Attachment 2
POLICY AND PROCEDURE
Subject: City Council Meeting and
Operating Procedures
(Parliamentary Procedures, Due
Process, Mayor/Mayor Pro
Tempore, Council
Correspondence, Meetings,
Agendas, and Minutes)
Index: City Council
Number: 1201-11
Effective
Date:
May 5, 2026 (supersedes March
19, 2024)
Prepared By: City Clerk
Supersedes: Policy and Procedures 1201- 1
(Mayor and Mayor Pro Tempore);
1201-2 (Meetings of the City
Council); 1201-3 (Order of
Business and Preparation of
Minutes);1201-4 Council
Correspondence and Agenda);
1201-5 (Rules of Debate,
Decorum, Voting Requirements
& Procedures);(1201-2
Management/ Streamlining of
City Council Meetings); and
1201-11 (City Council Meeting
and Operating Procedures)
Approved By: City Council
1.0 PURPOSE:
To establish policies for City Council meetings and operations, including parliamentary procedures, due process, election/roles of Mayor and Mayor Pro Tern, agendas, and the preparation of minutes.
2.0 ORGANIZAT/ONS AFFECTED:
City Council
City Commissions and Committees*
*Note: Except as otherwise noted throughout this Policy, this Policy shall a/so apply to the City's Commissions and Committees. In applying this Policy to City Commissions and Committees, the term "Council" shall be interpreted to mean the name of the City Commission or Committee, the term "Mayor" shall be interpreted to mean "Chairperson", the term "Mayor Pro Tempore shall be interpreted to mean 235
"Vice Chair': the term "Manager" shall be interpreted to mean "Director", and the term "City Clerk" shall be interpreted to mean the staff member responsible for providing support to the Commission/Committee.
3.0 REFERENCES:
The Ralph M. Brown Act, GC Section 54950, et seq.
4.0 POLICY:
4.1 Parliamentary Procedures and Due Process
4.1.1 The proceedings of the City Council shall be guided under the latest revised edition of "Rosenberg's Rules of Order," on all matters pertaining to parliamentary procedure, but no ordinance, resolution, proceeding or other action of the City Council shall be invalidated or the legality thereof otherwise affected by the failure or omission to observe or follow such rules. In the event of a discrepancy between Rosenberg's Rules of Order and this Policy and Procedure, this Policy and Procedure shall prevail.
4.1.2 The Mayor, with assistance from the City Attorney, is designated as the parliamentarian for City Council meetings. The City Clerk shall assist in the City Attorney's absence. Any member of the City Council or the public (pursuant to process below) may raise a point of order and/or seek the City Attorney's input on parliamentary issues, which shall then be considered by the Mayor. The City Council may override any parliamentary decision of the Mayor with a majority vote. The Mayor may interpret and apply but not amend these policies.
Points of order may be raised at any time by City Councilmembers.
Points of order may be raised by members of the public in connection with their opportunity to speak on agenda items pursuant to Section 4.4.6. The Mayor (or chair) shall rule on the point of order and/or request clarification of the law from the City Attorney and then decide and rule. If the point of order is denied by the Mayor or chair, the person making the point of order may seek a vote of the entire Council or body, which decision shall be final.
Members of the public wishing to raise points of order after their opportunity to speak may submit those points of order in writing prior to the adjournment of the meeting. Items so submitted shall be presented for consideration by the City Council in connection with its approval of the minutes of that meeting pursuant to Section 4.6 hereof. At that time the Mayor and City Council will review and decide the point of order raised and determine whether it warrants scheduling and noticing of that item for reconsideration. 236
4.1.3 It shall be understood that a member of the City Council or prospective member of the City Council may, in the course of seeking elective office, be asked to state positions on general issues that may eventually come before the Council at a later date.
This policy shall in no way impair that Councilmember's right to consider the issue and vote as he/she determines is appropriate.
4.1.4 Ex parte communications are communications received outside of Council meetings or hearings. When the Council acts in a legislative role (for example, to adopt general plan or zoning amendments or to adopt ordinances), Councilmembers are
permitted to draw upon nearly all observations and considerations they receive inside and outside the Council meeting. On the other hand, when acting in a quasi-adjudicatory role (hearing permits, revocations, and similar non-legislative decisions), the Council, as fact-finder, should limit its consideration of facts to those presented at the hearing, where all sides have the opportunity to hear and rebut testimony given by all participants. To this end, Councilmembers should avoid receiving or gathering information that might otherwise influence its consideration of the written record and any other testimony it hears through the formal hearing process, or at least disclose their receipt of that information.
4.2 Role of Mayor
4.2.1 The Mayor is a member of the City Council with all rights and authority of a City Councilmember together with the duties and responsibilities specifically identified in this section.
4.2.2 The Mayor shall act as the primary spokesperson and official representative of the City Council, unless such responsibility is delegated by the Mayor, the Mayor is unwilling or unable to act, or the duties are otherwise assigned by a majority of the City Council.
The Mayor Pro Tempore shall act as Mayor in the absence, or the inability or unwillingness of the Mayor or conduct the duties of the Mayor or as assigned by a majority of the City Council.
