dwelling unit
(including the land and landscape improvements thereon) as
constructed and installed by the Developer or any subdivided
lot on the Sites and sold to the Qualified Homebuyer.
"Qualified Homebuyer." The words "Qualified Homebuyer" mean
the purchaser of the New Home from the Developer (e.g.: all
persons identified as having a property ownership interest
vested in the New Home as of the close of the New Home
Escrow). At the close of the New Home Escrow, the Qualified
Homebuyer shall: (i) have an annual Adj usted Family Income
which does not exceed the household income qualification
limits of a Moderate-Income Household: (ii) shall be a first-
time homebuyer, as this term is defined in Health and Safety
Code Section 50068.5; and (iii)pay no more than an Affordable
Housing Cost for the New Home pursuant to the terms of the
purchase transaction for the New Home, including all sums
payable by the Qualified Homebuyer for its purchase money
mortgage financing, insurance, escrow and other fees and
costs.
"Qualified Residence Period." The words "Qualified Residence
Period" mean the period of time beginning on the Delivery Date
and ending on the date which is ten (10) years after the
Delivery Date.
In addition, the Developer shall design, construct and
install all subdivision public improvements with respect to the
Phase II Site, including, but not limited to, streets, sewers and
sewer lines, power lines and poles, water lines, gas lines, cable
lines and related vaults, storm drains and vaults, traffic access
ways, lighting poles and standards, handicapped access ramps,
construction of tree wells and planting of trees within the public
rights-of-way; provided, however, that at the option of the
Developer, and subject to the approval of the City in its sole and
absolute discretion, the cost of the design, construction and
installation of such subdivision public improvements may be
financed using the proceeds of the Assessment District described in
Section 2.16(4). The Sites will be developed in accordance with
and within the limitations established in the Scope of Development
set forth in Exhibit "0" attached hereto and incorporated herein by
reference.
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(b) The City's zoning ordinance and the City's building
requirements will be applicable to the use and development of the
Sites pursuant to this Agreement. The Developer acknowledges that
any change in the plans for development of the New Homes on the
Sites as set forth in the Scope of Development shall be subject to
the City's zoning ordinance and building requirements, provided,
however that not less than twenty percent (20%) of the New Homes
developed on the Sites shall be reserved for sale and occupancy by
Qualified Homebuyers as set forth in Section 3.01(a) and Section
4.01. No action by the Agency or the City with reference to this
Agreement or related documents shall be deemed to constitute a
waiver of any lawful City requirements which are applicable to the
Si tes or to the Developer, any successor in interest of the
Developer or any successor in interest pertaining to the Sites,
except by modification or variance approved by the City consistent
with this Agreement.
(c) The Scope of Development set forth in Exhibit "0"
is hereby approved by the Agency upon its execution of this
Agreement. The Project shall be developed and completed in
conformance with the approved Scope of Development and any and all
other plans, specifications and similar development documents
required by this Agreement, except for such changes as may be
mutually agreed upon in writing by and between the Developer and
the Agency. The Agency agrees to approve preliminary and final
construction plans and preliminary and final landscaping plans, if
reasonably consistent with the approved Scope of Development.
(d) The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the City Councilor the
Planning Commission of the City with respect to any approvals of
the Project required by such other bodies. If any revisions of the
Scope of Development as approved by the Agency shall be required by
another government official, agency, department or bureau having
jurisdiction over the development of the Sites, the Developer and
the Agency shall cooperate in efforts to obtain waivers of such
revisions, or to obtain approvals of any such revisions which have
been made by the Developer and have thereafter been approved by the
Agency. The Agency shall not unreasonably withhold or delay
approval of such revisions.
(e) Notwithstanding any provision to the contrary in
this Agreement, the Developer agrees to accept and comply fully
wi th any and all lawful and reasonable conditions of approval
applicable to all permits and other governmental actions affecting
the development of the Sites and consistent with this Agreement.
(f)
connection with
The Developer shall
development of the
cause
Sites
landscaping plans in
to be prepared by a
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licensed landscape architect. The Developer shall prepare and
submit to the City for its approval, preliminary and final
landscaping plans for the Sites which are consistent with City Code
requirements. These plans shall be prepared, submitted and
approved within the times respectively established therefor in the
Schedule of Performance as shown on Exhibit "E" attached hereto and
incorporated herein by reference and shall be consistent with the
Scope of Development.
(g) The Developer shall prepare and submit development
plans, construction drawings and related documents for the
development of the Sites consistent with the Scope of Development
to the City. The development plans, construction drawings and
related documents shall be in the form of final drawings, plans and
specifications. Final drawings, plans and specifications are
hereby defined as those which contain sufficient detail necessary
to obtain a building permit from the City.
(h) During the preparation of all drawings and plans
in connection with the development of the Sites, the Developer
shall provide to the Agency regular progress reports to advise the
Agency of the status of the preparation by the Developer, and the
submission to and review by the City of construction plans and
related documents. The Developer shall communicate and consult
with the Agency as frequently as is necessary to ensure that any
such plans and related documents submitted by the Developer to the
City are being processed in a timely fashion.
(i) The Agency shall have the right of reasonable
architectural review and approval of building exteriors and design
of the New Homes to be constructed on the Sites. The Agency shall
also have the right to review all plans, drawings and related
documents pertinent to the development of the Sites in order to
ensure that they are consistent with this Agreement and with the
Scope of Development set forth in Exhibit "0".
(j) The Developer shall timely submit to the City for
its review and approval any and all plans, drawings and related
documents pertinent to the development of the Sites, as required by
the City. The Agency shall cooperate with and shall assist the
Developer in order for the Developer to obtain the approval of any
and all development plans, construction drawings and related
documents submitted by the Developer to the City consistent with
this Agreement wi thin thirty (30) calendar days following the
City's receipt of said plans. Any failure by the City to approve
any of such plans or to issue necessary permits for the development
of the Sites within said thirty (30) calendar day period shall
constitute an enforced delay hereunder, and the Schedule of
Performance shall be extended by that period of time beyond said
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thirty (30) calendar day period in which the City approves said
plans; provided, however, that in the event that the City
disapproves of any of such plans, the Developer shall within thirty
(30) calendar days after receipt of such disapproval revise and
resubmit such plans in accordance with the City's requirements and
in such form and substance so as to obtain the City's approval
thereof.
(k) The Agency shall in good faith use its best efforts
to cause the City to approve in a timely fashion any and all plans,
drawings and documents submitted by the Developer hereunder and to
cause the City not to impose new conditions inconsistent with: (a)
prior plans, drawings and documents approved by the City or (b) the
Scope of Development.
(1) The Agency shall approve any modified or revised
plans, drawings and related documents to which reference is made in
this Agreement wi thin the times established in the Schedule of
Performance as long as such plans, drawings and related documents
are generally consistent with the Scope of Development and any
other plans which have been approved by the Agency. Upon any
disapproval of plans, drawings or related documents, the Agency
shall state in writing the reasons for such disapproval. The
Developer, upon receipt of notice of any disapproval, shall
promptly revise such disapproved portions of the plans, drawings or
related documents in a manner that addresses the reasons for
disapproval and reasonably meets the requirements of the Agency in
order to obtain the Agency's approval thereof. The Developer shall
resubmit such revised plans, drawings and related documents to the
Agency as soon as possible after its receipt of the notice of
disapproval and, in any event, no later than thirty (30) calendar
days thereafter. The Agency shall approve or disapprove such
revised plans, drawings and related documents in the same manner
and within the same times as provided in this Section for approval
or disapproval of plans, drawings and related documents initially
submitted to the Agency.
(m) If the Developer desires to make any change in the
final construction drawings, plans and specifications and related
documents after their approval by the Agency and/or the City, the
Developer shall submit the proposed change in writing to the Agency
andlor the City for approval. The Agency shall notify the
Developer of approval or disapproval thereof in writing wi thin
thirty (30) calendar days after submission to the Agency. This
thirty (30) calendar day period may be extended by mutual consent
of the Developer and the Agency. Any such change shall, in any
event, be deemed to be approved by the Agency unless rejected, in
whole or in part, by written notice thereof submitted by the Agency
to the Developer, setting forth in detail the reasons therefor, and
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such rejection shall be made within said thirty (30) calendar day
period unless extended as permitted herein. The Agency shall use
its best efforts to cause the City to review and approve or
disapprove any such change as provided in Section 3.01(b) hereof.
(n) The Developer, upon receipt of a notice of
disapproval by the Agency andlor the City, may revise such portions
of the proposed change in construction drawings, plans and
specifications and related documents as are rej ected and shall
thereafter resubmit such revisions to the Agency andlor the City
for approval in the manner provided in Section 3.01(b) hereof.
(0) The Developer shall have the right during the
course of construction to make changes in construction concerning
the interior of structures and "minor field changes" without
seeking the approval of the Agency; provided, however, that such
changes do not affect the type of use to be conducted within all or
any portion of a structure. Said "minor field changes" shall be
defined as those changes from the approved final construction
drawings, plans and specifications which have no substantial effect
on the improvements and are made in order to expedite the work of
construction in response to field conditions. Nothing contained in
this Section shall be deemed to constitute a waiver of or change in
the City's Building Code requirements governing such "minor field
changes" or in any and all approvals by the City otherwise required
for such "minor field changes."
(p) The cost of constructing the New Homes and all
other improvements on the Phase I Site and adjacent thereto, and
the costs of constructing all improvements on the Phase II Site and
adjacent thereto, including all subdivision public improvements in
connection with the Phase II Site, all as set forth in the Scope of
Development, shall be borne by the Developer, except as may be
financed by the assessment district described in Section 2.16(4).
(q) The Developer shall at its expense cause to be
prepared, and shall pay any and all fees pertaining to the review
and approval thereof by the City, all required construction,
planning and other documents reasonably required by governmental
bodies pertinent to the development of the Sites hereunder
including, but not limited to, specifications, drawings, plans,
maps, permit applications, land use applications, zoning
applications and design review documents.
(r) The Developer shall pay for any and all costs,
including but not limited to the costs of design, construction,
relocation and securing of permits for utility improvements and
connections, which may be required in developing the Sites
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(including the development of all subdivision public improvements
with respect to the Phase II Site). The Developer shall obtain any
and all necessary approvals prior to the commencement of applicable
portions of said construction, and the Developer shall take
reasonable precautions to ensure the safety and stability of
surrounding properties during said construction.
(s) The Developer shall begin and complete all
construction and development and undertake all obligations and
responsibilities of the Developer within the times specified in the
Schedule of Performance shown in Exhibit "E" attached hereto, or
within such reasonable extensions of such times as may be granted
by the Agency or as otherwise provided for in this Agreement. The
Schedule of Performance shall be subject to revision from time to
time as mutually agreed upon in writing by and between the
Developer and the Agency. Any and all deadlines for performance by
the parties shall be extended for any times attributable to delays
which are not the fault of the performing party and are caused by
the other party, other than periods for review and approval or
reasonable disapprovals of plans, drawings and related documents,
specifications or applications for permits as provided in this
Agreement.
(t) Prior to and during the period of construction of
the New Homes and related off-site public improvements on the
Sites, the Developer shall submit to the Agency written progress
reports when and as reasonably requested by the Agency but in no
event more frequently than every four (4) weeks. The reports shall
be in such form and detail as may reasonably be required by the
Agency, and shall include a reasonable number of construction
photographs taken since the last such report submitted by the
Developer. In addition, the Developer will attend Agency meetings
when requested to do so by Agency Staff.
(u) Prior to the commencement of any construction, the
Developer shall furnish, or shall cause to be furnished, to the
Agency duplicate originals or appropriate certificates of public
indemni ty and liability insurance in the amount of One Million
Dollars ($1,000,000.00) combined single limit, naming the Agency
and the City as additional insureds. Said insurance shall cover
comprehensi ve general liability including, but not limited to,
contractual liability; acts of subcontractors; premises-operations;
explosion, collapse and underground hazards, if applicable; broad
form property damage, and personal injury including libel, slander
and false arrest. In addition, the Developer shall provide to the
Agency adequate proof of comprehensive automobile liability
insurance covering owned, non-owned and hired vehicles, combined
single limit in the amount of One Million Dollars ($1,000,000.00)
each occurrence; and proof of workers' compensation insurance. Any
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and all insurance policies required hereunder shall be obtained
from insurance companies admitted in the State of California and
rated at least B+: XII in Best's Insurance Guide. All said
insurance policies shall provide that they may not be canceled
unless the Agency and the City receive written notice of
cancellation at least thirty (30) calendar days prior to the
effective date of cancellation. Any and all insurance obtained by
the Developer hereunder shall be primary to any and all insurance
which the Agency andlor City may otherwise carry, including self
insurance, which for all purposes of this Agreement shall be
separate and apart from the requirements of this Agreement. Any
insurance policies governing the Sites as obtained by the Agency
shall not be transferred from the Agency to the Developer.
Appropriate insurance means those insurance policies approved by
the Agency Counsel consistent with the foregoing. Any and all
insurance required hereunder shall be maintained and kept in force
until the Agency has issued the final Certificate of Completion in
connection with the development of the Sites.
(v) The Developer for itself and its successors and
assigns agrees that in the construction of the improvements on the
Phase I Lots, the construction of the improvements on the Phase II
Lots and the construction of all subdivision public improvements
with respect to the Phase II Site provided for in this Agreement,
the Developer will not discriminate against any employee or
applicant for employment because of sex, marital status, race,
color, religion, creed, national origin, or ancestry.
Notwithstanding the foregoing, the Developer will use best efforts
to offer employment opportunities to local residents and will seek
to acquire goods and services from local vendors.
(w) The Developer shall carry out its construction of
the improvements on the Phase I Lots and the Phase II Lots and its
construction of the subdivision public improvements with respect to
the Phase II Site in conformity with all applicable laws, including
all applicable state labor standards and requirements.
(x) The Developer shall, at its own expense, secure or
shall cause to be secured, any and all permits which may be
required for such construction, development or work by the City or
any other governmental agency having jurisdiction thereof. The
Agency shall cooperate in good faith with the Developer in the
Developer's efforts to obtain from the City or any other
appropriate governmental agency any and all such permits and, upon
completion of applicable portions of the development of the Sites,
certificates of occupancy.
(y) Officers, employees, agents or representatives of
the Agency and the City shall have the right of reasonable access
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to the Sites, without the payment of charges or fees, during normal
construction hours during the period of construction of the Project
for the purposes of this Agreement including, but not limited to,
the inspection of the work being performed in constructing the
residences on the Sites. Such officers, employees, agents or
representatives of the Agency andlor the City shall be those
persons who are so identified by the Executive Director. Any and
all officers, employees, agents or representatives of the Agency
and the City who enter the Sites pursuant hereto shall identify
themselves at the job site office upon their entrance on to the
Sites and shall at all times be accompanied by a representative of
the Developer while on the Sites; provided, however, that the
Developer shall make a representative of the Developer available
for this purpose at all times during normal construction hours upon
reasonable notice from the Agency. The Agency shall indemnify,
defend and hold the Developer harmless from injury, property damage
or liability arising out of the exercise by the Agency andlor the
City of this right of access, other than injury, property damage or
liability relating to the negligence of the Developer or its
officers, agents or employees.
(z) The Agency shall inspect relevant portions of the
construction site prior to issuing any written statements
reflecting adversely on the Developer's compliance with the terms
and conditions of this Agreement pertaining to development of the
Sites.
Section 3.02.
[RESERVED -- NO TEXT]
Section 3.03. Taxes. Assessments. Encumbrances and
Liens. The Developer shall pay prior to the delinquency all real
property taxes and assessments assessed and levied on or against
the Phase I Site and the Phase II Site subsequent to the Close of
Escrow and the conveyance to the Developer of title to the Phase I
Site and the Phase II Site. The Developer shall not place and
shall not allow to be placed on the Phase II Site any mortgage,
trust deed, deed of trust, encumbrance or lien not otherwise
authorized by this Agreement. The Developer shall remove, or shall
have removed, any levy or attachment made on the Phase II Site, or
shall assure the satisfaction thereof, within a reasonable time but
in any event prior to a sale of the Phase II Site, or any portion
thereof. Nothing herein contained shall be deemed to prohibit the
Developer from contesting the validity or amounts of any tax
assessment, encumbrance or lien, nor to limit the remedies
available to the Developer in respect thereto. The covenants of
the Developer set forth in this Section relating to the placement
of any unauthorized mortgage, trust deed, deed of trust,
encumbrance or lien, shall remain in effect only until all
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Certificates of Completion have been recorded with respect to
development of the Sites.
Section 3.04.
Prohibition Against Transfer.