4.2.3 The Mayor shall preside at all regular, adjourned regular, special and emergency meetings of the City Council, including joint meetings with commissions and committees and closed sessions.
4.2.4 The Mayor shall execute all official City documents, warrants and correspondence approved by the City Council.
4.2.5 The Mayor is authorized to issue proclamations, commendations and certificates of recognition, which may be presented at City Council meetings under Special Presentations. The total time allotted to Special Presentations should, if possible, be limited to 15 minutes per meeting.
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4.2.6 The Mayor is a member of the City Council. The office of Mayor does not possess formal powers or authority in excess of other members of the City Council; rather, the person serving as Mayor is to be recognized as the Chair of the Council.
4.2.7 The Mayor is not a member of staff, should not provide independent direction to staff or maintain a regular office at City Hall and shall comply with the normal policies and procedures in place for all members of the City Council.
4.3 Election Appointment and Role of Mayor and Mayor Pro Tempore and Roles of Those Offices
4.3.1 At the first Regular City Council meeting in December of each year, the Council shall elect appoint from its members a Mayor and Mayor Pro Tempore. The new Mayor and Mayor Pro Tempore shall
assume office immediately. (Note: Commissions and Committees shall elect from its members a Chairperson and Vice Chair at its first regular meeting occurring after Council completes its annual appointment process for Commission and Committee members and those members assume office.) The process for appointing Mayor and the Mayor Pro Tempore and for appointing
Commission and Committee Chairs and Vice-Chairs shall be as follows:
4.3.1.1 The nomination/election appointment of the Mayor Pro Tempore or Chair is conducted by the City Clerk or staff. Once the new Mayor or Chair is elected, that member of the Council or body immediately presides and conducts the vote on Mayor Pro Tempore or ViceChair. shall rotate in the following order beginning in the first regular meeting in December 2026 and each year thereafter:
• December 2026 – District 3
• December 2027 – District 4
• December 2028 – District 1
• December 2029 – District 2
• Continuous sequence with each Mayor Pro Tempore
serving for the period of one year. Under normal
circumstances, each member of the City Council will serve as the Mayor Pro Tempore once during a four-year term of office. Of note, under normal circumstances, a member of the City Council will not serve as the Mayor Pro Tempore during the first two years in office thereby providing an opportunity to become familiar with specific issues facing the City.
4.3.1.2 The method of nomination in this respect is an "open nomination" solely by and from within the membership of the presently-seated City Council or City body. Nomination cannot be accepted from 238
members of the public.
4.3.1.3 No "second" is required for nomination, although sometimes one or more members will "second" a nomination to indicate endorsement.
4.3.1.4 In no event may any one member nominate more persons than there are offices to fill in the respective selection.
4.3.1.5 When it appears that no one else wishes to make a nomination, the chair of the meeting asks one (1) final time if there are additional nominations. If there is a no response, the chair then declares..."the nomination for Mayor or Mayor Pro Tempore, Chair or Vice-Chair as applicable is closed."
4.3.1.6 It is unnecessary to have a motion to officially close the nomination; yet, if such a motion is made, that motion then requires an affirmative 213rd vote of the members present [4 or 5]. After nominations are closed, a majority vote is required to re-open it.
4.3.1.7 Nominees are voted on in the order in which they are nominated.
As soon as one of the nominees receives a majority vote of those members present in the voting, the Mayor or Chair then declares that person elected to that respective office, and no vote is taken on the remaining nominee(s).
4.3.1.8 Rounds of voting shall continue in succession until one nominee is elected.
4.3.2 The Mayor and Mayor Pro Tempore shall serve a one-year term at the pleasure of the Council majority.
4.3.3 The Mayor shall act as the primary spokesperson and official representative of the City Council, unless such responsibility is delegated by the Mayor, the Mayor is unwilling or unable to act, or is otherwise assigned by a majority of the City Council. The Mayor Pro Tempore shall only act as Mayor in the absence, or the inability or unwillingness of the Mayor to conduct the duties of the Mayor or as assigned by a majority of the City Council.
4.3.4 The Mayor shall preside at all regular, adjourned regular, special and emergency meetings of the City Council, including joint meetings with commissions and committees and closed sessions.
4.3.5 The Mayor shall execute all official City documents, warrants and correspondence approved by the City Council.
4.3.6 The Mayor is authorized to issue proclamations, commendations and certificates of recognition, which may be presented at Council meetings under Special Presentations. The total time allotted to Special Presentations should, if possible, be limited to 15 minutes per meeting. (This section does not apply to Commissions or 239
Committees.)
4.3.7 Nothing in this section is intended to suggest that the office of Mayor possesses formal powers or authority in excess of other members of the City Council; rather, the person serving as Mayor is to be recognized as the chairperson of the Council.
4.3.8 The Mayor Pro Tempore shall serve and perform the functions of the Mayor in the absence of the Mayor. If both the Mayor and Mayor Pro Tempore are absent from a City Council meeting, the Council members present shall select a Councilmember from those members present to perform the functions of Mayor at that particular meeting.
4.4 Appointment of Chair and Vice Chair for Commissions and Committees
4.4.1 Commissions and Committees shall appoint from its members a Chair and Vice Chair at its first regular meeting occurring after Council completes its annual appointment process for Commission and Committee members and those members assume office.
4.4.2 The appointment of the Chair is conducted by the City Clerk or staff.
Once the Chair is appointed, the Chair immediately presides and conducts the vote on Vice-Chair.
4.4.3 The method of nomination is an "open nomination" solely by and from within the membership of the presently-seated Commission or Committee. Nominations will not be accepted from members of the public. No "second" is required for nomination, although sometimes one or more members will "second" a nomination to indicate support. In no event may any one member nominate more persons than there are offices to fill in the respective selection.
4.4.4 When it appears that there are no additional nominations, the Chair will ask one (1) final time if there are additional nominations. If there is a no response, the Chair will declare nominations closed. After nominations are closed, a majority vote is required to re-open the nomination process.
4.4.5 Nominees are voted on in the order they are nominated. As soon as one nominee receives a majority vote of the members present and voting, the Chair will announce the person elected to serve as Vice Chair and no vote will be taken on the remaining nominee(s). Voting shall continue as indicated, in succession, until one nominee is elected.
4.5 City Council Correspondence
4.5.1 The City Manager, or his/her designee, is authorized to open and 240
examine all mail or other written communications addressed to the City Council as a body, but shall not open correspondence addressed to an individual Councilmember without their express authorization.
4.5.2 The City Manager may take action, or direct that action be taken, on issues or requests correspondence that does not require Council action. The City Manager shall inform Council when actions are taken on matters of significance or that are likely to be of interest to the City Council.
4.6 City Council Meetings
4.6.1 The date, time and location of Regular Meetings of the City Council shall be established by resolution. At 11:00 p.m. at each meeting, the City Council, by majority vote, will determine whether to continue the meeting or adjourn.
4.6.2 At all meetings of the City Council, a majority of the Council members shall constitute a quorum for the transaction of business.
In the event less than a quorum of the City Council is present, the City Clerk shall adjourn the meeting (which may include adjourning to an Adjourned Regular Meeting), post a Notice of Adjournment, and prepare minutes that reflect that the meeting was adjourned due to lack of a quorum.
4.6.3 The City Clerk, or Mayor, shall announce an agenda item before discussion on that item commences.
4.6.4 Each person desiring to address the Council is requested to submit to the City Clerk a speaker form. After being called upon by the Mayor, the speaker may proceed to the podium. The speaker may state for the record his/her name and city of residence, but shall not be required to do so.
Members of the public may speak for three (3) minutes and project applicants and appellants (including members of an applicant's or appellant's project presentation team, when applicable) may speak for a combined total of ten (10) minutes on agenda items. At Council's request where Council is acting in a fact-finding or hearing capacity, the Mayor may grant additional time (unless overruled by a majority of Councilmembers present) to speakers on agenda items.
Speakers will be called to the podium once Staff concludes its presentation of an item and before Council begins its deliberations.
Speaker cards will not be accepted once deliberations have commenced.
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Speakers on non-agenda items may speak for three (3) minutes during the oral communications - public forum portion of the meeting.
At the beginning of the Consent Calendar, the City Clerk will notify the Mayor or meeting Chair of any public comments related to the Consent Calendar. Speakers will be allotted 3 minutes to speak on the Consent Calendar in its entirety. After public comments, if any, are heard, the City Council will vote on the Consent Calendar as one agenda item.
The time that a speaker devotes to responding to Council inquiries shall not be deducted from their allotted speaker time.
4.6.5 Members of the public may not assign their speaker time to another person.
4.6.6 The purpose of addressing the City Council is to communicate formally with the City Council regarding matters that relate to City Council business or citizen concerns within the subject matter jurisdiction of the City Council. Persons addressing the City Council on an agenda item shall confine their remarks to the matter under consideration by the City Council. Speakers may be asked to clarify how their comments relate to the matter at hand. Speakers may address the entire Council or individual Councilmembers, and, if allowed by the Mayor or chair, City staff.
4.6.7 Once recognized, members of the public shall not be interrupted when speaking unless to be called to order by the Mayor to: (i) curtail extraordinary repetition, (ii) curtail speech that is irrelevant to the City Council's subject matter jurisdiction, (iii) explain how his or her speech relates to the City's subject matter jurisdiction, or (iv) address some other point of order. If a speaker is interrupted to be called to order, the speaker shall cease speaking until the question of order is determined, and if in order, he or she shall be permitted to proceed, with additional time allotted for the time taken to determine the question of order.
4.6.8 In order to avoid repetitious presentations, whenever any group of persons wishes to address the Council with the same message, it shall be proper for the Mayor to request that a spokesperson be chosen by the group to represent the group's position. Speakers shall not, however, be required to abide by such a request.
4.6.9 To expedite Council meetings, Councilmembers are encouraged to contact Staff prior to Council meetings to obtain answers to questions and to obtain clarifications as needed.
4.6.10Staff shall compose Administrative Reports in a clear and concise manner. Staff shall strive to write reports in a manner that can be 242
easily understood by persons that do not have training in the report's subject matter.