(a) Prior to the recordation of all Certificates of
Completion with respect to development of the Sites as set forth in
Section 3.07 of this Agreement, the Developer shall not, without
prior written approval of the Agency, or except as permitted by
this Agreement, (i) assign or attempt to assign this Agreement or
any right herein or (ii) make any total or partial sale, transfer,
conveyance, lease, leaseback, or assignment of the whole or any
part of the Phase I Site or the Phase II Site or the improvements
thereon. This prohibition shall not apply to any of the following:
(1) the reasonable grant by the Developer of utility easements or
permits to facilitate the development of the Sites; (2) the
assignment of all of the Developer's interest in this Agreement and
the Sites to a limited liability company of which the Developer is
the managing member (and the assumption of such interest by such
limi ted liability company); and (3) sales by the Developer of
individual residential lots to individual purchasers of New Homes.
(b) It is understood and agreed by the Developer that
neither the Developer, nor its assigns or successors in interest to
the Sites or this Agreement, shall use or otherwise sell, transfer,
convey, assign, lease, leaseback or hypothecate the Phase I Site or
the Phase II Site or any portion thereof to any entity or party, or
for any use of the Phase I Site or the Phase II Site, that is
partially or wholly exempt from the payment of real property taxes
pertinent to the Phase I Site or the Phase II Site, or any portion
thereof, or which would cause the exemption of the payment of all
or any portion of such real property taxes.
(c) In the absence of specific written agreement or
approval by the Agency, no unauthorized sale, transfer, conveyance,
lease, leaseback or assignment of the Phase I Site or the Phase II
Site shall be deemed to relieve the Developer or any other party
from any obligations under this Agreement.
Section 3.05.
Security Financing: Right of Holders.
(a) Notwithstanding any provision of Section 3.04 to
the contrary, mortgages, deeds of trust, or any other form of lien
required for any reasonable method of financing the construction
and improvement of the Sites are permitted before the recordation
of any Certificate of Completion (referred to in Section 3.07 of
this Agreement). The Developer shall notify the Agency in writing
in advance of any mortgage, deed of trust, or other form of lien
for financing if the Developer proposes to enter into the same
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before the recordation of any Certificate of Completion. The
Developer shall not enter into any such conveyance for construction
financing without the prior written approval of the Agency, which
approval the Agency may grant if: (i) any such conveyance is given
to a responsible financial or lending institution including,
without limitation, banks, savings and loan institutions, insurance
companies, real estate investment trusts, pension programs and the
like, or other acceptable persons or entities for the purpose of
constructing the New Homes on the Sites, (ii) such loan contains
customary construction lender disbursement controls including
covenants that no proceeds of such loan shall be disbursed to the
Developer as a "land draw" (except to discharge the security
interest of the Agency in one or more of the Phase II Lots) and
(iii) no more than twelve (12) of the Phase II Lots under the
Agency's Deed of Trust shall be subordinate to such construction
loan at any time.
(b) The Developer shall promptly notify the Agency of
any mortgage, deed of trust or other refinancing, encumbrance or
lien that has been created or attached thereto prior to completion
of the construction of the improvements on the Sites whether by
voluntary act of the Developer or otherwise; provided, however,
that no notice of filing of preliminary notices or mechanic's liens
need be given by the Developer to the Agency prior to suit being
filed to foreclose such mechanic's lien.
(c) The words "mortgage" and "deed of trust" as used
herein shall be deemed to include all other customary and
appropriate modes of financing real estate construction and land
development. The Agency agrees to make such amendments regarding
the rights of any lender as the approved lender shall reasonably
require.
(d) The holder of any mortgage, deed of trust or other
security interest authorized by this Agreement shall in no manner
be obligated by the provisions of this Agreement to construct or
complete the improvement of the sites or to guarantee such
construction or completion, except to the extent that the
Developer, or its permitted successor or assign including such
holder of a mortgage, deed of trust or other security shall be
obligated to complete the installation of the subdivision public
improvements for Phase II Lots by a date no later than the fifth
(5th) anniversary following the Close of Escrow. Nothing in this
Agreement shall be deemed to permit or authorize any such holder to
devote either the Phase I Site or the Phase II Site to any other
use, or to construct any other improvement thereon, except those
uses or improvements provided for or authorized by this Agreement.
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(e) Whenever the Agency shall deliver any notice or
demand to the Developer with respect to any breach or default by
the Developer in the completion of construction of the
improvements, or any breach or default of any other obligations
which, if not cured by the Developer, entitle the Agency to
terminate this Agreement or exercise its right to re-enter the
Sites, or a portion thereof under Section 5.07, the Agency shall at
the same time deliver to each holder of record of any mortgage,
deed of trust or other security interest authorized by this
Agreement a copy of such notice or demand. Each such holder shall
(insofar as the rights of the Agency are concerned) have the right,
at its option, to commence the cure or remedy of any such default
and to diligently and continuously proceed with such cure or
remedy, within sixty (60) calendar days after the receipt of the
notice; 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 sixty (60) calendar days
after obtaining possession; provided that in the case of a default
which cannot with diligence be remedied or cured, or the remedy or
cure of which cannot be commenced, within such sixty (60) calendar
day period, such holder shall have such additional time as is
reasonably necessary to remedy or cure such default of the
Developer. Nothing contained in this Agreement shall be deemed to
permi t or authorize such holder to undertake or continue the
construction or completion of the improvements (beyond the extent
necessary to conserve or protect the improvements or construction
already made) without first having expressly assumed the
Developer's obligations by written agreement satisfactory to the
Agency. The holder in that event must agree to complete, in the
manner provided in this Agreement, the improvements to which the
lien or title of such holder relates and must submit evidence
satisfactory to the Agency that it has the qualifications and
financial responsibility necessary to perform such obligations.
Any such holder completing such improvements in accordance herewith
shall be entitled, upon written request made to the Agency, to be
issued appropriate Certificates of Completion by the Agency.
(f) In any case where, one hundred eighty (180)
calendar days after default by the Developer in the completion of
construction of improvements under this Agreement, the holder of
any mortgage, deed of trust or other security interest creating a
lien or encumbrance upon the Property or any portion thereof has
not exercised the option to construct the applicable portions of
the proj ect, or has exercised the option but has not proceeded
diligently and continuously with construction, the Agency may
purchase the mortgage, deed of trust or other security interest by
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payment to the holder of the amount of the unpaid debt, including
principal, accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by the Developer
under the loan documents between holder and the Developer. If the
ownership of either the Phase I Site or the Phase II Site has
vested in the holder, the Agency, if it so desires, shall be
entitled to a conveyance from the holder to the Agency upon payment
to the holder of an amount equal to the sum of the following:
1. The unpaid mortgage, deed of trust or other
security interest debt, including principal,
accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder
by the Developer under the loan documents between
the holder and the Developer, at the time title
became vested in the holder (less all appropriate
credits, including those resulting from collection
and application of rentals and other income
received during foreclosure proceedings.)
2. All expenses, if any, incurred by the holder with
respect to foreclosure.
3. The net expenses, if any (exclusive of general
overhead), incurred by the holder as a direct
result of the subsequent ownership or management
of the Phase I Site or the Phase II Site, such as
insurance premiums and real estate taxes.
4. The cost of any improvements made by such holder.
5. An amount equivalent to the interest that would
have accrued on the aggregate on such amounts had
all such amounts become part of the mortgage or
deed of trust debt and such debt had continued in
existence to the date of payment by the Agency.
6. After expiration of the aforesaid one hundred
eighty (180) calendar day period, the holder of
any mortgage, deed of trust or other security
affected by the option created by this Section,
may demand, in writing, that the Agency act
pursuant to the option granted hereby. If the
Agency fails to exercise the right herein granted
within sixty (60) calendar days from the date of
such written demand, the Agency shall be
conclusively deemed to have waived such right of
purchase of the applicable portion of either the
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Phase I Site or the Phase II Site or the mortgage,
deed of trust or other security interest.
(g) In the event of a default or breach by the
Developer of a mortgage, deed of trust or other security interest
with respect to the Phase I Site or the Phase II Site (or any
portion thereof) prior to the issuance of a Certificate of
Completion for the Phase I Site or the Phase II Site (or any
portion thereof), and the holder has not exercised its option to
complete the development, the Agency may cure the default but is
under no obligation to do so prior to completion of any
foreclosure. In such event, the Agency shall be entitled to
reimbursement from the Developer of all costs and expenses incurred
by the Agency in curing the default. The Agency shall also be
deemed to have a lien of the Agency as may arise under this Section
3.05(g) upon the Phase I Site or the Phase II Site (or any portion
thereof) to the extent of such costs and disbursements. Any such
lien shall be subordinate and subject to mortgages, deeds of trust
or other security instruments executed by the Developer for the
purpose of obtaining the funds to construct and improve the Sites
as authorized herein.
Section 3.06. Right of the Agency to Satisfy Other Liens
on the Sites after Conveyance of Title. After the conveyance of
title to the Sites by the Agency to the Developer and prior to the
recordation of all Certificates of Completion (referred to in
Section 3.07 of this Agreement), and after the Developer has had a
reasonable time to challenge, cure or satisfy any unauthorized
liens or encumbrances on the Sites, the Agency shall after sixty
(60) calendar days prior written notice to the Developer have the
right to satisfy any such liens or encumbrances; provided, however,
that nothing in this Agreement shall require the Developer to pay
or make provisions for the payment of any tax, assessment, lien or
charge so long as the Developer in good faith shall contest the
validity or amount thereof, and so long as such delay in payment
shall not subject the Sites, or any portion thereof, to forfeiture
or sale.
Section 3.07. Certificates of Completion.
(a) Following the written request therefor by the
Developer and the completion of construction of the improvements
on a Phase I Lot or a Phase II Lot, excluding minor building
"punch-list" items to be completed by the Developer upon said Lot,
the Agency shall furnish the Developer with a Certificate of
Completion for the Phase I Lot or the Phase II Lot, as applicable,
as the Agency may, in its sole discretion, deem appropriate,
substantially in the form set forth in Exhibit "F" attached hereto.
A Certificate of Completion with respect to a Phase II Lot shall be
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furnished to the Developer only in conjunction with a Developer's
request for a release of said Phase II Lot from the Deed of Trust
and the payment by the Developer of all amounts required in
connection with such request for release. Notwithstanding any
provision set forth herein to the contrary, the completion of
construction of the improvements on a Phase I Lot or a Phase II Lot
shall be deemed to include the completion of construction of a
residence on said Lot and any and all parking, front yard and
landscaping and related improvements necessary to support or which
meet the requirements applicable to the residence and its use and
occupancy on said Lot. Further, the completion of construction and
development of improvements on a Phase II Lot shall be deemed to
include the completion of all subdivision public improvements with
respect to the Phase II Site.
(b) The Agency shall not unreasonably withhold the
issuance of a Certificate of Completion. A Certificate of
Completion shall be, and shall so state, that it is a conclusive
determination of satisfactory completion of all of the obligations
of this Agreement with respect to the development of a Phase I Lot
or a Phase II Lot, as applicable. After the recordation of the
Certificate of Completion, any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the
Phase I Lot or the Phase II Lot to which it pertains shall not
(because of such ownership, purchase, lease or acquisition) incur
any obligation or liability under this Agreement, except that such
party shall be bound by any covenants contained in the grant deed
or other instrument of transfer which grant deed or other
instrument of transfer shall include the provisions of Section 4.01
through 4.05, inclusive, of this Agreement. Neither the Agency nor
any other person, after the recordation of a Certificate of
Completion for a Phase I Lot or a Phase II Lot, shall have any
rights, remedies or controls that it would otherwise have or be
entitled to exercise under this Agreement with respect to said Lot,
as a result of a default in or breach of any provision of this
Agreement, and the respective rights and obligations of the parties
shall be limited to those set forth in the grant deed.
(c) Any Certificate of Completion shall be in such form
as to permit it to be recorded in the Recorder's Office of the
County where the Property is located.
(d) If the Agency refuses or fails to furnish a
Certificate of Completion for a Phase I Lot or a Phase II Lot after
written request from the Developer, the Agency shall, within
fifteen (15) calendar days of the written request or within three
(3) calendar days after the next regular meeting of the Agency,
whichever date occurs later, provide to the Developer a written
statement setting forth the reasons with respect to the Agency's
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refusal or failure to furnish a Certificate of Completion. The
statement shall also contain the Agency's opinion of the action the
Developer must take to obtain a Certificate of Completion. If the
reason for such refusal is confined to the immediate unavailability
of specific items or materials for construction or landscaping at
a price reasonably acceptable to the Developer or other minor
building "punch-list" items, the Agency may issue its Certificate
of Completion upon the posting of a bond or irrevocable letter of
credit, reasonably approved as to form and substance by the Agency
Counsel and obtained by the Developer in an amount representing a
fair value of the work not yet completed as reasonably determined
by the Agency. If the Agency shall have failed to provide such
written statement within the foregoing period, the Developer shall
be deemed conclusively and without further action of the Agency to
have satisfied the requirements of this Agreement with respect to
the Phase I Lot or the Phase II Lot as if a Certificate of
Completion had been issued therefor.
(e) A Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation of
the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements
described herein, or any part thereof. A Certificate of Completion
shall not be deemed to constitute a notice of completion as
referred to in Section 3093 of the California Civil Code, nor shall
it act to terminate the continuing covenants or conditions
subsequent contained in the Agency Grant Deed attached hereto as
Exhibit "C".
ARTICLE IV
USE OF THE SITE
Section 4.01. Uses.
(a) Developer covenants and agrees for itself, its
successors, and assigns that at least twenty percent (20%) of the
New Homes to be developed, constructed and improved on the Sites,
shall be reserved for sale and occupancy by Qualified Homebuyers
whose Adjusted Family Income at the time of initial occupancy of
each New Home does not exceed the household income qualification
limi ts of a Moderate-Income Household for the lesser period of
twenty (20) years following the recordation of this Agreement or
for the Qualified Residence Period of each such New Home.
The Developer shall cause to be recorded at the time of
close of each "New Home Escrow" for which the provisions of this
Section 4.01(a) are applicable the form of the community
redevelopment affordability covenants and restrictions
substantially in the form as attached hereto Exhibit "G." The
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selection of individual New Homes in the Sites which shall be
subject to the provisions of this Section 4.01(a) shall be at the
discretion of the Developer.
The covenant of this Section 4.01(a) shall run with the
land.
(b) The Developer further covenants and agrees for
itself, its successors and assigns that the Sites shall be improved
and developed in accordance with the Scope of Development.
Developer covenants to develop the Sites in conformity with all
applicable laws. The covenants of this Section 4.01(b) shall also
run with the land.
(c) It is understood and agreed by the Developer that
neither the Developer, nor its assigns or successors shall use or
otherwise sell, transfer, convey, assign, lease, leaseback or
hypothecate the Sites or any portion thereof to any entity or
party, or for any use of the Sites, that is partially or wholly
exempt from the payment of real property taxes pertinent to the
Sites, or any portion thereof, or which would cause the exemption
of the payment of all or any portion of such real property taxes.
Section 4.02. Maintenance of the Sites. The Developer
covenants and agrees for itself, its successors, and assigns to
maintain the Sites in a good condition free from any accumulation
of debris or waste material, subject to normal construction job-
site conditions, and shall maintain in a neat, orderly, healthy and
good condition the landscaping required to be planted in accordance
with the Scope of Development. In the event the Developer, or its
successors or assigns, fails to perform the maintenance as required
herein, the Agency shall have the right, but not the obligation, to
enter the Sites and undertake, such maintenance activities. In
such event, the Developer shall reimburse the Agency for all
reasonable sums incurred by it for such maintenance activities.
The obligation of the Developer under this Section 4.02 shall be
discharged for each Lot at such time as a Certificate of Completion
for the Lot is recorded.
Section 4.03. Obligation to Refrain from Discrimination.
The Developer covenants and agrees for itself, its successors, its
assigns and every successor in interest to the Sites 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, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Sites; nor shall the Developer, itself
or any person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with
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reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessee or vendees of the Sites.
Section 4.04. Form of Nondiscrimination and Nonsegrega-
tion Clauses. The Developer covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Property, or any part thereof, that the Developer, such successors
and such assigns shall refrain from restricting the sale, lease,
sublease, rental, transfer, use, occupancy, tenure or enjoyment of
the Sites (or any part thereof) on the basis of sex, marital
status, race, color, religion, creed, ancestry or national origin
of any person. All deeds, leases or contracts pertaining thereto
shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for
itself, its successors and assigns, and all persons claiming
under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on
account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed, nor shall the grantee or any person claiming
under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessee, or vendees in the premises
herein conveyed. The foregoing covenants shall run with the
land."
(b) In leases: "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons claiming
under or through them, and this lease is made and accepted
upon and subj ect to the following conditions: That there
shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry,
in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of the premises herein leased nor shall
the lessee itself, or any person claiming under or through it,
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy, of tenants lessees,
sublessee, subtenants, or vendees in the premises herein
leased."
(c)
against or
account of
In contracts: "There shall be no discrimination
segregation of any person or group of persons on
race, color, creed, religion, sex, marital status,
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national origin, or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed or leased, nor shall the transferee or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or
vendees of the premises herein transferred." The foregoing
provision shall be binding upon and shall obligate the
contracting party or parties and any subcontracting party or
parties, or other transferees under the instrument.