4.6.11Staff presentations at Council meetings are to be condensed to the briefest extent possible, while still providing a basic overview of the issue under consideration. Staff is encouraged to refrain from reiterating issues previously addressed in the Administrative Report. However, Staff engaged in such communications shall not use these opportunities to communicate with the members of the City Council the comments or position of any other member of the City Council on City Council business.
4.6.12Members of the public shall not engage in conduct that disrupts, disturbs, or otherwise impedes the orderly conduct of the City Council meeting. Any person who so disrupts the meeting is subject to removal from the meeting.
Prior to removing anyone from a City meeting, the Mayor (or other designated chair) shall: (i) notify the person that he/she is in violation of this Section 4.4.12, (ii) specify the specific behavior giving rise to that conclusion; (iii) explain all grounds for the belief that the person's conduct is in violation of law/policy and why such conduct subjects the person to expulsion; and (iv) notify the person that if the conduct continues he/she will be removed. The person receiving such notification shall be asked if he/she understands the conclusion but shall not be required to accept it.
Members of the public receiving notice of disruption pursuant to this section shall have the right, prior to being removed from the meeting, to ask the Mayor to consult with the City Attorney on the grounds for expulsion, and to submit a point of order on the grounds for expulsion. The City Council may override this decision pursuant to Section 4.1.2. The City Attorney shall have a duty to inform the Mayor (or other designated chair) and the public if the City Attorney believes that the Mayor's action is in violation of applicable law.
4.6.13Motions must be seconded in order to proceed to a vote.
4.7 City Council Agendas
4.7.1 With the exception of items added to a City Council agenda pursuant to Section 4.5.4 of this Policy, the City Manager and Mayor in conference shall be responsible for determining items to appear on City Council meeting agendas.
4.7.2 The standard template for City Council agendas shall be established by Council by majority vote. The City Manager shall have the authority to reorganize the template on a case-by-case basis if he/she believes that a variation in the normal order of business is appropriate.
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4.7.3 Councilmembers may agendize items to enable them to "report out" on matters relating to their own activities, including activities pertinent to their Council-appointed positions on regional commissions, committees and boards, provided the report is informational only. If Council action is being sought, the process defined in Section 4.5.4 of this Policy shall be followed.
4.7.4 Two members of the City Council may propose at a Council meeting that an item be agendized for future Council discussion, consideration, and/or action. Subject to notice and hearing requirements, the item shall be agendized for a future meeting and noticed as required by law. Items agendized pursuant to this section shall appear on an agenda under the New Business portion of the agenda and the names of the Councilmembers who agendized the item shall be included with the item description. Staff Reports will only be prepared if a minimum of three members of the City Council vote affirmatively at a Council meeting to direct Staff to prepare a report.
4.7.5 Notwithstanding Sections 4.5.1 and 4.5.4 of this Policy, the process to review, appeal, or otherwise "call up" decisions by the Planning Commission or other subordinate City bodies shall be subject to the requirements of the San Clemente Municipal Code.
4.7.6 Notwithstanding Section 4.5.4, a proposal to reconsider any action taken by the City Council may be raised only at the same meeting or the next regularly scheduled meeting of the City Council after the action is taken and may be raised only by one of the
Councilmembers who voted with the prevailing side. Additionally, the motion to reconsider may only be made by one of the Councilmembers who voted with the prevailing side.
4.7.7 The City Clerk shall be responsible for the preparation of Council meeting agendas and shall cause copies to be posted on the City Hall bulletin board(s) and City website. Regular and Adjourned Regular Meeting agendas shall be posted within the posting time requirements as set forth in State law. In the case of special meetings, agendas shall be posted as soon as practical, but in no event less than the posting time requirements as set forth in State law.
4.7.8 Consent Calendar items shall be comprised of items that are expected to be noncontroversial. Unless an item is removed from the Consent Calendar by a member of the Council or staff, for separate discussion and action, the Consent Calendar may be acted upon by one motion as one item.
4.7.9 The City Council may waive the reading in full of all Resolutions 244
and Ordinances. The reading of Resolution titles shall be optional.
The reading of Ordinance titles shall not be waived.
4.7.10Members of the public may address Council concerning matters within the jurisdiction of the City of San Clemente, but not separately listed on the agenda, during the Oral Communications portion of the agenda. Speakers may address Council once during either Oral Communications Part 1 or Part 2. Speakers shall be allotted 3 minutes in which to give his or her presentation.
4.8 City Council Minutes
4.8.1 The City Clerk shall have exclusive responsibility for the preparation of the minutes.
4.8.2 The minutes of City Council meetings shall be submitted to Council for approval/modification at a City Council meeting. Any direction for modifications to the City Council minutes shall only be made upon a majority vote of the City Council.
4.8.3 Minutes shall be prepared in brief concise form, in what are commonly referred to as "action minutes". Action minutes memorialize what was done at a meeting, as opposed to what was said at a meeting. An exception to this guideline is that a brief summarization of comments provided to Council by the public are to be included in the minutes. Additionally, the identity of Councilmembers who make motions, second motions, and cast votes on motions are to be included in the minutes.
4.8.4 Unless the reading of the minutes of a City Council meeting is ordered by a majority of the Council, such minutes may be approved without reading if the City Clerk has previously furnished each Councilmember with a copy thereof.
4.8.5 The approved minutes shall be executed by the Mayor and City Clerk upon approval by the City Council and shall constitute the official record of the City Council meeting.
4.8.6 The City Clerk shall enter the original executed minutes into the official records of the City as a permanent document.
4.9 Closed Sessions
4.9.1 The City Council may hold closed sessions during duly-noticed Council meetings on issues authorized by State law.
4.9.2 A City Commission or Committee may hold closed sessions during duly-noticed meetings of its body on issues authorized by State law, the City Council, and the City Attorney.
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4.9.3 No member of the City Council, employee of the City, or any person present during a closed session shall disclose to any other person the content or substance of discussion or action which took place during the session, unless a majority vote of the Council authorizes such disclosure.
4.9.4 Closed sessions shall be limited to members of the City Council, City Manager, City Attorney and/or City legal counsel, as well as staff members and experts designated by the City Manager or City Attorney to attend portions of Closed Sessions relating to specific issues, as permitted by law.
4.9.5 To the extent possible, the public will be notified prior to the time that the City Council recesses to closed session as to whether or not a public announcement of action is anticipated following the Closed Session.
4.9.6 Where potential plaintiffs and defendants have manifested or communicated their awareness of facts and circumstances and a legal theory connecting those facts and circumstances to potential litigation involving the City, those facts and circumstances, together with (i) the identity of potential parties or (ii) related documentation, shall be disclosed prior to a closed session to discuss anticipated litigation, in accordance with GC 54956.9.
4.10 Assignment of a City Councilmember as a Liaison to Each City Commission or Committee
4.10.1The City Council Liaison shall meet with the Chair and support staff of the assigned Commission or Committee to review the proposed agenda to determine consistency with the adopted work plan.
4.10.2Accept requests for City Council or staff support to accomplish tasks included in the adopted work plan.
4.10.3Provide an oral report of the Commission or Committee activities to the City Council during the appropriate agenda item on a regular agenda of the City Council.
4.10.4The City Councilmember liaison is not expected to attend the meetings of the Commission or Committee, but rather act as a resource and conduit for improved communication.
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910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
AGENDA REPORT
CITY OF SAN CLEMENTE
CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: May 5, 2026 Agenda Item: 10A.
Submitted By: Community Development
Prepared By: Adam Atamian, Community Development Director Andy Flores, Community Development Management Analyst
Subject:
..titl e
INFORMATIONAL REPORT AND CONSIDERATION OF A RESOLUTION CONCERNING A REQUEST FOR THE CITY TO FORGIVE LOANS AND DEEDS OF TRUST FOR PROPERTIES LOCATED 133 & 135 W.
CANADA AND 143 W. MARQUITA, OWNED AND OPERATED BY MARY ERICKSON COMMUNITY HOUSING ..body
Summary:
Mary Erickson Community Housing (“MECH”) owns and operates the multi-unit residential properties located at 133 & 135 W. Canada and 143 W. Marquita. The properties were acquired in 1994 and 1996, respectively, and each were supported through a City-issued no-interest, 30- year deferred-payment loan secured by a Deed of Trust (“loan”), consistent with prior City affordable-housing assistance practices. The loan associated with the Canada properties matured on June 28, 2024 and remains due and payable, while the loan associated with the Marquita property is scheduled to mature on November 6, 2026.
In December 2024, MECH submitted a request seeking forgiveness of the outstanding loan balance associated with the Canada properties, which was later expanded to include additional financial assistance for property rehabilitation and to maintain deeper affordability levels. After careful consideration of the request, City staff was unable to justify support for forgiveness of any debt obligations or the provision of direct financial assistance for the rehabilitation of any of the units. At the February 17, 2026 City Council meeting, the City Council requested staff return with an informational report outlining the loan history and relevant considerations.
This report provides an overview of the subject loan obligations, summarizes MECH’s request, and evaluates key fiscal, legal, and policy considerations, including the implications of loan forgiveness, potential precedent, and the continued applicability of existing affordability covenants. Based on this analysis, staff requests City Council direction on this matter, including whether to adopt a Resolution to formally deny the request for loan forgiveness and direct repayment of the outstanding loan balance, and interest, in accordance with the terms of the loan agreements.
Background:
Mary Erickson Community Housing (“MECH”) is a nonprofit organization dedicated to providing affordable housing opportunities within the City. MECH owns and operates the residential properties located at 133 & 135 W. Canada, acquired on June 28, 1994, and 143 W. Marquita, acquired on November 6, 1996. Consistent with past City affordable housing practices, the City 259
Meeting Date: May 5, 2026 Agenda Item: 10A.
CITY OF SAN CLEMENTE 2
issued no-interest, 30-year housing loans to support properties meeting established affordable housing program criteria. The subject properties qualified under those program requirements.
In December 2024, MECH submitted a formal request seeking forgiveness of the outstanding loan balances associated with the subject properties. At the February 17, 2026 City Council meeting, the City Council requested that staff prepare a report providing background information regarding the outstanding City-issued housing loans and MECH’s loan forgiveness request. This informational report is provided in response to that request and summarizes the loan history, current status, and relevant policy considerations.