Section 4.05. Effect and Duration of Covenants. The
covenants established against discrimination shall remain in effect
in perpetuity. The covenants respecting uses and occupancy of each
of the thirteen (13) New Homes which are designated by the
Developer to be initially occupied by a Qualified Homebuyer as set
forth in Section 4.01(a), shall remain in effect for the Qualified
Residence Period of each such New Home, and shall run with the land
and shall constitute equitable servitudes thereon, and shall,
wi thout regard to technical classification and designation, be
binding for the benefit and in favor of the Agency, its successors
and assigns and the City.
The Agency is deemed the beneficiary of the terms an
provisions of this Agreement and of the covenants running with the
land for and in its own rights and for the purposes of protecting
the interests of the community. The Agency 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 such
other proper proceedings to enforce the curing of such breaches to
which it or any other beneficiary of such covenants may be
entitled, including, without limitation, to specific performance,
damages and injunctive relief. The Agency shall have the right to
assign all of its rights and benefits hereunder to the City.
Section 4.06. Affordable HousinG Development Contingent
Interest Fee Payment by Developer to the Aaency.
(a) As additional consideration payable by the
Developer to the Agency, separate from the Purchase Price, the
Developer shall also pay the Agency the "Contingent Interest Fee"
in an amount not to exceed the sum of Sixty-Two Thousand Dollars
($62,000.00) as set forth in this Section 4.06. The Contingent
Interest Fee, if any, shall be payable to the Agency solely from
the "Profit," as defined in Section 4.06 (b), realized by the
Developer from the sale or transfer (other than a permitted
transfer as set forth in Section 3.04) of its interest in the Sites
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or this Development. The Contingent Interest Fee shall be due and
payable to the Agency in two (2) installments, as follows:
(i) within thirty (30) days following the
earlier date of
(A) the close of the last New Home Escrow for
the sale of all of the completed New
Homes in Phase I Site; or
(B) the sale, transfer, assignment or other
hypothecation of the interest of the
Developer in all of the Phase I lots to a
third party, other than to New Homeowners
or except for a permitted construction-
related financing authorized by Section
3.04.
(ii) within thirty (30) days following the
earlier date of either:
(A) the close of the last New Home Escrow
for the sale of all of the completed New
Homes in the Phase II site; or
(B) the sale, transfer, assignment or other
hypothecation of the interest of the
Developer in all of the Phase II Lots to
a third party other than to New
Homebuyers or except for a permitted
construction-related financing authorized
under Section 3.04.
(b) For the purpose of this Section 4.06, the words and
phrases set forth below shall have the following meanings:
"Contingent Interest Fee" means and refers to a sum not
to exceed Sixty-Two Thousand Dollars ($62,000.00) which
shall be payable to the Agency at the times set forth in
Section 4.06(a)from the Profit of the Developer on the
Project.
"Profit of the Developer" means and refers to the gross
amount realized by the Developer upon the sale or
transfer of its interest in the Agreement or in the
Sites, after deducting the Project Costs incurred during
the course of the acquisition and development of the
Sites and the Project.
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"Proiect Costs" means and refers to the aggregate of the
following customary and commercially reasonable costs
incurred by the Developer in connection with the
acquisition and development of the Project:
(A) the Purchase Price of the Sites payable
to the Agency;
(B) the cost of site preparation;
(C) architectural, engineering, legal,
accounting, consulting, and other fees
paid in connection with the planning,
execution and financing of the proj ect
including the cost of furnishing one or
more models of the model homes to be
constructed at the Sites;
(D)
(E)
(F)
(G)
(H)
(I)
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the costs of
surveys, plans
in (C) above;
other necessary studies,
and permits not included
the cost of insurance, interest and
financing for the construction of the New
Homes, surety and completion bonds,
property taxes, and special assessment
costs incurred during the course of
construction of this Project;
the cost of construction of the New Homes
on the Sites;
the cost of all other improvements to the
Sites including landscaping, fencing,
site preparation and the installation of
streets, sewers, utilities, and other
off-site improvements;
indirect costs of the Developer for the
construction of the New Homes, including
the cost of a construction
superintendent, and construction security
by private patrol services;
New Home sales marketing and advertising
costs and the cost payable by the
Developer as escrow costs, fees and
charges upon the sale of each New Home to
a Home Buyer plus real estate sales
48
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commissions
third party
time of sale
paid by the Developer to
real estate brokers at the
of each New Home;
(J) A developer fee payable to the Developer
of five percent (5%) of the gross selling
price of each completed New Home.
(c) From and after the Close of Escrow until the
Contingent Interest Fee is paid in full, the Developer shall
provide the Agency with the following financial reports relating to
the Sites and the Project:
(i) within forty-five (45) days of the end of
each calendar quarter and upon the
request of the Agency, a report on the
status of the Project, which shall
include, at a minimum, the trial balance,
general ledger, cash receipt journal,
cash disbursements journal, sales
journal, job cost summary compared with
the Project proforma, bank statement, and
quarterly profit and loss statement, and
schedule of cash flows and a weekly sales
report for New Homes, as applicable; and
(ii) within one hundred twenty (120) days
after the end of each fiscal year, an
annual unaudited financial statement,
prepared by the Developer for the
Project, or, if obtained by the
Developer, an audited financial
statement.
(d) The Developer shall provide the Agency with a
suitably detailed written accounting prepared in accordance with
generally-accepted accounting principals of the amount of the
Contingent Interest Fee payable. The Agency shall have the right
to inspect the business and final records of the Developer as
related to these calculations and verification of the amount of the
Contingent Interest Fee as may be payable to the Agency, if any.
The Developer shall provide the Agency (and its auditors or
accountants) with access to such business records upon reasonable
prior notice from the Agency.
ARTICLE V
DEFAULTS, REMEDIES AND TERMINATION
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Section 5.01.
Defaults - General.
(a) Subj ect to the extensions of time set forth in
Section 6.05 hereof, failure or delay by either party to perform
any term or provision of this Agreement shall constitute a default
under this Agreement; provided, however, that if a party otherwise
in default commences to cure, correct or remedy such default within
thirty (30) calendar days after receipt of written notice
specifying such default and shall diligently and continuously
prosecute such cure, correction or remedy to completion (and where
any time limits for the completion of such cure, correction or
remedy are specifically set forth in this Agreement, then within
said time limits), such party shall not be deemed to be in default
hereunder.
(b) The injured party shall give written notice of
default to the party in default, specifying the default complained
of by the nondefaulting party. Delay in giving such notice shall
not constitute a waiver of any default nor shall it change the time
of default.
(c) Any failure 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.
Delays by either party in asserting any of its rights and remedies
shall not deprive either party of its right to institute and
maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
Section 5.02. Legal Actions.
(a) In addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy any
default, to recover damages for any default, or to obtain any other
remedy consistent with the purposes of this Agreement. Such legal
actions must be instituted in the Superior Court of the County of
San Bernardino, State of California, in any other appropriate court
in that County, or in the Federal District Court in the Central
District of California.
(b) The laws of the State of California shall govern
the interpretation and enforcement of this Agreement.
(c) In the event that any legal action is commenced by
the Developer against the Agency, service of process on the Agency
shall be made by personal service upon the Executive Director or
Chairman or the Agency, or in such other manner as may be provided
by law.
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(d) In the event that any legal action is commenced by
the Agency against the Developer, service of process on the
Developer shall be made by personal service on John Pavelak(or such
other Agent for service of process and at such address as may be
specified in written notice to the Agency), or in such other manner
as may be provided by law, and shall be valid whether made within
or without the State of California.
Section 5.03. Rights and Remedies are Cumulative.
Except with respect to any rights and remedies expressly declared
to be exclusive in this Agreement, the rights and remedies of the
parties are cumulative and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by
it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
Section 5.04. Damages. If either party defaults with
regard to any provision of this Agreement, the nondefaulting party
shall serve written notice of such default upon the defaulting
party. If the defaulting party does not diligently commence to
cure such default within thirty (30) calendar days after service of
the notice of default and promptly complete the cure of such
default within a reasonable time, not to exceed ninety (90)
calendar days (or such shorter period as may otherwise be specified
in this Agreement for any specific default), after the service of
written notice of such default, the defaulting party shall be
liable to the other party for damages caused by such default.
Section 5.05. Specific Performance. If either party
defaults under any of the provisions of this Agreement, the
nondefaulting party shall serve written notice of such default upon
such defaulting party. If the defaulting party does not commence
to cure the default and diligently and continuously proceed with
such cure within thirty (30) calendar days after service of the
notice of default, and such default is not cured within a
reasonable time thereafter (and where any time limits for the
completion of such cure, correction or remedy are specifically set
forth in this Agreement, then within said time limits), the
nondefaulting party, at its option, may institute an action for
specific performance of the terms of this Agreement, except as
otherwise provided in this Agreement.
Section 5.06. Agency Rights of Termination Following
Close of Escrow.
(a) Subject to written notice of default which shall
specify the Developer's default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency's intent to terminate this Agreement
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pursuant to this Section, the Agency at its option may terminate
this Agreement if the Developer in breach of this Agreement assigns
or attempts to assign this Agreement, or any right therein, or
attempts to make any total or partial sale, lease or leaseback,
transfer or conveyance of the whole or any part of the Sites or the
improvements to be developed thereon in violation of the terms of
this Agreement, and the Developer does not correct such violation
within thirty (30) calendar days from the date of receipt of such
notice.
(b) Subject to written notice of default, which shall
specify the Developer's default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency's intent to terminate this Agreement
pursuant to this Section, the Agency at its option may terminate
this Agreement if the Developer: (a) does not within the time
limits set forth in this Agreement or as specifically provided in
the Schedule of Performance, subject to extensions authorized by
this Agreement due to force majeure or otherwise, submit
development plans, construction drawings and related documents
acceptable to the Planning Department and Building Division of the
City for plan check purposes and in order to obtain building
permits for the Project, together with applicable fees therefor,
all prepared to the minimum acceptable standards as required by the
Planning Department and Building Division of the City for
commencement of formal review of such documents and as required by
this Agreement, or (b) does not carry out its other
responsibilities under this Agreement or in accordance with any
modification or variance, precise plan, design review and other
environmental or governmental approvals and such default is not
cured or the Developer does not commence and diligently and
continuously proceed with such cure wi thin thirty (30) calendar
days after the date of receipt of written demand therefor from the
Agency.
Section 5.07. Riaht to Reenter. Repossess and Revest.
(a) The Agency shall, upon thirty (30) calendar days
notice to the Developer which notice shall specify this Section
5.07, have the right, at its option, to re-enter and take
possession of all or any portion of the Sites, together with all
improvements thereon, and to terminate and revest in the Agency the
estate conveyed to the Developer hereunder, if after conveyance of
title, the Developer (or its successors in interest) shall:
1. Fail to commence construction of all or any
portion of the improvements as required by this
Agreement for a period of ninety (90) calendar
days after written notice to proceed from the
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Agency; provided that the Developer shall not have
obtained an extension or postponement to which the
Developer may be entitled pursuant to Section 6.05
hereof; or
2. Abandon or substantially suspend construction of
all or any portion of the improvements for a
period of ninety (90) calendar days after written
notice of such abandonment or suspension from the
Agency; provided that the Developer shall not have
obtained an extension or postponement to which the
Developer may be entitled to pursuant to Section
6.05 hereof; or
3. Assign or attempt to assign this Agreement, or any
rights herein, or transfer, or suffer any
involuntary transfer, of the Sites or any part
thereof, in violation of this Agreement, and such
violation shall not have been cured within thirty
(30) calendar days after the date of receipt of
wri tten notice thereof from the Agency to the
Developer.
(b) The thirty (30) calendar day written notice
specified in this Section shall specify that the Agency proposes to
take action pursuant to this Section and shall specify which of the
Developer's obligations set forth in Subsections (1) through (3)
herein have been breached. The Agency shall proceed with its
remedy set forth herein only in the event that the Developer
continues in default of said obligation(s) for a period of thirty
(30) calendar days following such notice or, upon commencing to
cure such default, fails to diligently and continuously prosecute
said cure to satisfactory conclusion.
(c) The right of the Agency to reenter, repossess,
terminate, and revest shall be subject and subordinate to, shall be
limited by and shall not defeat, render invalid or limit:
1.
Any mortgage, deed of trust or other
interest permitted by this Agreement;
security
2.
Any rights or interests provided in this
for the protection of the holders
mortgages, deeds of trust or other
interests;
Agreement
of such
security
3. Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other
recorded documents applicable to the Sites.
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(d) The grant deed to the Sites or to any portion
thereof conveyed by the Developer to another party shall contain
appropriate references and provisions to give effect to the
Agency's right, as set forth in this Section under specified
circumstances prior to the recordation of a Certificate of
Completion with respect to such portion, to reenter and take
possession of such portion, or any part thereof, with all
improvements thereon, and to terminate and revest in the Agency the
estate conveyed to the Developer.
(e) Upon the revesting in the Agency of title to the
Sites, or any part thereof, as provided in this Section, the Agency
shall, pursuant to its responsibilities under State law, use its
best efforts to resell the Sites, or any part thereof, at fair
market value as soon and in such manner as the Agency shall find
feasible and consistent with the objectives of such law, to a
qualified and responsible party or parties (as determined by the
Agency) who will assume the obligations of making or completing the
improvements, or such other improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses
specified for the Property, or any part thereof. Upon such resale
of the Sites, or any part thereof, the proceeds thereof shall be
applied:
1. First, to make any payment made or necessary to be
made to discharge or prevent from attaching or
being made any subsequent encumbrances or liens
due to obligations incurred with respect to the
making or completion of the agreed improvements or
any part thereof on the Sites or any portion
thereof; next to reimburse the Agency on its own
behalf or on behalf of the City for all actual
costs and expenses incurred by the Agency and the
City, including but not limited to customary and
reasonable fees or salaries to third party
personnel engaged in such action (but excluding
the Agency's or the City's general overhead
expense) , in connection with the recapture,
management and resale of the Sites or any portion
thereof; all taxes, assessments and water and
sewer charges paid by the City and/or the Agency
with respect to the Sites or any portion thereof;
any amounts otherwise owing to the Agency by the
Developer and its successor transferee; and
2. Second, to the extent that any and all funds which
are proceeds from such resale are thereafter
available, to reimburse the Developer, or its
successor transferee, up to the amount equal to
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the sum of: (1) the Purchase Price paid by the
Developer for the Sites (or allocable to the
applicable part thereof); and (2) the costs
incurred for the development of the Sites, or
applicable part thereof, or for the construction
of the improvements thereon including, but not
limi ted to, costs of carry, taxes and items set
forth in the Developer I s cost statement which
shall be submitted to and approved by the Agency.
3.
Any balance
application of
Agency.
remaining after the foregoing
proceeds shall be retained by the
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices.
Between the Parties.
Demands
and
Communications
(a) Any and all notices, demands or communications
submitted by any party to another party pursuant to or as required
by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal deli very, or by registered or
certified United States mail, postage prepaid, return receipt
requested, to the principal office of the Agency and the Developer,
as applicable, as designated in Section 1.04(a) and Section 1.04(b)
hereof. Such written notices, demands and communications may be
sent in the same manner to such other addresses as either party may
from time to time designate as provided in this Section. Any such
notice, demand or communication shall be deemed to be received by
the addressee, regardless of whether or when any return receipt is
recei ved by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for
immediate personal delivery, or two (2) calendar days after it is
placed in the United States mail as heretofore provided.
(b) In addition to the submission of notices, demands
or communications to the parties as set forth above, copies of all
notices shall also be delivered by facsimile as follows:
to the Developer:
Century Crowell Communities, L.P.
1535 South "On Street, Suite 200
San Bernardino, California 92408
Attn: John Pave1ak
FAX: (909) 381-0041
with copy to:
Best, Best & Krieger, LLP
3750 University Ave.
Attn: Kevin K. Randolph, Esq.
Riverside, CA 92501
FAX: (909) 686-3083
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to the Agency:
Redevelopment Agency of the City
of San Bernardino
201 North "En Street
Suite 301
San Bernardino, California 92401
FAX: (909) 384-5135
with copy to:
Sabo & Green
A Professional Corporation
201 No. "En St.,
Suite 300
San Bernardino, CA 92401
FAX: (909) 383-9378
Section 6.02. Conflict of Interest. No member, official
or employee of the Agency having any conflict of interest, direct
or indirect, related to this Agreement and the development of the
Property shall participate in any decision relating to the
Agreement. The parties represent and warrant that they do not have
knowledge of any such conflict of interest.
Section 6.03. Warranty Against Pavment of Consideration
for Agreement. The Developer warrants that it has not paid or
given, and will not payor give, any third party any money or other
consideration for obtaining this Agreement. Third parties, for the
purposes of this Section, shall not include persons to whom fees
are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Developer.
Section 6.04. Nonliability of Agency Officials and
Employees. No member, official or employee of the Agency shall be
personally liable to the Developer, or any successor in interest,
in the event of any default or breach by the Agency or for any
amount which may become due to the Developer or to its successor,
or on any obligations under the terms of this Agreement, except for
gross negligence or willful acts of such member, officer or
employee.
Section 6.05. Enforced Delav: Extension of Time of
Performance. In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, or considered to be a default, where delays or defaults
are due to the force majeure events of war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of
God, acts of the public enemy, epidemics, quarantine restrictions,
freight embargoes or lack of transportation, weather-caused delays,
inability to secure necessary labor, materials or tools, delays of
any contractors, subcontractor or supplier, which are not
attributable to the fault of the party claiming an extension of
time to prepare or acts or failure to act of any public or
governmental agency or entity (provided that acts or failure to act
of the City or Agency shall not extend the time for the Agency to
act hereunder except for delays associated with lawsuit or
injunction including but without limitation to lawsuits pertaining
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to the approval of the Agreement, and the like) An extension of
time for any such force majeure cause shall be for the period of
the enforced delay and shall commence to run from the date of
occurrence of the delay; provided however, that the party which
claims the existence of the delay has first provided the other
party with written notice of the occurrence of the delay within ten
(10) days of the commencement of such occurrence of delay.
The inability of the Developer to obtain a satisfactory
commitment from a construction lender for the improvement of the
Sites or to satisfy any other condition of this Agreement relating
to the redevelopment of the Sites shall not be deemed to be a force
majeure event or otherwise provide grounds for the assertion of the
existence of a delay under this Section 6.05. The parties hereto
expressly acknowledge and agree that changes in either general
economic conditions or changes in the economic assumptions of any
of them which may have provided a basis for entering into this
Agreement and which occur at any time after the execution of this
Agreement, are not force majeure events and do not provide any
party with grounds for asserting the existence of a delay in the
performance of any covenant or undertaking which may arise under
this Agreement. Each party expressly assumes the risk that changes
in general economic conditions or changes in such economic
assumptions relating to the terms and covenants of this Agreement
could impose an inconvenience or hardship on the continued
performance of such party under this Agreement, but that such
inconvenience or hardship is not a force majeure event and does not
excuse the performance by such party of its obligations under this
Agreement.
Section 6.06. Inspection of Books and Records. The
Agency shall have the right at all reasonable times at the Agency's
cost and expense to inspect the books and records of the Developer
pertaining to the Sites and/or the development thereof as necessary
for the Agency, in its reasonable discretion, to enforce its rights
under this Agreement. Matters discovered by the Agency shall not
be disclosed to third parties unless required by law or unless
otherwise resulting from or related to the pursuit of any remedies
or the assertion of any rights of the Agency hereunder. The
Developer shall also have the right at all reasonable times to
inspect the books and records of the Agency pertaining to the Sites
and/or the development thereof as pertinent to the purposes of this
Agreement.
Section 6.07. Approvals.
(a) Except as otherwise provided in this Agreement,
approvals required of the Agency or the Developer, or any officers,
agents or employees of either the Agency or the Developer, shall
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not be unreasonably withheld and approval or disapproval shall be
given within the time set forth in the Schedule of Performance or,
if no time is given, within a reasonable time.
(b)
to sign on his
which are of
adjustments to
The Executive Director of the Agency is authorized
or her own authority amendments to this Agreement
routine or technical nature, including minor
the Schedule of Performance.
Section 6.08. Real Estate Commissions. The Agency shall
not be liable for any real estate commissions, brokerage fees or
finder fees which may arise from or related to this Agreement.
Section 6.09. Indemnification. The Developer agrees to
indemnify and hold the City and the Agency, and their officers,
employees and agents, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to any
act or omission of the Developer in performing its obligations
hereunder. The Agency agrees to indemnify and hold the Developer
and its officers, employees and agents, harmless from and against
all damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Agency in performing its
obligations hereunder.
Section 6.10. Release of Developer from Liability.
Notwithstanding any provision herein to the contrary, the Developer
shall be relieved of any and all liability for the obligations of
the Developer hereunder with regard to any Phase I Lot or any Phase
II Lot when a Certificate of Completion has been issued by the
Agency hereunder with respect thereto, other than any covenants and
obligations provided by the grant deed by which the Sites are
conveyed to the Developer hereunder.
Section 6.11. Attornevs' Fees. If either party hereto
files any action or brings any action or proceeding against the
other arising out of this Agreement, seeks the resolution of
disputes pursuant to Section 6.12 hereof, or is made a party to any
action or proceeding brought by the Escrow Agent, then as between
the Developer and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit or
resolution of disputes pursuant to Section 6.12 hereof, and not as
damages, its reasonable attorneys' fees as fixed by the Court or
other forum for resolution of disputes as set forth in Section 6.12
hereof, in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees.
Section 6.12. Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
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respective heirs, executors, administrators, legal representatives,
successors and assigns.
ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Section 7.01. Entire Agreement.
(a) This Agreement shall be executed in four (4)
duplicate originals each of which is deemed to be an original.
This Agreement includes 60 pages and 7 attachments, which
constitute the entire understanding and Agreement of the parties.
(b) This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and supersedes
all negotiations or previous agreements between the parties with
respect to all or any portion of the Sites and the development
thereof.
(c) None of the terms, covenants, agreements or
conditions set forth in this Agreement shall be deemed to be merged
with the grant deed conveying title to the Sites, and this
Agreement shall continue in full force and effect before and after
such conveyance until issuance of the final Certificate of
Completion.
(d) All waivers of the provisions
all amendments hereto must be in writing
appropriate authorities of the Agency and the
of this Agreement
and signed by
Developer.
and
the
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01. Execution and Recordation.
(a) Following its execution by the Developer and prompt
delivery thereafter to the Agency, this Agreement shall be subject
to the review and approval by the governing board of the Agency in
its sole and absolute discretion within forty-five (45) calendar
days after the date of signature by the Developer. In the event
that the Agency has not approved, executed and delivered the
Agreement to the Developer within the foregoing period, then the
rights and duties of the parties shall be as set forth in the
Exclusive Right to Negotiate dated February 15, 1999 as referenced
in Section 2.02. The date of this Agreement shall be the date when
the Agreement shall have been approved by the Agency.
(b) The Developer and the Agency agree to permit
recordation of this Agreement or any portion thereof against the
Sites in the Office of the County Recorder for the County where the
Property is located.
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CDC 1999-25
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
Date:
the
APPROVED AS TO FORM:
J.juJ,
Agency Special
~- l e. - <=t"l
Counsel
DEVELOPER
Century Crowell Communities,
L.P., a California limited
partnership
By Century Homes Communities,
a California corporation
Date, (J (8, (71'1
r I
By'
IN. 07~~~{
John W. Pavelak
President
(All Signatures Must Be Notarized)
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CDC 1999-25
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
On Auaust 18. 1999 before me, Lisa A. Gomez. Notary
Public, personally appeared Gary Van Osdel . personally known to me ~
",roves to FRe on the l::la6i6 of 6ati6faotory e'/idenoe) to be the personW whose nameW
islaFe subscribed to the within instrument and acknowledged to me that he/6ho/tt.1ey
executed the same in his/hOFltheir authorized capacity~, and that by his/her/their
signatureW on the instrument the personW, or the entity upon behalf of which the
personW acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
r;------
~ lJSAA-G~::Z - 1
j. Commission # II 98927
! Notary Publ"lC - CalifornIa f
San Bemaarno Counly -
- - - -My-~~~J~~l
CDC 1999-25
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
On Auaust 18. 1999 before me, Lisa A. Gomez. Notary
Public, personally appeared John W. Pavelak , personally known to me ~
pro':oEl to FRe on the I::la€i€ of €ati€motory OViElOFlOO) to be the personW whose nameW
islaFe subscribed to the within instrument and acknowledged to me that he/st.1e.'tt.1ey
executed the same in his/her.l.their authorized capacity~, and that by his.'her.'their
signatureW on the instrument the personW, or the entity upon behalf of which the
personW acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
r u' "':1
. !) "~'\ A. GO,va:
. NComm/SSion # J 1989"'"
. , cta <<I
. \:<-';.. . / ry Public - CalifornIa ;r;
. ~ San Bemac1no Cou !
. MyComm.Ellp/resoct)a~
CDC 1999-25
EXHIBIT "A"
LEGAL DESCRIPTION
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Exh. "A" - 1
CDC 1999-25
3. The land referred to in this report is situated in the State of California, County of SAN BERNARD INO
and is described as follows:
LOTS 1 THROUGH 38, INCLUSIVE, OF TRACT NO. 13822, IN THE CITY OF SAN
BERNARDINO, AS PER MAP RECORDED IN BOOK 240, PAGES 49 AND 50 OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PREA .10/31/B7bk
3. The land referred to in this report is situated in the State of California, County of SAN BERNARD INO
and is described as follows:
LOTS 6 THROUGH 13, INCLUSIVE AND 27 THROUGH 42, INCLUSIVE OF TRACT NO. 11261,
IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
AS PER MAP FILED IN BOOK 156 OF HAPS, PAGES 57 THROUGH 59, INCLUSIVE, RECORDS
OF SAID COUNTY.
CDC 1999-25
EXHIBIT "B"
(A) FORM OF $266,000.00
PROMISSORY NOTE SECURED
BY A DEED OF TRUST
(B) FORM OF DEED OF TRUST AND
ASSIGNMENT OF RENTS
(C) FORM OF PAYMENT GUARANTY OF GENERAL PARTNER OF
DEVELOPER - - TO BE SUBMITTED IN A FORM MUTUALLY
ACCEPTABLE TO THE PARTIES BY A DATE NO LATER
THAN THE END OF THE DEVELOPER'S DUE DILIGENCE
INVESTIGATIONS
SBEO/0001/DOC/3477-5
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CDC 1999-25
PROMISSORY NOTE
PAYABLE TO A PUBLIC AGENCY
(Disposition of Lots Nos. 1-38, Inclusive of Tract No. 13822)
MAKER:
HOLDER:
Century Crowell Communities,L.P.,
a California limited
partnership
Redevelopment Agency of the
City of San Bernardino
201 North "EU Street
Suite 301
San Bernardino, California
92401
Principal Amount:
$266,000.00
Date of Promissory Note:
1999
[TO BE INSERTED BY ESCROW HOLDER
ON DATE OF CLOSE OF ESCROW]
Interest Rate: 8%
PROMISE TO PAY. Century Crowell Communities, LP, a California
limited partnership, (the "MAKERU) promises to pay to the
Redevelopment Agency of the City of San Bernardino (the "AgencyU),
or order, in lawful money of the United States of America, the
principal amount of Two Hundred Sixty-Six Thousand Dollars
($266,000.00), together with interest on the unpaid outstanding
principal balance hereof. Interest shall commence to accrue and
shall be calculated from the date of this Promissory Note Payable
to A Public Agency (the "Promissory NoteU) until the outstanding
principal balance and all accrued and unpaid interest hereunder has
been paid.
INDEBTEDNESS AND MATURITY DATE. This Promissory Note evidences
the indebtedness of the MAKER to the Agency in the original
principal amount of $266,000.00, under the terms and conditions of
the 1999 Purchase and Sale Agreement, dated as of
1999, by and between the MAKER and the Agency. The Promissory Note
shall mature and the outstanding principal balance, together with
all accrued and unpaid interest shall be payable on the fifth (5th)
anniversary following its date (i.e.: , 2004). A copy of
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CDC 1999-25
the 1999 Purchase and Sale Agreement and Escrow Instructions is on
file with the Agency Secretary as a public record of the Agency.
INTEREST RATE: Interest shall accrue on the outstanding principal
balance of this Promissory Note from its date until maturity at the
rate of eight percent (8%) per annum. Accrued and unpaid amounts
of interest shall compound annually prior to maturity.
INTEREST PAYMENTS PRIOR TO MATURITY. MAKER shall make monthly
payments of interest or the outstanding principal balance of this
Promissory Note commencing with the first such payment on the first
day of the calendar month immediately following the second (2d)
anniversary date and thereafter on the first day of each succeeding
calendar month until paid in full.
Provided that the MAKER is current in payments of accrued
interest, the MAKER may prepay any portion or all of outstanding
principal balance of this Promissory Note at any time prior to
maturity without penalty.
Interest on this Promissory Note is computed on a 365/360
compounded interest basis; that is, by applying the ratio of the
annual interest rate over a year of 360 days, multiplied by the
outstanding principal balance, multiplied by the actual number of
days the principal balance is outstanding. MAKER will make all
payments of interest and principal to the Agency at: 201 North "EN
Street, Suite 301, San Bernardino, California 92401 or at such
other place as the Agency may designate in writing. Unless
otherwise agreed to by the Agency in writing or required by
applicable law, all payments will be applied first to any unpaid
collection costs and any late charges, then to any unpaid interest,
and any remaining amount to principal.
LATE CHARGE: If a payment is ten (10) days or more late, MAKER will
also be charged a payment of One Hundred Dollars ($100.00) as a
late charge.
DEFAULT. MAKER will be in default if any of the following happen:
(a) MAKER fails to make any payment within ten (10)
days of the date due; or
(b)
MAKER fails to comply with or to perform when due
any other term, obligation, covenant, or condition
contained in this Promissory Note or the Deed of
Trust securing this Promissory Note and any
applicable cure period has expired.
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CDC 1999-25
If any default (other than a default in payment on this Promissory
Note) is curable, the default may be cured (and in such event no
default will be deemed to have occurred) if MAKER, after receiving
written notice from the Agency demanding cure of such default:
(i) cures the default within thirty (30) days; or
(ii) if the cure requires more than thirty (30) days,
ini tiates steps to cure the default wi thin said
thirty (30) days, and thereafter MAKER continues
and completes all reasonable and necessary steps
sufficient to produce compliance as soon as
reasonably practical.
RIGHTS OF THE AGENCY. Upon default, the Agency may exercise any
of its rights provided in this Promissory Note or in the Deed of
Trust and Assignment of Rents of even date hereunder, including
without limitation, the declaration by the Agency that the entire
unpaid principal balance on this Promissory Note and all accrued
unpaid interest is immediately due, without further notice, and
then MAKER will pay that amount. The Agency may hire or pay a
third party to help collect this Promissory Note if MAKER does not
pay. MAKER also will pay the Agency that amount. This includes,
subject to any limits under applicable law, the Agency's attorneys'
fees and the Agency's legal expenses whether or not there is a
lawsui t, including attorneys' fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-
judgment collection service costs. MAKER also will pay any court
costs, in addition to all other sums provided by law. This
Promissory Note has been delivered to the Agency and accepted by
the Agency in the State of California. If there is a lawsuit
arising under this Promissory Note, the Superior Court of San
Bernardino County, the State of California, shall have jurisdiction
of such lawsuit. This Promissory Note shall be governed by and
construed in accordance with the laws of the State of California.
COLLATERAL. MAKER acknowledges that this Promissory Note is
secured by a Deed of Trust and Assignment of Rents of even date
herewi th. The Deed of Trust and Assignment of Rents affects
certain real property commonly known as Lot Nos. 1-38, inclusive of
Tract No. 13822, in the City of San Bernardino, California. The
Deed of Trust and Assignment of Rents contains the following due on
sale provision:
"THE AGENCY MAY, AT IS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE SALE
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CDC 1999-25
OR TRANSFER OF ALL OR ANY PART OF THE PROPERTY, OR ANY
INTEREST THEREIN, UNLESS PRIOR TO SUCH SALE OR TRANSFER THE
TRUSTOR HAS REQUESTED THE AGENCY TO ACCEPT A PAYMENT IN CASH
FOR THE PARTIAL RELEASE OF THE DEED OF TRUST FROM ONE OR MORE
OF THE LOTS ON THE PROPERTY IN ACCORDANCE WITH THE FOLLOWING
FORMULA:
PARTIAL RELEASE
PRICE
($7,000.00) +
(the number
of Lots of
Tract No. 13822
requested for
partial lease)
$50.00 per
request of
the Trustor
for a partial
release
The Agency Beneficiary shall promptly execute an appropriate
form of the release and reconveyance for one or more Lots on
the Property held as security for the payment of the
obligation secured by this Deed of Trust for which the Agency
has received payment in cash or available funds of the PARTIAL
RELEASE PRICE as determined in accordance with the above-
described "RELEASE PRICE," plus any accrued and unpaid
interest as may then be due from Trustor.
The words "sale or transfer" as used herein mean the
conveyance by Trustor of the Property or any right, title or
interest therein, whether legal, beneficial, or equitable;
whether voluntary or involuntary, whether by sale, deed,
installment sale contract, land contract, lease option
contract, or by sale assignment, or transfer of any beneficial
interest in the Property to any land trust. Notwithstanding
the foregoing, trustor may transfer the Property an affiliate
of Trustor without the consent of the Agency.