Prior Loan Forgiveness Actions
In the past, the City has forgiven housing-related loans under specific programmatic and contractual circumstances. Historically, loan forgiveness occurred primarily in association with a former Redevelopment Agency (RDA) program that provided assistance to low-income homeowners, including mobile home rehabilitation assistance. Following the dissolution of redevelopment agencies statewide in 2011, the City became the Successor Agency. Prior to the dissolution of the Successor Agency on April 1, 2025, or subsequently, the City has not approved forgiveness of any remaining mobile home-rehabilitation loans that were not originally structured as a forgivable loan.
The City previously forgave a loan balance of approximately $34,000 related to the acquisition of the Gilchrist House, a transitional housing facility serving vulnerable populations and owned and operated by Family Assistance Ministries. That forgiveness was executed pursuant to an existing Affordable Housing Agreement between the City and Family Assistance Ministries. The original Agreement provided approximately $800,000 in combined funding sources, including Redevelopment Agency funds, Community Development Block Grant (CDBG) funds, and City funds. From the beginning, the City’s loan component for that project was structured as forgivable in accordance with the terms of the Agreement.
While prior loan forgiveness actions have occurred, they were undertaken under distinct program structures, funding sources, and contractual terms. The City Council may wish to consider whether the circumstances associated with the MECH request are comparable to prior actions or represent a materially different policy decision.
Discussion:
The properties located at 133 & 135 W. Canada consist of eight residential units, with one fourunit building at each address. The property located at 143 W. Marquita consists of a four-unit residential building.
Consistent with past City affordable housing practices, the City issued no-interest, 30-year housing loans to support qualifying affordable housing properties. The loans were evidenced by promissory notes and secured by Deeds of Trust recorded against the properties. The Deed of Trust associated with 133 & 135 W. Canada matured on June 28, 2024, with an outstanding balance of $100,000. The loan documents (Attachment 2) also include terms specifying that interest is due upon failure to make a payment within 10 days of the payment date. Since this loan required one payment due on June 28, 2024, interest of 260
Meeting Date: May 5, 2026 Agenda Item: 10A.
CITY OF SAN CLEMENTE 3
$18,303 has accrued as of May 5, 2026. As such, the obligation is currently due and payable to the City.
The Deed of Trust associated with 143 W. Marquita matures on November 6, 2026, with an outstanding balance of $145,000. The loan documents for this property are provided as Attachment 3.
The request for forgiveness would eliminate a valid and enforceable repayment obligation owed to the City and would constitute a discretionary policy decision by the City Council. Each property is also subject to an affordability covenant with the County of Orange. The County covenant for the Canada properties remains in effect until June 2034, and the covenant for the Marquita property remains in effect until 2051.
The initial request for City assistance from MECH was received on December 13, 2024, and sought forgiveness of the $100,000 Canada loan that matured in June 2024. Following subsequent meetings with MECH representatives, the request expanded to include:
Grant assistance for rehabilitation of the Marquita property Financial assistance to maintain deeper affordability levels at the Canada properties (50% AMI)
To remain consistent with the County covenant period and maintain affordability of the Canada units at 50% AMI, MECH identified an annual affordability gap of $35,280, representing the difference between 50% AMI and 60% AMI rents for six of the eight units. With approximately nine years remaining on the County covenant, MECH estimated that maintaining 50% AMI affordability would require a City commitment of approximately $317,520 over that period.
Additional MECH Properties Within the City
It is important to note that Mary Erickson Community Housing (“MECH”) owns and operates additional residential properties within the City of San Clemente that are not part of the current loan forgiveness request. However, these properties are subject to separate loan agreements with the City and represent additional long-term financial relationships.
The following properties are currently under active loan agreements:
Address 150 & 152 W. Escalones
Interest Rate 0%
Maturity Date August 31, 2054
Loan Balance $608,000
Address 1052 Del Cerro
Interest Rate 3% (simple interest)
Maturity Date June 7, 2065
Loan Balance $62,636
Address 1064 Del Cerro
Interest Rate 3% (simple interest)
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Meeting Date: May 5, 2026 Agenda Item: 10A.
CITY OF SAN CLEMENTE 4
Maturity Date June 7, 2065
Loan Balance $60,968
Address 1042 Del Cerro
Interest Rate 3% (simple interest)
Maturity Date June 7, 2065
Loan Balance $65,586
Address 1050 Del Cerro
Interest Rate 3% (simple interest)
Maturity Date June 7, 2065
Loan Balance $65,771
Although these loans are not part of the current request, they reflect the City’s broader affordable housing investment portfolio with MECH and may be relevant to Council’s consideration of longterm financial exposure, precedent, and policy consistency.
Considerations Identified by Staff:
Staff met with representatives of Mary Erickson Community Housing (“MECH”) to better understand the organization’s request and operational challenges. Staff communicated the request to City Management for review. After careful consideration, City staff was unable to justify support for forgiveness of any debt obligations or the provision of direct financial assistance for the rehabilitation of any of the units, and could not administratively waive repayment of the outstanding loans without City Council direction and formal action. This determination was communicated to MECH, along with information regarding potential alternative funding resources or assistance programs that MECH may explore to address property maintenance and operational needs.
Any loan forgiveness would require City Council approval and would result in the City foregoing approximately $245,000 in anticipated revenue, and $18,303 of interest due to nonpayment of the 133 & 135 W. Canada loan. The City’s assistance was structured as a loan, rather than a grant, and included a clear expectation of repayment upon maturity. Forgiveness would therefore represent a deviation from the original financial structure and program intent.
Such action may be characterized as a gift of public funds under Article XVI, Section 6 of the California Constitution unless the City Council makes findings that the action serves a clear and substantial public purpose. The City Council should carefully evaluate whether the proposed forgiveness provides a commensurate, future public benefit relative to the fiscal impact. In addition, granting loan forgiveness in this instance may establish a precedent for other affordable housing providers with outstanding City loans to request similar treatment, potentially increasing the City’s long-term financial exposure.
Staff also notes that these properties remain subject to County affordability covenants independent of the City’s loan, and therefore, affordability obligations would continue regardless of whether the City loan is forgiven. While MECH has identified a desire to maintain deeper affordability levels at certain units, the existing covenants already ensure continued affordability at prescribed levels for extended periods.
262
Meeting Date: May 5, 2026 Agenda Item: 10A.
CITY OF SAN CLEMENTE 5
The preservation of affordable housing and deeper affordability levels is a recognized policy objective and is consistent with the City’s Housing Element goals. Specifically, Housing Element Section 4.03 – Partnership Resources, identifies affordable housing preservation and partnership opportunities as key strategies to extend housing opportunities and maximize community benefit.
Additionally, the intent to preserve and maintain affordable housing inventory is incorporated within Programs 16 and 17 of the Housing Element, which emphasize the importance of supporting existing affordable housing resources and preventing the loss of affordability over time. The City Council may wish to consider whether alternative mechanisms such as loan restructuring, extension of repayment terms, or targeted assistance could achieve similar outcomes without eliminating the City’s secured financial interest. Such alternative mechanisms would also require a finding by the City Council of a clear and substantial public purpose based on forwarding looking considerations in order to avoid gift of public funds concerns.
Council Options:
Adopt Resolution No. 26-82 denying the request for forgiveness of the outstanding housing loans associated with the properties located at 133 & 135 W. Canada and 143 W. Marquita, and directing the borrower to satisfy the outstanding loan obligations in accordance with the terms of the loan agreements.
Modify and adopt Resolution 26-82.
Continue the item with the direction to staff to provide additional information, which could include direction to return to the City Council with a resolution to forgive the subject loans based on specific findings of commensurate, future public benefit. Do not approve Resolution 26-82. This action would not authorize loan forgiveness or modify loan terms, and the subject properties would remain obligated to the terms of the deferredpayment loans secured by Deeds of Trust, and outstanding loan obligations would remain due and payable.
Environmental Review/Analysis:
This item is not a project under the California Environmental Quality Act (CEQA) pursuant to Section 15378 of the CEQA Guidelines, as it involves informational and administrative activities that will not result in a direct or reasonably foreseeable physical change in the environment.
Fiscal Impact:
As a past practice, the City issued no-interest housing loans to support the acquisition, rehabilitation, and preservation of properties meeting established affordable housing criteria. The subject properties were among those that qualified under those program requirements. The City currently holds an outstanding no-interest loan balance of $100,000 for 133 & 135 W. Canada, which is currently past due, and an outstanding no-interest loan balance of $145,000 for 143 W.
Marquita. Forgiveness of these loan balances, if approved by the City Council at a future date, would eliminate approximately $245,000 in anticipated program income (revenue) to the City, with an additional $18,303 of interest due to nonpayment of the 133 & 135 W. Canada loan, and remove a secured financial asset from the City’s portfolio. 263
Meeting Date: May 5, 2026 Agenda Item: 10A.
CITY OF SAN CLEMENTE 6
Recommended Actions:
Staff Recommendation ..recommendation
STAFF RECOMMENDS that the City Council adopt Resolution No. 26-82, which would deny the request for forgiveness of the outstanding deferred-payment loans secured by Deeds of Trust associated with the properties located at 133 & 135 W. Canada and 143 W. Marquita, and direct the borrower to satisfy the outstanding loan obligations in accordance with the terms of the loan agreements. If the City had to foreclose on these Deeds of Trust, interest and attorney fees would be available under the terms of the loan agreements. ..end
Attachment:
1. Proposed Resolution 26-82
2. Owner Participation Agreement for 133 & 135 W. Canada, including loan documents.
3. Owner Participation Agreement for 143 W. Marquita, including loan documents.
Notification:
Mary Erickson Community Housing
264
Attachment 1
RESOLUTION NO. 26-82
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SAN CLEMENTE, CALIFORNIA, RECEIVING AND
CONSIDERING THE INFORMATIONAL REPORT
REGARDING LOAN FORGIVENESS OF THE
OUTSTANDING NO-INTEREST HOUSING LOANS
ASSOCIATED WITH PROPERTIES LOCATED AT 133 & 135
W. CANADA AND 143 W. MARQUITA OWNED AND
OPERATED BY MARY ERICKSON COMMUNITY HOUSING
WHEREAS, Mary Erickson Community Housing (“MECH”) owns and operates the affordable housing units located at 133 & 135 W. Canada and 143 W. Marquita within the City of San Clemente; and
WHEREAS, the properties located at 133 & 135 W. Canada were acquired on June 28, 1994 and consist of eight residential units, and the property located at 143 W.