Initials of Trustor"
GENERAL PROVISIONS. The Agency may delay or forego enforcing any of
its rights or remedies under this Promissory Note without losing
them. To the extent allowed by law, the MAKER waives any
applicable statute of limitations, presentment, demand for payment,
protest and notice of dishonor. Upon any change in the terms of
this Promissory Note, and unless otherwise expressly stated in
writing, no party who signs this Promissory Note, whether as maker,
guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that the Agency may renew or
extend (repeatedly and for any length of time) this Promissory
Note, or release any party, or guarantor or collateral; or impair,
SBEO/0001/DOC/3467
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CDC 1999-25
fail to realize upon or perfect the security interest of the Agency
in the collateral; and take any other action deemed necessary by
the Agency in its sole discretion without the consent of or notice
to anyone. All such parties also agree that the Agency may modify
this Promissory Note without the consent of or notice to anyone
other than the MAKER.
ASSIGNMENT OF PROMISSORY NOTE BY AGENCY. The Agency may assign
its interest in this Promissory Note (and the Deed of Trust and
Assignment of Rents of even date herewith) to a third party at any
time prior to the maturity of this Promissory Note.
PRIOR TO SIGNING THIS PROMISSORY NOTE, MAKER HAS READ AND
UNDERSTANDS ALL OF ITS PROVISIONS. MAKER AGREES TO THE TERMS OF
THIS PROMISSORY NOTE AND ACKNOWLEDGES RECEIPT OF A COpy HEREOF.
MAKER:
Century Crowell Communities, LP,
a California limited partnership,
By:
By:
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CDC 1999-25
RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street
Suite 301
San Bernardino, California 92401
Attention: Executive Director
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST
AND ASSIGNMENT OF RENTS
(CENTURY CROWELL COMMUNITIES)
THIS DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of
Trust") is dated, 1999, among Century Crowell
Communities, L.P., a California limited partnership (the "Trustor"),
whose address is , California and the
Redevelopment Agency of the City of San Bernardino (referred to
herein as the "Lender" or "Beneficiary"), whose address is 201 North
"E" Street, Suite 301, San Bernardino, California 92401; and First
American Title Insurance Company, a California corporation (the
"Trustee"), whose address is San
Bernardino, California
1.0 CONVEYANCE AND GRANT. For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in trust,
with power of sale, for the benefit of Lender as Beneficiary,
all of Trustor's right, title, and interest in and to the
following described real property, together with all existing
or subsequently erected or affixed buildings, improvements and
fixtures; all easements, rights of way, and appurtenances and
all other rights, royalties, and profits relating to the real
property, including and without limitation all minerals, oil,
gas, geothermal and similar matters located in the City of San
Bernardino, San Bernardino County, State of California (the
"Property") :
SEE EXHIBIT "A" LEGAL DESCRIPTION ATTACHED HERETO
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Trustor presently assigns to the Lender all of Trustor's right,
title and interest in and to all present and future leases of
the Property and all Rents from the Property. In addition,
Trustor grants Lender a Uniform Commercial Code security
interest in the Rents and the Personal Property defined below.
2.0 DEFINITIONS. The following words shall have the following
meanings when used in this Deed of Trust. Terms not otherwise
defined in this Deed of Trust shall have the meanings
attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money
of the United States of America:
Beneficiary. The word "Beneficiary" means the Redevelopment
Agency of the City of San Bernardino.
Deed of Trust. The words "Deed of Trust" mean this Deed of
Trust and Assignment of Rents among Trustor, Lender, and
Trustee, and includes without limitation all assignment and
security interest provisions relating to the Personal Property
and Rents.
Disposition and Deve10pment Agreement. The words Disposition
and Development Agreement" refer to that certain Purchase and
Sale Agreement and Escrow Instructions, dated as of July 1,
1999, by and between the Trustor and the Beneficiary.
Improvements. The word "Improvements" means and includes
without limitation all existing improvements on the Property.
Indebtedness. The word "Indebtedness" means all principal and,
if applicable, interest payable under the Promissory Note and
any amounts expended or advanced by Lender to discharge
obligations of Trustor or expenses incurred by Trustee or
Lender to enforce obligations of Trustor under the Promissory
Note and this Deed of Trust, together with interest on such
amounts. This Deed of Trust secures, in addition to the
amounts specified in the Promissory Note any future advances,
together with all interest thereon, which future advances the
Lender may in its sole and absolute discretion make so long as
Trustor complies with all the terms and conditions of the
Promissory Note or other loan agreement.
Lender. The word "Lender" means Redevelopment Agency of the
City of San Bernardino.
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CDC 1999-25
Lot. The word "Lot" means anyone of the subdivided lots of
Tract Map No. 13822 (e.g. Lot Nos 1-38, inclusive of Tract Map
No. 13822).
Personal Property. The words "Personal Property" means all
equipment, fixtures, and other articles of personal property
now or hereafter owned by Trustor, and now or hereafter
attached or affixed to the Property together with all
accessions, parts, and additions to, all replacements of, and
all substitutions for, any of such property, and together with
all proceeds (including without limitation all insurance
proceeds and refunds of premiums) from any sale or other
disposition of the Property.
Promissory Note. The words "Promissory Note" mean the
Promissory Note of even date herewith, in the principal amount
of TWO HUNDRED SIXTY-SIX THOUSAND DOLLARS ($266,000.00) from
Trustor to the Lender, together with all renewals, extensions,
modifications, refinancing, and substitutions for the
Promissory Note.
Property. The word "Property" means collectively the Property
and the Personal Property, and the rights described above in
the "Conveyance and Grant" section of the Deed of Trust.
Rents. The word "Rents" means all present and future
revenues, income, issues, royalties, profits, and
benefits derived from the Property.
rents,
other
Trustee. The word "Trustee" means First American Title
Insurance Company, and any substitute or successor trustees.
Trustor. The word "Trustor" means Century Crowell Communities,
L.P., a California limited partnership.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE
SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN
TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE
OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER THE PROMISSORY NOTE
AND THIS DEED OF TRUST. THE PROMISSORY NOTE AND THIS DEED OF
TRUST ARE GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
3.1 PAYMENT AND PERFORMANCE. Except as otherwise provided in this
Deed of Trust, Trustor shall pay to Lender all amounts secured
by this Deed of Trust as they become due, and shall strictly
and in a timely manner perform all of Trustor's obligations
under the Promissory Note, this Deed of Trust, and the
Disposition and Development Agreement.
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3.2 POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees
that Trustor's possession and use of the Property shall be
governed by the following provisions:
Possession and Use. Until the occurrence of an Event of
Default, Trustor may (a) remain in possession and control of
the Property, (b) use, operate or manage the Property for any
purpose authorized by the Disposition and Development
Agreement.
Duty to Maintain. Trustor shall maintain the Property;
provided however, that the Trustor may construct any
improvement or structure thereon at any time, without further
notice to the Lender.
Hazardous Substances. The terms "hazardous wastes," "hazardous
substance," "disposal," "release," and "threatened release," as
used in this Deed of Trust, shall have the same meanings as set
forth in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et~. ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the
Hazardous Materials Transportation Act. 49 U.S.C. Section 1801,
et ~., the Resource Conservation and Recovery Act, 49 U.S.C.
Section 6901, et ~., Chapters 6.5 through 7.7 of Division 20
of the California Health and Safety Code, Section 25100, et
~., or other applicable state or Federal laws, rules, or
regulations adopted pursuant to any of the foregoing. Trustor
represents and warrants to Lender that neither Trustor nor any
tenant, contractor, agent or other authorized user of the
Property shall use, generate, manufacture, store, treat,
dispose of, or release any hazardous waste or substance on,
under, or about the Property. Trustor authorizes Lender and
its agents to enter upon the Property to make such inspections
and tests and Lender may deed appropriate to determine
compliance with this section of the Deed of Trust. Any
inspections or tests made by Lender shall be for Lender I s
purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Trustor or
to any other person.
Lender's Right to Enter. Lender and its agents and
representatives may enter upon the Property at all reasonable
times to attend to Lender's interests and to inspect the
Property for purposes of Trustor's compliance with the terms
and conditions of this Deed of Trust.
Compliance with Governmental Requirements. Trustor shall
promptly comply with all laws, ordinances, and regulations, now
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CDC 1999-25
or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Property. Trustor
may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has notified
Lender in writing prior to doing so and so long as, in Lender's
sole opinion, Lender's interests in the Property are not
jeopardized. Lender may require Trustor to post adequate
security or a surety bond, reasonably satisfactory to Lender,
to protect Lender's interest.
Duty to Protect. Trustor agrees neither to abandon nor leave
unattended the Property. Trustor shall do all other acts, in
addition to those acts set forth above in this section, which
from the character and use of the Property are reasonably
necessary to protect and preserve the Property.
3 . 3 DUE ON SALE AND PARTIAL RELEASE AND RECONVEYANCE. THE
BENEFICIARY MAY, AT IS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE SALE OR
TRANSFER OF ALL OR ANY PART OF THE PROPERTY, OR ANY INTEREST
THEREIN, UNLESS PRIOR TO SUCH SALE OR TRANSFER THE TRUSTOR HAS
REQUESTED THE AGENCY TO ACCEPT A PAYMENT IN CASH FOR THE
PARTIAL RELEASE OF THE DEED OF TRUST FROM ONE OR MORE OF THE
LOTS ON THE PROPERTY IN ACCORDANCE WITH THE FOLLOWING FORMULA:
PARTIAL
RELEASE
PRICE
($7,000.00) X +
(the number of Lots
of Tract No. 13822
requested for partial
release)
$50.00 per lot
per request of
the Trustor
for a partial
release
The Beneficiary shall promptly execute an appropriate form of
the release and reconveyance for one or more Lots on the
Property held as security for the payment of the obligation
secured by this Deed of Trust for which the Agency has received
payment in cash or available funds of the PARTIAL RELEASE PRICE
as determined in accordance with the above-described "RELEASE
PRICE," plus any amount as may then be due from Trustor as
provided in Paragraph 3.6 of this Deed of Trust.
The words "sale or transfer" as used herein mean the conveyance
by Trustor of the Property or any right, title or interest
therein, whether legal, beneficial, or equitable; whether
voluntary or involuntary, whether by sale, deed, installment
sale contract, land contract, lease option contract, or by sale
assignment, or transfer of any beneficial interest in the
Property to any land trust. Notwithstanding the foregoing,
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CDC 1999-25
trustor may transfer the Property to an affiliate of Trustor
without the consent of the Beneficiary.
Initials of Trustor"
3.4 TAXES AND LIENS. The following provisions relating to the
taxes and liens on the Property are part of this Deed of Trust:
Payment. To the extent that the Trustor may not be exempt from
the payment of taxes or liens as a local public agency, Trustor
shall pay when due (and in all events at least ten (10) days
prior to delinquency) all taxes, special taxes, assessments,
charges (including water and sewer), fines and impositions
levied against or on account of the Property, and shall pay
when due all claims for work done on or for services rendered
or material furnished to the Property. Trustor shall maintain
the Property free of all liens having priority over or equal to
the interest of Lender under this Deed of Trust, except for the
lien of property taxes and assessments not due.
Right to Contest. Trustor may withhold payment of any tax,
assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender's interest in the
Property is not jeopardized. If a lien arises or is filed as
a result of nonpayment, Trustor shall within fifteen (15) days
after the lien arises or, if a lien is filed, within fifteen
(15) days after Trustor has notices of the filing, secure the
discharge of the lien, or if requested by Lender, deposit with
Lender cash or a sufficient corporate surety bond or other
securi ty satisfactory to Lender in an mount sufficient to
discharge the lien plus any costs and attorneys' fees or other
charges that could accrue as a result of a foreclosure or sale
under the lien. In any contest, Trustor shall defend itself
and Lender and shall satisfy any adverse judgment before
enforcement against the Property. Trustor shall name Lender as
an additional obligee under any surety bond furnished in the
contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or
assessments and shall authorize the appropriate governmental
official to deliver to Lender at any time a written statement
of the taxes and assessments against the Property.
3.5 [Reserved -- No Text]
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3.6 EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or proceeding
is commenced that would materially affect Lender's interests in
the Property, Lender on Trustor's behalf may, but shall not be
required to, take any action that Lender deems appropriate.
Any amount that Lender expends in so doing will bear interest
at a rate of interest per annum of eight percent (8%) from the
date incurred or paid by Lender to the date of repayment by
Trustor. All such expenses, with interest thereon will, at
Lender's option: (a) be payable on demand; or (b) be added to
the balance of the Promissory Note and be payable with any
partial release installment payments to become due during the
remaining term of the Promissory Note; or (c) be treated as a
balloon payment which will be due and payable at the Promissory
Note's maturity. This Deed of Trust also will secure payment
of these amounts. The rights provided for in this paragraph
shall be in addition to any other rights or any remedies to
which Lender may be entitled on account of the default. Any
such action by Lender shall not be construed as curing the
default so as to bar Lender from any remedy that it otherwise
would have had.
3.7 WARRANTY; DEFENSE OF TITLE. The following provisions relating
to ownership of the Property are a part of this Deed of Trust:
Title. Trustor warrants that Trustor has the full right
power, and authority to execute and deliver this Deed of Trust
to Lender.
Defense of Title. Trustor warrants and will forever defend its
title to the Property against the claims of all persons subject
to the matters disclosed in the policy of title insurance of
even date herewith, issued in favor of the Trustor pursuant to
the Disposition and Development Agreement. In the event any
action or proceeding is commenced that questions Trustor's
title or the interest of Trustee or Lender under this Deed of
Trust, Trustor shall defend the action at Trustor's expense.
Trustor may be the nominal party in such proceeding, but Lender
shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of Lender's own
choice, and Trustor will deliver, or cause to be delivered, to
Lender such instruments as Lender may request from time to time
to permit such participation.
Compliance with Laws. Trustor warrants that the Property and
Trustor's use of the Property complies with all existing
applicable laws, ordinances, and regulations of governmental
authorities.
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3.8 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
App1ication of Net Proceeds. If all or any part of the
Property is condemned by eminent domain proceedings or by an
proceeding or purchase in lieu of condemnation, Lender may at
its election require that all or any portion of the net
proceeds of the award be applied to the Indebtedness or the
repair or restoration of the Property. The net proceeds of the
award shall mean the award after payment of all reasonable
costs, expenses, and attorneys' fees, Trustee or Lender in
connection with the condemnation.
Proceedings. If any proceeding in condemnation is filed,
Trustor shall promptly notify Lender in writing, and Trustor
shall promptly take such steps as may be necessary to defend
the action and obtain the award. Trustor may be the nominal
party in such proceeding, but Lender shall be entitled to
participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to Lender such instruments as
may be requested by it from time to time to permit such
participation.
3.9 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITIES. The following provisions relating to governmental
taxes, fees and charges are a part of this Deed of Trust:
Current Taxes, Fees and Charges. Upon request by Lender,
Trustor shall execute such documents in addition to this Deed
of Trust and take whatever other action is requested by Lender
to perfect and continue Lender's lien and security interest on
the Property. Trustor shall reimburse Lender for all taxes, as
described below, together with all expenses incurred in
recording, perfecting or continuing this Deed of Trust,
including without limitation all taxes, fees, documentary
stamps, and other charges for recording or registering this
Deed of Trust.
Taxes. The following shall constitute taxes to which this
section applies: (a) a specific tax upon this type of Deed of
Trust or upon all or any part of the Indebtedness secured by
this Deed of Trust; (b) a specific tax on Trustor which Trustor
is authorized or required to deduct from payments on the
Indebtedness secured by this type of Deed of Trust; (c) a tax
on this type of Deed of Trust chargeable against the Lender or
the holder of the Promissory Note; and (d) a specific tax on
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all or any portion of the Indebtedness or on payments of
principal and interest made by Trustor.
Subsequent Taxes. If any tax to which this section applies is
enacted subsequent to the date of this Deed of Trust, this
event shall have the same effect as an Event of Default (as
defined below), and Lender may exercise any or all of its
available remedies for an Event of Default as provided below
unless Trustor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax as provided above in the
Taxes and Liens section and deposits with Lender cash or a
sufficient corporate surety bond or other security satisfactory
to Lender.
3.10 [Reserved -- No Text]
3.11 FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions
relating to further assurances and attorney-in-fact are a part
of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon
request of Lender, Trustor will make, execute and deliver, or
will cause to be made, executed or delivered, to Lender or to
Lender's designee, and when requested by Lender, cause to be
filed, recorded, refiled, or rerecorded, as the case may be, at
such times and in such offices and places as Lender may deem
appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion
of Lender, be necessary or desirable in order to effectuate,
complete, perfect, continue, or preserve (a) the obligations of
Trustor under the Promissory Note, this Deed of Trust, and (b)
the liens and security interests created by this Deed of Trust
as first and prior liens on the Property, whether now owned or
hereafter acquired by Trustor. Unless prohibited by law or
agreed to the contrary by Lender in writing, Trustor shall
reimburse Lender for all costs and expenses incurred in
connection with the matters referred to in this paragraph.
Attorney-In-Fact. If Trustor fails to do any of the things
referred to in the preceding paragraph, Lender may do so for
and in the name of Trustor and at Trustor's expense. For such
purposes, Trustor hereby irrevocably appoints Lender as
Trustor's attorney-in-fact for the purpose of making,
executing, delivering, filing, recording, and doing all other
things as may be necessary or desirable, in Lender's sole
opinion, to accomplish the matters referred to in the preceding
paragraph.
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4.0 FULL PERFORMANCE AND RECONVEYANCE. If Trustor pays the
Promissory Note and all amounts as may become due under this
Deed of Trust, Lender shall execute and deliver to Trustee a
request for full reconveyance of this Deed of Trust and shall
execute and deliver to Trustor suitable statements of
termination of any financing statement on file evidencing
Lender's security interest in the Rents and Personal Property.
Lender may charge Trustor a reasonable reconveyance fee at the
time of reconveyance.
5.0 DEFAULT. Each of the following, at the option of Lender, shall
constitute an event of default ("Event of Default") under this
Deed of Trust:
Default on Payments Due Under the Promissory Note. Failure of
Trustor to make any payment when due under the Promissory Note.
Compliance Default. Failure to comply with any other term,
obligation, covenant or condition contained in this Deed of
Trust or the Promissory Note.
Breaches. ny warranty, representation or statement made or
furnished to Lender by or on behalf of Trustor under this Deed
of Trust, the Promissory Note or the Disposition and
Development Agreement is, or at the time made or furnished was,
false in any material respect.
Insolvency. The insolvency of Trustor, appointment of a
receiver for any part of Trustor's property, any assignment for
the benefit of creditors, the commencement of any proceeding
under any bankruptcy or insolvency laws by or against Trustor,
or the dissolution or termination of Trustor's existence as a
going business (if Trustor is a business) .
Foreclosure, etc. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Trustor against any of the Property.
However, this subsection shall not apply in the event of a good
faith dispute by Trustor as to the validity or reasonableness
of the claim which is the basis of the foreclosure, provided
that Trustor gives Lender written notice of such claim and
furnishes reserves or a surety bond for the claim satisfactory
to Lender.
5.1 RIGHTS AND REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence
of any Event of Default and at any time thereafter, Trustee or
Lender, at its option, may exercise anyone or more the
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following rights and remedies, in addition to any other rights
or remedies provided by law:
Foreclosure by Sale. Upon an Event of Default under this Deed
of Trust, Beneficiary may declare the entire indebtedness
secured by this Deed of Trust immediately due and payable by
deli very to Trustee of written declaration of default and
demand for sale and of written notice of default and of
election to cause to be sold the Property, which notice Trustee
shall cause to be filed for record. Beneficiary also shall
deposit with Trustee this Deed of Trust, the Promissory Note,
other documents requested by Trustee, and all documents
evidencing expenditures secured hereby. After the lapse of
such time may then be required by law following the recordation
of the notice of default, and notice of sale having been given
as then required by law. Trustee, without demand on Trustor,
shall sell the Property at the time and place fixed by it in
the notice of sale, either as a whole or in separate parcels,
and in such order as it may determine, at public auction to the
highest bidder for cash in lawful money of the United States,
payable at time of sale. Trustee may postpone sale of all or
any portion of the Property by public announcement at such time
and place of sale, and from time to time thereafter may
postpone such sale by public announcement at the time filed by
the preceding postponement in accordance with applicable law.
Trustee shall deliver to such purchaser its deed conveying the
Property so sold, but without any covenant or warranty, express
or implied. The recitals in such deed of any matters or facts
shall be conclusive proof of the truthfulness thereof. Any
person, including Trustor, Trustee or Beneficiary may purchase
at such sale. After deducting all costs, fees and expenses of
Trustee and of this Trust, including cost of evidence of title
in connection with sale. Trustee shall apply the proceeds of
sale to payment of; all sums expended under the terms hereof,
not then repaid, with accrued interest at the amount allowed by
law in effect at the date hereof; all other sums then secured
hereby; and the remainder, if any, to the person or persons
legally entitled thereto.
Judicial Foreclosure. With respect to all or any part of the
Property, Lender shall have the right in lieu of foreclosure by
power of sale to foreclose by judicial foreclosure in
accordance with and to the full extent provided by California
law.
Collect Rents. Lender shall have the right, without notice to
Trustor, to take possession of and manage the Property and
collect the Rents, including amounts past due and unpaid, and
apply the net proceeds, over and above Lender's costs, against
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the indebtedness. In furtherance of this right, Lender may
require any tenant or other user of the Property to make
payments of rent or use fees directly to Lender. If the Rents
are collected by Lender, then Trustor irrevocably designates
Lender as Trustor's attorney-in-fact to endorse instruments
recei ved in payment thereof in the name of Trustor and to
negotiate the same and collect the proceeds. Payments by
tenants or other users to Lender in response to Lender's demand
shall satisfy the obligations for which the payments are made,
whether or not any property grounds for the demand existed.
Lender may exercise its rights under this subparagraph either
in person, by agent, or through a receiver.
Appoint Receiver. Lender shall have the right to have a
receiver appointed to take possession of all or any part of the
Property, with the power to protect and preserve the Property,
to operate the Property preceding foreclosure or sale, and to
collect the Rents from the Property and apply the proceeds,
over and above the cost of the receivership against the
indebtedness. The receiver may serve without bond if permitted
by law. Lender's right to the appointment of a receiver shall
exist whether or not the apparent value of the Property exceeds
the indebtedness by a substantial amount. Employment by Lender
shall not disqualify a person from serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possession of the
Property after the Property is sold as provided above or Lender
otherwise becomes entitled to possession of the Property upon
default of Trustor, Trustor shall become a tenant at sufferance
of Lender or the purchaser of the Property and shall, at
Lender's option, either (a) pay a reasonable rental for the use
of the Property, or (b) vacate the Property immediately upon
the demand of Lender.
Other Remedies. Trustee or Lender shall have any other right
or remedy provided in this Deed of Trust, the Promissory Note,
or the Disposition and Development Agreement or by law.
Notice of Sale. Lender shall give Trustor reasonable notice of
the time and place of any public sale of the Personal Property
or of the time after which any private sale or other intended
disposition of the Personal Property is to be made. Reasonable
notice shall mean notice given at lease five (5) days before
the time of the sale or disposition. Any sale of Personal
Property may be made in conj unction with any sale of the
Property.
Sale of the Property. To the extent permitted by applicable
law, Trustor hereby waives any and all rights to have the
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Property marshalled. In exercising its rights and remedies,
the Trustee or Lender shall be free to sell all or any part of
the Property together or separately, in one sale or by separate
sales. Lender shall be entitled to bid at any public sale on
all or any portion of the Property.
Waiver: Election of Remedies. A waiver by any party of a
breach of a provision of this Deed of Trust shall not
constitute a waiver of or prejudice the party's rights
otherwise to demand strict compliance with that provision or
any other provision. Election by Lender to pursue any remedy
provided in this Deed of Trust or the Promissory Note or
provided by law shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to
perform an obligation of Trustor under this Deed of Trust
after failure of Trustor to perform shall not affect Lender's
right to declare a default and to exercise any of its remedies.
Attorneys' Fees; Expenses. If Lender institutes any suit or
action to enforce any of the terms of this Deed of Trust,
Lender shall be entitled to recover such sum as the court may
adj udge reasonable as attorneys' fees at trial and on any
appeal. Whether or not any court action is involved, all
reasonable expenses incurred by Lender which in Lender's
opinion are necessary at any time for the protection of its
interest or the enforcement of its rights shall become a part
of the indebtedness payable on demand and shall bear interest
at a rate of interest per annum of eight percent (8%)
commencing on the date of expenditure until repaid. Expenses
covered by this paragraph include, without limitation, however
subject to any limits under applicable law, Lender's attorneys'
fees whether or not there is a lawsuit, including attorneys'
fees for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals and any
anticipated post-j udgment collection services, the cost of
searching records, obtaining title reports (including
foreclosure reports), surveyors' reports, appraisal fees, title
insurance, and fees for the Trustee, to the extent permitted by
applicable law. Trustor also will pay any court costs, in
addition to all other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and
duties of Lender as set forth in this section.
6.0 POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions
relating to the powers and obligations of Trustee are part of
this Deed of Trust:
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Powers of Trustee. In addition to all powers of Trustee
arising as a matter of law, Trustee shall have the power to
take the following actions with respect to the Property upon
the written request of Lender and Trustor: (a) join in
preparing and filing a map or plat of the Property, including
the dedication of streets or other rights to the public; (b)
join in granting any easement or creating any restriction on
the Property; and (c) join in any subordination authorized
under the Disposition and Development Agreement or other
agreement affecting this Deed of Trust or the interest of
Lender under this Deed of Trust.
Obligations to Notify. Trustee shall not be obligated to
notify any other party of a pending sale under any other trust
deed or lien, or of any action or proceeding in which Trustor,
Lender, or Trustee shall be a party, unless the action or
proceeding is brought by Trustee.
Trustee. Trustee shall meet all qualifications required for
Trustee under applicable law. In addition to the rights and
remedies set forth above, with respect to all or any part of
the Property, the Trustee shall have the right to foreclose by
notice and sale, and Lender shall have the right to foreclose
by judicial foreclosure, in either case in accordance with and
to the full extent provided by applicable law.
Successor Trustee. Lender, at Lender's option, may from time
to time appoint a successor Trustee to any Trustee appointed
hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the recorder of San Bernardino
County, California. The instrument shall contain, in addition
to all other matters required by state law, the names of the
original Lender, Trustee, and Trustor the book and page where
this Deed of Trust is recorded, and the name and address of the
successor trustee, and the instrument shall be executed and
acknowledged by Lender or its successors in interest. The
successor trustee, without conveyance of the Property, shall
succeed to all the title, power, and duties conferred upon the
Trustee in this Deed of Trust and by applicable law. This
procedure for substitution of trustee shall govern to the
exclusion of all other provisions for substitution.
7.0 NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this
Deed of Trust shall be in writing and shall be effective when
actually delivered or, if mailed, shall be deemed effective
when deposited in the United States mail first class,
registered mail, postage prepaid, directed to the addresses
shown near the beginning of this Deed of Trust. Any party may
change its address for notices under this Deed of Trust by
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giving formal written notice to the other parties, specifying
that the purpose of this notice is to change the party's
address. All copies of notices of foreclosure from the holder
of any lien which has priority over this Deed of Trust shall be
sent to Lender's address, as shown near the beginning of this
Deed of Trust. For Notice purposes, Trustor agrees to keep
Lender and Trustee informed at all times of Trustor's current
address. Each Trustor requests that copies of any notices of
default and sale be directed to Trustor's address shown near
the beginning of this Deed of Trust.
8.0 STATEMENT OF OBLIGATION. Lender may collect a fee, in an mount
not to exceed the statutory maximum, for furnishing the
statement of obligation as provided by Section 2943 of the
Civil Code of California.
9.0 [Reserved -- No Text]
10.0 ASSIGNMENT OF CONTRACTS. In addition to any other grant,
transfer or assignment effectuated hereby, without in any
manner limiting the generality of the grants in the conveyance
and grant section hereof, Trustor shall assign to Beneficiary,
as security for the indebtedness secured hereby, Trustor's
interest in all agreements, contracts, leases, licenses and
permits affecting the Property in any manner whatsoever, such
assignments to be made, if so requested by Beneficiary, by
instruments in form satisfactory to Beneficiary; but no such
assignment shall be construed as a consent by Beneficiary to
any agreement, contract license or permit so assigned, or to
impose upon Beneficiary any obligations with respect thereto.
11.0 BOOKS AND RECORDS. Trustor shall maintain, or cause to be
maintained, proper and accurate books, records and accounts
reflecting all items of income and expense in connection with
the operation of the Property or in connection with any
services, equipment or furnishings provided in connection with
the operation of the Property, whether such income or expense
be realized by Trustor or by any other person or entity
whatsoever excepting persons unrelated to and unaffiliated with
Trustor and who leased from Trustor portions of the Property
for the purposes of occupying the dame. Upon the request of
Beneficiary, Trustor shall prepare and deliver to Beneficiary
such financial statements regarding operation of the Property
as Beneficiary may reasonably request. Beneficiary, or its
designee, shall have the right from time to time during normal
business hours to examine such books, records and accounts and
to make copies or extracts therefrom.
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12.0 MISCELLANEOUS PROVISIONS. The following
provisions are a part of this Deed of Trust:
miscellaneous
Amendments. This Deed of Trust constitutes the entire
understanding and agreement of the parties as to the matters
set forth in this Deed of Trust. No alteration of or amendment
to this Deed of Trust shall be effective unless given in
writing and signed by the party or parties sought to be charged
or bound by the alteration or amendment.
Acceptance by Trustee. Trustee accepts this Trust when this
Deed of Trust, duly executed and acknowledged, is made a public
record as provided by law.
Applicable Law. This Deed of Trust has been delivered to
Lender and accepted by Lender in the State of California. This
Deed of Trust shall be governed by and construed in accordance
with the laws of the State of California.
Caption Headings. Caption headings in this Deed of Trust are
for convenience purposes only and are not to be used to
interpret or define the provisions of this Deed of Trust.
Merger. There shall be no merger of the interest or estate
created by this Deed of Trust with any other interest or estate
in the Property at any time held by or for the benefit of
Lender in any capacity, without the written consent of Lender.
Severability. If a court of competent jurisdiction finds any
provision of this Deed of Trust to be invalid or unenforceable
as to any person or circumstance, such finding shall not render
that provision invalid or unenforceable as to any other persons
or circumstances. If feasible, any such offending provision
shall be deemed to be modified to be wi thin the limits of
enforceability or validity; however, if the offending provision
cannot be so modified, it shall be stricken and all other
provisions of this Deed of Trust in all other respects shall
remain valid and enforceable.
Subdivision of the Property. The Trustor may cause the
Property to be subdivided in compliance with the Subdivision
Map Act at any time, and the Lender hereby consents to the
recordation by the Trustor of a parcel map, subdivision map or
parcel merger map affecting all or any part of the Property.
Time is of the Essence. Time is of the essence in the
performance of this Deed of Trust.
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Waivers and Consents. Lender shall not be deemed to have
waived any rights under this Deed of Trust unless such waiver
is in writing and signed by Lender. No delay or omission on
the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by and any
party of a provision of this Deed of Trust shall not constitute
a waiver of or prejudice the party's right otherwise to demand
strict compliance with that provision or any other provision.
No prior waiver by Lender, nor any course of dealing between
Lender and Trustor, shall constitute a waiver of any of
Lender's rights or any of Trustor's obligations as to any
future transactions. Whenever consent by Lender is required in
this Deed of Trust, the granting of such consent by Lender in
any instance shall not constitute continuing consent to
subsequent instances where such consent is required.
THE TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED
OF TRUST, AND THE TRUSTOR AGREES TO ITS TERMS, AND THE TERMS OF THE
PROMISSORY NOTE SECURED BY THIS DEED OF TRUST.
TRUSTOR:
Century Crowell Communities, L.P.,
a California limited partnership
By Century Home Communities,
a California corporation
By:
John W. pavelak
President
By:
Secretary
[SIGNATURES MUST BE ACCOMPANIED
BY NOTARY JURAT]
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EXHIBIT "C"
AGENCY GRANT DEED
[TO BE SUBMITTED IN A FORM MUTUALLY ACCEPTABLE TO THE AGENCY AND
THE DEVELOPER BY A DATE NO LATER THAN THE END OF THE DEVELOPER'S
DUE DILIGENCE PERIOD]
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Exh. "C" - 1
CDC 1999-25
EXHIBIT "D"
SCOPE OF DEVELOPMENT
The Sites shall be developed as follows: twenty-four (24) single
family detached residential units on the Phase I Site and thirty-
eight (38) single family detached residential units on the Phase
II Site and all off-site improvements with respect to the Phase
II Site, as set forth in the Agreement. The Sites shall be
developed in accordance with this Agreement, but subject to the
requirements of the Zoning ordinance of the City and any
variances or modifications therefrom as approved by the City.
The Developer shall effect the design and construction with
respect to the development of the Sites in accordance with the
Schedule of Performance (Exhibit "D") and this Agreement as
follows:
The Sites will be developed in two (2) Phases: in the first
phase, twenty-four (24) single family detached residential units
will be constructed on the Phase I Site and all necessary
landscaping for the Phase I Site shall be installed; in the
second phase, thirty-eight (38) single family detached
residential units will be constructed on the Phase II Site and
all necessary landscaping for the Phase II Site shall be
installed.
In addition to the construction of the residential units on the
Phase II Site and the installation of all necessary landscaping
with respect thereto, the Developer will be responsible for the
construction of all subdivision public improvements, including,
but
not limited to streets, sewers and sewer lines, power lines and
poles, water lines, gas lines, cable lines and related vaults,
storm drains and vaults, traffic access ways, lighting poles and
standards, handicapped access ramps, construction of tree wells
and planting of trees.
The development shall be first class, constructed of quality
materials, to City Code, and shall be unified in architectural
theme and treatment throughout the Sites and adjacent off-site
areas, insofar as reasonable and practicable.
All improvements to be constructed by the Developer shall be
constructed or installed in accordance with the technical
specifications, standards and practices of the City and all
governing agencies and in accordance with plans and
specifications approved by the City.
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Exh. "D" - 1
CDC 1999-25
The Developer shall cause the proper documents to be filed and
fees paid to all governmental or regulatory agencies, including
utilities, for applications for all required permits and
approvals.
The Developer shall at its cost and expense be responsible for
the design and construction of off-site improvements as described
above in connection with the development of the Phase II Site, in
accordance with any and all standards and requirements of the
City, utilities, or other governmental authorities.
The Developer shall at its cost and expense undertake and
complete any and all soils, utility and drainage studies, plans
and reports that may be necessary in connection with the
development of the Sites and shall provide a copy of said studies
and reports to the Agency. Said studies and reports shall be
completed prior to the issuance of any building permits for the
Property.
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Exh . "D " - 2
CDC 1999-25
EXHIBIT "E"
SCHEDULE OF PERFORMANCE
(Days shall be calendar days, and all dates herein are
subject to change due to force majeure in accordance with
Section 6.05 of the Agreement)
[THIS SCHEDULE OF PERFORMANCE SHALL BE COMPLETED IN A MUTUALLY
ACCEPTABLE FORM BY THE PARTIES BY NO LATER THAN THE END OF THE
DEVELOPER'S DUE DILIGENCE INVESTIGATIONS]
Agency approval of DDA July 19,1999
Close of EscrowWithin 90 days following
Agency Approval of DDA and Opening of Escrow
PHASE I-24 homes
Submittal of plans for weeks from approval of
approvalAgreement
planning
Submittal of construction weeks from Planning
documents and landscapingapproval
plans
Start of construction weeks from issuance
of all permits
Completion of model house weeks from start of
construction
Completion of Phase I weeks from start of
construction
PHASE II - 38 homes and construction
of off-site improvements with respect
to Phase II Site
Submittal of construction
documents and landscaping
plans weeks from
Start of construction weeks from issuance of
all permits
Completion of Phase II weeks from start of
construction
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CDC 1999-25
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CDC 1999-25
EXHIBIT "F"
When Recorded, Mail to:
CERTIFICATE OF COMPLETION
We, , Chairperson and
Secretary of the Redevelopment Agency of the City of San
Bernardino (the "Agency") hereby certify as follows:
By its Resolution No. , adopted and approved
1999, the Agency has resolved as follows:
Section 1. The improvements required to be constructed in
accordance with that certain Disposition and Development
Agreement (the "Agreement") dated , by and between
the Agency and , a California
(the "Developer") on Lot No. of Tract (the "Lot")
more fully described in Exhibit "A" attached hereto and
incorporated herein by this reference, have been completed in
accordance with the provisions of said Agreement.
Section 2. This Certificate of Completion shall
constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to
the obligations of the Developer, and its successors and assigns,
to construct and develop the improvements on the Lot, excluding any
normal and customary tenant improvements and minor building
"punch-list" items, and including any and all buildings and any and
all parking, landscaping and related improvements necessary to
support or which meet the requirements applicable to the building
and its use and occupancy on the Lot, whether or not said
improvements are on the Lot or on other property subject to the
Agreement, all as described in the Agreement, and to otherwise
comply with the Developer's obligations under the Agreement with
respect to the Lot and the dates for the beginning and completion
of construction of improvements thereon under the Agreement;
provided, however, that the Agency may enforce any covenant
surviving this Certificate of Completion in accordance with the
terms and conditions of the Agreement and the grant deed pursuant
to which the property containing the Lot was conveyed under the
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CDC 1999-25
Agreement. Said Agreement is an official record of the Agency and
a copy of said Agreement may be inspected in the office of the
Secretary of the Redevelopment Agency of the City of San Bernardino
located at 201 North "En Street, Suite 301, San Bernardino,
California, during regular business hours.
Section 3.
Completion pertains is
hereto.
The Lot to which this Certificate of
more fully described in Exhibit "A" attached
DATED AND ISSUED this
day of
, 199 .
Executive Director of the Redevelopment Agency
of the City of San Bernardino
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EXHIBIT "G"
COMMUNITY REDEVELOPMENT HOUSING AFFORDABILITY
COVENANTS AND RESTRICTIONS
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Attn: Executive Director
(Space Above Line Reserved For Use By Recorder)
RECORDATION OF THIS INSTRUMENT
IS EXEMPT FROM ALL FEES AND
TAXES
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING
AFFORDABILITY COVENANTS AND RESTRICTIONS
Dated as of
, 200
Arrow Vista
Single Family
Housing Improvement Project
STATE COLLEGE REDEVELOPMENT PROJECT
CDC 1999-25
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING
AFFORDABILITY COVENANTS AND RESTRICTIONS
(Arrow Vista Single Family Housing Improvement Project)
THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
COMMUNITY REDEVELOPMENT HOUSING AFFORDABILITY COVENANTS AND
RESTRICTIONS (the "Section 33334.3 Covenant") is made and entered
into as of , 200 , by and among CENTURY-CROWELL,
Communities, LP, A California limited partnership (the Developer"),
the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body
corporate and politic (the "Agency"), and
(the "Qualified
relates to the
Homebuyer"), and this Section 33334.3 Covenant
following facts set forth in Recitals.
R E C I TAL S
A. The Qualified Homebuyer proposes to acquire a single
family residence (the "New Home"), located within the City of San
Bernardino (the "City"), from the Developer, to be owned and
occupied by the Qualified Homebuyer as their principal residence.
The legal description of the New Home is attached hereto as Exhibit
"A" and incorporated herein by this reference.
B. The Agency has used and applied certain affordable
housing development funds from the Low-and Moderate-Income Housing
Funds of several different redevelopment project areas, including
the State College Redevelopment Project, to make the New Home
available for acquisition by the Qualified Homebuyer from the
Developer subj ect to the terms and conditions of the Community
Redevelopment Law found at Health and Safety Code Section 33000, et
seg. (the "Act") and this Section 33334.3 Covenant; and
C. The Act mandates that the acquisition, use and occupancy
of the New Home shall be restricted in certain respects for the
term as provided herein (the "Qualified Residence Period") in order
to ensure that the New Home will be used and occupied in accordance
with the Act and the affordable single family residential dwelling
unit development goals and objectives of the Agency.
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NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
UNDERTAKINGS SET FORTH HEREIN, AND FOR OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, THE QUALIFIED HOMEBUYER, THE DEVELOPER AND THE AGENCY
DO HEREBY COVENANT AND AGREE FOR THEMSELVES, THEIR SUCCESSORS AND
ASSIGNS AS FOLLOWS:
Section 1. Definitions of Certain Terms. As used in this
Section 33334.3 Covenant, the following words and terms shall have
the meaning as provided in the Recitals or in this Section 1 unless
the specific context of usage of a particular word or term may
otherwise require:
Adjusted Family Income. The words "Adjusted Family Income"
mean the anticipated total annual income (adjusted for family
si ze) of each individual or family residing or treated as
residing in the New Home as calculated in accordance with
Treasury Regulation 1.167 (k) 3b) (3) under the Code, as
adj usted, based upon family size in accordance with the
household income adjustment factors adjusted and amended from
time to time, pursuant to Section 8 of the United States
Housing Act of 1937, as amended.
Affordable Housing Cost. The words "Affordable Housing Cost"
shall have the meaning as set forth in Health and Safety Code
Section 50052.5. In the case of a Moderate Income Household,
the Affordable Housing Cost at the time of the close of the
New Home Escrow shall not be less than twenty eight percent
(28%) of the gross income of the household, nor exceed the
product of thirty-five percent (35%) times one hundred ten
percent (110%) of area median income for the city adjusted for
family size as appropriate for the New Home. In the event
that either the Qualified Homebuyer at the time of the close
of the New Home Escrow, or later that a proposed Successor-In-
Interest may be a "very low income household" or a "lower
income household", as these terms are defined in Health and
Safety Code Section 50053.5(b), then in such event the amount
of the maximum Affordable Housing Cost payable by any such
Successor-In-Interest household in connection with the
acquisition of the New Home at any time during the Qualified
Residence Period shall be calculated as set forth in Health
and Safety Code 50053.5(b) (1) or (2), as applicable.
Code. The word "Code" means the Internal Revenue Code of
1986, as amended, and any regulation, rulings or procedures
with respect thereto.
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Delivery Date. The words "Deli very Date" mean the date of
delivery of title and possession of the New Home from the
Developer to the Qualified Homebuyer at the close of the New
Home Escrow.
Moderate-Income Household. The words "Moderate-Income
Household" mean persons and families whose income does not
exceed one hundred and twenty percent (120%) of the area
median income of the City adjusted for family size by the
State Department of Housing and Community Development in
accordance with adjustment factors adopted and amended from
time to time by the United States Department of Housing and
Urban Development pursuant to Section 8 of the United States
Housing Act of 1937, and Health and Safety Code Section 50093.
New Home. The words "New Home" mean and refer to the
completed affordable single-family residential dwelling unit
(including the land and landscape improvements thereon) as
constructed and installed by the Developer and sold to the
Qualified Homebuyer.
New Home Escrow. The words "New Home Escrow" mean and refer
to the real estate conveyance transaction or escrow by and
between the Developer and the Qualified Homebuyer (or later,
by and between the Qualified Homebuyer and the Successor-In-
Interest). The transfer of the New Home from the Developer to
the Qualified Homebuyer (or later, by and between the
Qualified Homebuyer and the Successor-In-Interest) shall be
accomplished upon the close of the New Home Escrow.
Notice of Agency Concurrence. The words "Notice of Agency
Concurrence" mean and refer to the acknowledgment in
recordable form in which the Agency confirms that the proposed
Successor-In-Interest of the Qualified Homebuyer satisfies all
of the Adjusted Family Income and other requirements of this
Section 33334.3 Covenant for occupancy of the New Home by the
Successor-In-Interest at any time during the Qualified
Residence Period.
Qualified Homebuyer. The words "Qualified Homebuyer" mean the
purchaser of the New Home from the Developer (e. g. : all
persons identified as having a property ownership interest
vested in the New Home as of the close of the New Home
Escrow). At the close of the New Home Escrow, the Qualified
Homebuyer shall: (i) have an annual Adj usted Family Income
which does not exceed the household income qualification
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limits of a Moderate-Income Household: (ii) shall be a first-
time homebuyer, as this term is defined in Health and Safety
Code Section 50068.5; and (iii)pay no more than an Affordable
Housing Cost for the New Home pursuant to the terms of the
purchase transaction for the New Home, including all sums
payable by the Qualified Homebuyer for its purchase money
mortgage financing, insurance, escrow and other fees and
costs.
Qualified Residence Period. The words "Qualified Residence
Period" mean the period of time beginning on the Delivery Date
and ending on the date which is ten (10) years after the
Delivery Date.
Section 33334.3 Covenant. The words "Section 33334.3
Covenant" mean these Redevelopment Agency of the City of San
Bernardino Community Redevelopment Housing Affordability
Covenants and Restrictions by and among the Qualified
Homebuyer, the Developer and the Agency pertaining to the New
Home.
Successor-In-Interest. The words "Successor-In-Interest" mean
and refer to the person, family or household which may acquire
the New Home from the Qualified Homebuyer at any time during
the Qualified Residence Period by purchase, assignment,
transfer or otherwise. The Successor-In-Interest shall be a
"first-time homebuyer" and shall have an income level for the
twelve (12) months prior to the date on which the Successor-
In-Interest acquires the New Home which does not exceed the
maximum Adjusted Family Income level for a Moderate-Income
Household. Upon acquisition of the New Home the Successor-
In-Interest shall be bound by each of the covenants,
conditions and restrictions of this Section 33334.3 Covenant.
The titles and headings of the sections of this Section
33334.3 Covenant have been inserted for convenience of reference
only and are not to be considered a part hereof and shall not in
any way modify or restrict the meaning any of the terms or
provisions hereof.
Section 2. Acknowledgments and Representations of the
Qualified Homebuver. The Qualified Homebuyer hereby acknowledges
and represents that, as of the Delivery Date:
(a) the total household income for the Qualified Homebuyer
does not exceed the maximum amount permitted as Adjusted Family
Income for a Moderate-Income Household, adjusted for family size;
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(b) the Qualified Homebuyer intends to promptly occupy the
New Home after the Delivery Date as the principal place of
residence for a term of at least two (2) years following the
Delivery Date and the Qualified Homebuyer has not entered into any
arrangement and has no present intention to rent, sell, transfer
or assign the New Home to any third party during the Qualified
Residence Period so as to frustrate the purpose of this Section
33334.3 Covenant;
(c) the Qualified Homebuyer has no present intention to lease
or rent any room or sublet or rent a portion of the New Home to any
relative of the Qualified Homebuyer or to any third person at any
time during the Qualified Residence Period;
(d) the sum payable each month by the Qualified Homebuyer
following the close of the New Home Escrow as principal and
interest, property taxes and, property casualty insurance for the
acquisition of the New Home does not exceed the Affordable Housing
Cost for the household;
(e) the Qualified Homebuyer agrees to provide the Agency with
the following items of information for inspection by the Agency
promptly upon written request of the Agency:
(i) State and federal income tax returns filed by all
persons who reside in the New Home for the
calendar year preceding the close of the New Home
Escrow for inspection of such State and federal
income tax returns;
(ii) current wage, income and salary statements for
all person residing in the New Home at the close
of the New Home Escrow;
(f) The Qualified Homebuyer has been informed by the
Developer that this Section 33334.3 Covenant imposes certain
restrictions on the use and occupancy of the New Home during the
term of this Section 33334.4 Covenant and that this Section 33334.3
Covenant imposes certain restrictions on the resale of the New Home
during the Qualified Residence Period. The Qualified Homebuyer
acknowledges and understands that these restrictions shall be
applicable to the New Home and to any resale of the New Home from
the Deli very Date to the end of the Qualified Residence Period
which is , 201
Dated:
Initials of
Qualified Homebuyer
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Section 3. Covenant of the Oualified Homebuver to Maintain
Affordabilitv of the New Home During the Oualified Residence Period
and Covenant Relating to Sale or Transfer of the New Home During
the Oualified Residence Period to a Successor-In-Interest.
(a) The Qualified Homebuyer for itself, its heirs, successors
and assigns, hereby covenants and agrees that during the term of
the Qualified Residence Period the New Home shall be used and,
occupied by the Qualified Homebuyer as its principal residence, and
that the New Home shall be reserved for sale, use and occupancy by
the Qualified Homebuyer and/or for another Moderate-Income
Household as a Successor-In-Interest at an Affordable Housing Cost.
The Qualified Homebuyer, for itself, its heirs, successors and
assigns, further covenants and agrees that, during the Qualified
Residence Period, the Agency shall have the right and duty as
provided in this Section 3 to verify that each proposed Successor-
In-Interest of the Qualified Homebuyer in the New Home satisfies
the income requirements and Affordable Housing Cost limitations of
a Moderate-Income Household (based upon the Adjusted Family Income
of each household), and that the completion of any resale or
transfer of the New Home to a Successor-In-Interest shall be
subject to the recordation of the "Notice of Agency Concurrence" as
provided in Section 3 (d) .
(b) The Qualified Homebuyer, for itself, its successors and
assigns, hereby covenants and agrees that during the term of the
Qualified Residence Period the Qualified Homebuyer shall not sell,
transfer or otherwise dispose of the New Home (or any interest
therein) to a Successor-In-Interest without first giving written
notice to the Agency and without first obtaining the written
concurrence of the Agency as provided herein. At least sixty (60)
days prior to the date on which the Qualified Homebuyer proposes to
transfer title in the New Home to a Successor-In-Interest, the
Qualified Homebuyer shall send a written notice to the Agency as
provided in Section 17 of the intention of the Qualified Homebuyer
to sell the New Home to a Successor-In-Interest which includes the
following true and correct information:
(i)
name of the proposed Successor-In-Interest
(including the identity of all persons in the
household of the Successor-In-Interest, proposing
to reside in the New Home);
(ii)
copies of State and federal income tax returns
for the Successor-In-Interest for the calendar
year preceding the year in which the notice of
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(iii)
(iv)
(v)
(vi)
CDC 1999-25
intention to sell the New Home is given to the
Agency;
resale price of the New Home payable by the
Successor-In-Interest, including the terms of all
purchase money mortgage financing to be assumed,
provided or obtained by the Successor-In-
Interest, escrow costs and charges, realtor
broker fees and all other resale costs or charges
payable by either the Qualified Homebuyer or the
Successor-In-Interest;
name address, and telephone number of the escrow
company which shall coordinate the transfer of
the New Home from the Qualified Homebuyer to the
Successor-In-Interest;
appropriate mortgage credit reference for the
Successor-In-Interest with a written
authorization signed by the Successor-In-Interest
authorizing the Agency to contact each such
reference; and
such other relevant information as the Agency may
reasonably request, as provided in Section 3(c).
(c) Within twenty (20) days following receipt of the notice
of intention described in Section 3(b), the Agency shall provide
the Qualified Homebuyer with either a preliminary confirmation of
approval or a preliminary rejection of approval in writing of the
income and household occupancy qualifications of the Successor-In-
Interest. The Agency shall not unreasonably withhold approval of
any proposed sale of the New Home to a Successor-In-Interest who
satisfies the Adjusted Family Income and the Affordable Housing
Cost requirements for occupancy of the New Home and for whom the
other information as described in Section 3(b) has been provided to
the Agency. In the event that the Agency may request additional
information relating to the confirmation of the matters described
in Section 3(b), the Qualified Homebuyer shall provide such
information to the Agency as promptly as feasible.
(d) Upon its final confirmation of approval of the Adjusted
Family Income and Affordable Housing Cost eligibility of the
Successor-In-Interest to acquire the New Home, the Agency shall
deliver a written acknowledgment and approval of the resale of the
New Home to the Successor-In-Interest in recordable form to the
escrow holder referenced in Section 3 (b) (iv) above, and thereafter
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the Successor-In-Interest may acquire the New Home subject to the
satisfaction of the following conditions:
(i)
the recordation of the
Concurrence executed by the
and the Agency at the close
Notice of Agency
Successor-In-Interest
of the resale escrow;
(ii) the escrow holder shall have provided the Agency
with a copy of the customary form of the final
escrow closing statement of the Qualified
Homebuyer and the final escrow closing statement
for the Successor-In-Interest; and
(iii)
the other conditions
established by the
Successor-In-Interest
of the resale escrow as
Qualified Homebuyer and
shall have been satisfied.
(e) The Qualified Homebuyer for itself, its successors and
assigns hereby covenants and agrees that during the Qualified
Residence Period the New Home shall not be leased, subleased, or
rented to any third person, except for a temporary period (not to
exceed 12 months) in the event of an emergency or other unforseen
circumstance as may be expressly approved in writing by the Agency
subject to compliance during the temporary rental period with the
reasonable temporary rental occupancy conditions required by the
Agency. The Qualified Homebuyer shall submit a written request to
the Agency prior to the commencement of the temporary occupancy, as
practicable, but in any event wi thin not more than (60) days
following the commencement of a temporary rental occupancy of the
New Home by a third party, which notice shall set forth the grounds
on which the Qualified Homebuyer believes an emergency or other
unforeseen circumstance has occurred and that a temporary rental
occupancy in necessary.
Section 4. Maintenance Condition of the New Home. The
Qualified Homebuyer, for itself, its successors and assigns, hereby
covenants and agrees that:
(a) The exterior areas of the New Home which are subject to
public view (e.g.: all improvements, paving, walkways, landscaping,
and ornamentation) shall be maintained in good repair and a neat,
clean and orderly condition, ordinary wear and tear excepted. In
the event that at any time during the term of the Qualified
Residence Period, there is an occurrence of an adverse condition on
any area of the New Home which is subj ect to public view in
contravention of the general maintenance standard described above,
(a "Maintenance Deficiency") then the Agency shall notify the
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Qualified Homebuyer in writing of the Maintenance Deficiency and
give the Qualified Homebuyer thirty (30) days from the date of such
notice to cure the Maintenance Deficiency as identified in the
notice. The words "Maintenance DeficiencyH include without
limitation the following inadequate or non-confirming property
maintenance conditions and/or breaches of single family dwelling
residential property use restrictions:
failure to properly maintain the windows, structural
elements, and painted exterior surface areas of the
dwelling unit in a clean and presentable manner;
failure to keep the front and side yard areas of the
property free of accumulated debris, appliances,
inoperable motor vehicles or motor vehicle parts, or free
of storage of lumber, building materials or equipment not
regularly in use on the property;
failure to regularly mow lawn areas or permit grasses
planted in lawn areas to exceed nine inches (gH) in
height, or failure to otherwise maintain the landscaping
in a reasonable condition free of wed and debris;
parking of any commercial motor vehicle in excess of
7,000 pounds gross weight anywhere on the property, or
the parking of motor vehicles, boats, camper shells,
trailers, recreational vehicles and the like in any side
yard or on any other parts of the property which are not
covered by a paved and impermeable surface;
the use of the garage area of the dwelling unit for
purposes other than the parking of motor vehicles and the
storage of personal possessions and mechanical equipment
of persons residing in the New Home.
In the event the Qualified Homebuyer fails to cure or commence
to cure the Maintenance Deficiency within the time allowed, the
Agency may thereafter conduct a public hearing following
transmittal of written notice thereof to the Qualified Homebuyer
ten (10) days prior to the scheduled date of such public hearing in
order to verify whether a Maintenance Deficiency exists and whether
the Qualified Homebuyer has failed to comply with the provision of
this Section 4(a). If, upon the conclusion of a public hearing,
the Agency makes a finding that a Maintenance Deficiency exists and
that there appears to be non-compliance with the general
maintenance standard, as described above, thereafter the Agency
shall have the right to enter the New Home (exterior areas only)
and perform all acts necessary to cure the Maintenance Deficiency,
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or to take other action at law or equity the Agency may then have
to accomplish the abatement of the Maintenance Deficiency. Any sum
expended by the Agency for the abatement of a Maintenance
Deficiency as authorized by this Section 4(a) shall become a lien
on the New Home. If the amount of the lien is not paid wi thin
thirty (30) days after written demand for payment by the Agency to
the Qualified Homebuyer, the Agency shall have the right to enforce
the lien in the manner as provided in Section 4(c).
(b) Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the New Home shall be removed by
the Qualified Homebuyer from any exterior surface of a structure or
improvement on the New Home by either painting over the evidence of
such vandalism with a paint which has been color-matched to the
surface on which the paint is applied, or graffiti may be removed
with solvents, detergents or water as appropriate. In the event
that graffiti is placed on the New Home (exterior areas only) and
such graffiti is visible from an adj acent or contiguous public
right-of-way and thereafter such graffiti is not removed within 72
hours following the time of its application; then in such event and
without notice to the Qualified Homebuyer, the Agency shall have
the right to enter the New Home and remove the graffiti.
Notwithstanding any provision of Section 4(a) to the contrary, any
sum expended by the Agency for the removal of graffiti from the New
Home as authorized by this Section 4(b) shall become a lien on the
New Home. If the amount of the lien is not paid within thirty (30)
days after written demand for payment by the Agency to the
Qualified Homebuyer, the Agency shall have the right to enforce its
lien in the manner as provided in Section 4(c).
(c) The parties hereto further mutually understand and agree
that the rights conferred upon the Agency under this Section 4
expressly include the power to establish and enforce a lien or
other encumbrance against the New Home in the manner provided
under Civil Code Sections 2924, 2924b and 2924c in the amount as
reasonably necessary to restore the New Home to the maintenance
standard required under Section 4 (a) or Section 4 (b), including
attorneys fees and costs of the Agency associated with the
abatement of the Maintenance Deficiency or removal of graffiti and
the collection of the costs of the Agency in connection with such
action. In any legal proceeding for enforcing such a lien against
the New Home, the prevailing path shall be entitled to recover its
attorneys' fees and costs of suit. The provisions of this Section
4, shall be a covenant running with the land for the Qualified
Residence Period and shall be enforceable by the Agency in its
discretion, cumulative with any other rights or powers granted by
the Agency under applicable law. Nothing in the foregoing
provisions of this Section 4 shall be deemed to preclude the
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Qualified Homebuyer from making any alterations, additions, or
other changes to any structure or improvement or landscaping on the
New Home, provided that such changes comply with the zoning and
development regulations of the City and other applicable law.
Section 5.
[RESERVED/NO TEXT]
Section 6.
[RESERVED/NO TEXT]
Section 7. Foreclosure of Purchase Money Mortgage Loan and
Agency Riaht of First Refusal.
(a) During the Qualified Residence Period the Agency shall
have the right (but not the obligation) to bid on the purchase of
any mortgage loan lien secured by the New Home at the time of any
trustee foreclosure sale or any judicial foreclosure sale.
(b) During the Qualified Residence Period the Agency shall
have the right of first refusal to purchase the New Home from the
Qualified Homebuyer on the same terms which the Qualified Homebuyer
may propose to offer the New Home for resale to a Success-In-
Interest. The Agency must exercise such a right of first refusal
within thirty (30) days following written notification of the
intention of the Qualified Homebuyer to resell the New Home, and if
the Agency accepts the offer in writing within such time period the
Agency shall be bound to complete the purchase of the New Home
strictly in accordance with the offer. Thereafter the Agency shall
pay the "resale price" to the Qualified Homebuyer and close an
escrow for the transfer of the New Home to the Agency within sixty
(60) days following written notification of the intention of the
Qualified Homebuyer to resell the New House.
Section 8. Covenants to Run With the Land. The Developer,
the Agency and the Qualified Homebuyer hereby declare their
specific intent that the covenants, reservations and restrictions
set forth herein are part of a common plan for the development of
affordable single family housing improvements in the State College
Redevelopment proj ect and that each shall be deemed covenants
running with the land and shall pass to and be binding upon the New
Home and each Successor-In-Interest of the Qualified Homebuyer in
the New Home for the term provided in Section 10. The Qualified
Homebuyer hereby expressly assumes the duty and obligation to
perform each of the covenants and to honor each of the reservations
and restrictions set forth in this Section 33334.3 Covenant. Each
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and every contract, deed or other instrument hereafter executed
covering or conveying the New Home or any interest therein shall
conclusively be held to have been executed, delivered and accepted
subject to such covenants, reservations, and restrictions,
regardless of whether such covenants, reservations and restrictions
are set forth in such contract, deed or other instrument.
Section 9. Burden and Benefit. The Developer, the Agency and
the Qualified Homebuyer hereby declare their understanding and
intent that the burden of the covenants set forth herein touch and
concern the land in that the Qualified Homebuyer's legal interest
in the New Home is affected by the affordable single family
dwelling use and occupancy covenants hereunder. The Agency and the
Qualified Homebuyer hereby further declare their understanding and
intent that the benefit of such covenants touch and concern the
land by enhancing and increasing the enjoyment and use of the New
Home by the intended beneficiaries of such covenants, reservations
and restrictions, and by furthering the public purposes for which
moneys from the Low-and Moderate Income Housing Fund of the State
College Redevelopment Project were used and applied by the Agency
in order to make the New Home available for acquisition and
occupancy by the Qualified Homebuyer.
Section 10. Term. This Section 33334.3 Covenant shall apply
to the New Home and the Qualified Homebuyer and to each Successor-
In-Interest as of the Delivery Date for the Qualified Residence
Period -- e.g.: this Section 33334.3 Covenant shall remain in full
force and effect for ten (10) years after the Delivery Date. Any
provision or section hereof, may be terminated after the Delivery
Date upon agreement by the Agency and the Qualified Homebuyer (or
the Successor-In-Interest in the New Home), if there shall have
been provided to the Agency an opinion of special legal counsel
that such a termination under the terms and conditions approved by
the Agency in its reasonable discretion will not adversely affect
the Agency or the investment of Low-and Moderate-Income Housing
Funds of the Agency in the New Home.
Section 11. Breach and Default and Enforcement.
(a) Failure or delay by the Qualified Homebuyer to honor or
perform any material term or provision of this Section 33334.3
Covenant shall constitute a breach under this Agreement; provided
however, that if the Qualified Homebuyer commences to cure, correct
or remedy the alleged breach within thirty (30) calendar days after
the date of written notice specifying such breach and shall
diligently complete such cure, correction or remedy, the Qualified
Homebuyer shall not be deemed to be in default hereunder.
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The Agency shall give the Qualified Homebuyer written notice
of breach specifying the alleged breach which if uncured by the
Qualified Homebuyer wi thin thirty (30) calendar days, shall be
deemed to be an event of default. Delay in giving such notice
shall not constitute a waiver of any breach or event of default nor
shall it change the time of breach or event of default; provided,
however, the Agency shall not exercise any remedy for an event of
default hereunder without first delivering the written notice of
breach as specified in this Section 11.
Except with respect to rights and remedies expressly declared
to be exclusive in this Section 33334.3 Covenant, the rights and
remedies of the Agency are cumulative with any other right or power
of the Agency or the City or other applicable law, and the exercise
of one or more of such rights or remedies shall not preclude the
exercise by the Agency at the same or different times, of any other
right or remedy for the same breach or event of default.
In the event that a breach of the Qualified Homebuyer may
remain incurred for more than thirty (30) calendar days following
written notice, as provided above, an event of default shall be
deemed to have occurred. In addition to the remedial provisions of
Section 4 as related to a Maintenance Deficiency at the New Home,
upon the occurrence of any event of default the Agency shall be
entitled to seek any appropriate remedy or damages by initiating
legal proceedings as follows:
(i) by mandamus or other suit, action or proceeding
at law or in equity, to require the Qualified
Homebuyer to perform its obligations and
covenants hereunder, or enjoin any acts or things
which may be unlawful or in violation of the
rights of the Agency; or
(ii)
by other action
or convenient
covenants and
Homebuyer to the
at law or in
to enforce
agreements
Agency.
equity as necessary
the obligations,
of the Qualified
(b) No third party shall have any right or power to enforce
any provision of this Section 33334.3 Covenant on behalf of the
Agency or to compel the Agency to enforce any provision of this
Section 33334.3 Covenant against the Qualified Homebuyer on the New
Home.
Section 12. Governing Law. This Section 33334.3 Covenant
shall be governed by the laws of the State of California.
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Section 13. Amendment. This Section 33334.3 Covenant may be
amended after the Delivery Date only by a written instrument
executed by the Qualified Homebuyer (or the Successor-In-Interest,
as applicable) and by the Agency. The Developer shall have not any
right or power to approve any such amendment to this Section
33334.3 Covenant, and the execution by the Developer of any such
amendment after the delivery date shall not be required.
Section 14. Attorney's Fees. In the event that the Agency
brings an action to enforce any condition or covenant,
representation or warranty in this Section 33334.3 Covenant or
otherwise arising out of this Section 33334.3 Covenant, the
prevailing party in such action shall be entitled to recover from
the other party reasonable attorneys' fees to be fixed by the court
in which a judgment is entered, as well as the costs of such suit.
Section 15. Severability. If any provision of this Section
33334.3 Covenant shall be declared invalid, inoperative or
unenforceable by a final judgment or decree of a court of competent
jurisdiction such invalidity or unenforceability of such provision
shall not affect the remaining parts of this Section 33334.3
Covenant which are hereby declared by the parties to be severable
from any other part which is found by a court to be invalid or
unenforceable.
Section 16. Time is of the Essence.
this Section 33334.3 Covenant which states
time within which the requirements thereof
time shall be deemed to be of the essence.
For each provision of
a specific amount of
are to be satisfied,
Section 17. Notice. Any notice required to be given under
this Section 33334.3 Covenant shall be given by the Agency or by
the Qualified Homebuyer, as applicable, by personal delivery or by
First Class United States mail at the addresses specified below or
at such other address as may be specified in writing by the parties
hereto:
If to the Agency:
Executive Director
Redevelopment Agency of the
City of San Bernardino
201 North "En Street, Suite 301
San Bernardino, CA 92401
Phone: (909) 384-5081
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If to the
Qualified Homebuyer:
Attn:
Phone:
Notice shall be deemed given five (5) calendar days after the date
of mailing to the party, or, if personally delivered, when received
by the Executive Director of the Agency or the Qualified Homebuyer,
as applicable.
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IN WITNESS WHEREOF, the Developer, the Qualified Homebuyer and
the Agency have caused this Section 33334.3 Covenant to be signed,
acknowledged and attested on their behalf by duly authorized
representatives in counterpart original copies which shall upon
execution by all of the parties be deemed to be one original
document. The recordation of this Section 33334.3 Covenant is
authorized under Health and Safety Code Section 33334.3(g)
QUALIFIED HOMEBUYER
By:
Dated:
By:
DEVELOPER
Century-Crowell Communities, LP
a California limited partnership
Dated:
By:
AGENCY
Redevelopment Agency of the City
of San Bernardino
Dated:
By:
Chair of the Community
Development Commission
By:
Executive Director
[ALL SIGNATURES MUST BE NOTARIZED]
Approved as to Form:
By:
Agency Special Counsel
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EXHIBIT "A"
Legal Description of the New Home
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