Marquita was acquired on November 6, 1996 and consists of four residential units; and WHEREAS, the City previously issued no-interest, 30-year deferred-payment loans secured by Deeds of Trust in the original principal amounts of $100,000 for the Canada properties and $145,000 for the Marquita property; and WHEREAS, the loan associated with 133 & 135 W. Canada matured on June 28, 2024 and remains outstanding in the amount of $100,000, with interest of $18,303 accrued, due to nonpayment, as of May 5, 2026 and continuing to accrue at a rate of ten percent (10%) per annum, and the loan associated with 143 W. Marquita matures on November 6, 2026 and remains outstanding in the amount of $145,000; and WHEREAS, each property is subject to affordability covenants with the County of Orange, with the Canada covenant remaining in effect until June 2034 and the Marquita covenant remaining in effect until 2051; and
WHEREAS, on December 13, 2024, MECH submitted a request seeking forgiveness of the matured loan associated with the Canada properties, and subsequently discussed additional potential financial assistance related to rehabilitation and affordability preservation; and
WHEREAS, MECH identified an estimated annual affordability gap of $35,280 to maintain six units at 50% Area Median Income (AMI) rather than 60% AMI, which over approximately nine remaining years of the County covenant would total approximately $317,520; and
265
Resolution No. 26-82 Page 2
WHEREAS, the City Council directed staff at its February 17, 2026 meeting to return with an informational report outlining the loan history, financial considerations, and policy implications; and
WHEREAS, loan forgiveness would result in the City foregoing approximately $245,000 in anticipated program income and may require consideration of public purpose and fiscal stewardship obligations; and
WHEREAS, the affordable housing operated by MECH is consistent with the City’s Housing Element, including Section 4.03 (Partnership Resources), Program 16 (Preservation of Existing Affordable Housing), and Program 17 (Support of Affordable Housing Resources); and
WHEREAS, the City has only previously forgiven housing-related loans under distinct redevelopment or original contractual circumstances, including certain lowincome homeowner rehabilitation loans and a loan associated with the acquisition of transitional housing facility.
NOW THEREFORE, the City Council of the City of San Clemente, California, does hereby find, determine, and resolve as follows:
SECTION 1. That the foregoing recitations are true, correct, and incorporated fully herein.
SECTION 2. The City Council hereby receives and considers the informational staff report regarding the outstanding housing loans associated with the properties located at 133 & 135 W. Canada and 143 W. Marquita, and any public comment related thereto, and denies the request for forgiveness of the deferred-payment loans secured by Deeds of Trust recorded against these properties.
SECTION 3. The City Council further directs that repayment of the outstanding loan balances, including interest owed, shall be required in accordance with the terms of the applicable loan agreements, and authorizes and directs staff to take such administrative actions as necessary to implement this direction.
SECTION 4. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions. [Continued on next page]
266
Resolution No. 26-82 Page 3
PASSED AND ADOPTED this ______ day of __________, 2026.
ATTEST:
___________________________
City Clerk of the City of
San Clemente, California
_________________________
Rick Loeffler, Mayor of the City of
San Clemente, California
267
Resolution No. 26-82 Page 4
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §
CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 26-82 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of _______________________, _________, by the following vote:
AYES:
NOES:
ABSENT:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of _________________, ________. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
___________________________
Elizabeth A. Mitchell, City Attorney
268
OWNER PARTICIPATION AGREEMENT
by and between
SAN CLEMENTE REDEVELOPMENT AGENCY
a Public Body, Corporate and Politic
and
MARY ERICKSON FOUNDATION
a Non-Profit Public Benefit Corporation
fS2\ 178\062266-022(1\2(192847 .2 OS/I 9i94
Attachment 2
269
I.
II.
III.
IV.
TABLE OF CONTENTS
(§100) PURPOSE OF THE AGREEMENT .
A. (§101) Purpose of the Agreement
(§200) DEFINITIONS
(§300) ACQUISITION OF THE SITE AND FINANCING OF THE
PROJECT
A. (§301) Acquisition of the Site
B. (§302) Financing.
1. Mariner's Bank Financing .
2. County of Orange Financing
3. Agency Financial Assistance
C. ( §303) Subordination
D. (§304) Participant's Evidence of Financial
Capability
E. ( §3 05) Relocation
(§400) DEVELOPMENT OF THE PROJECT
A. (§401) Scope of Development
B. ( §402) Final Building Plans
C. (§403) Other City and Governmental Agency
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
0. P.
Q.
(§404)
(§405)
( §406)
(§407)
(§408)
(§409)
(§410)
(§411)
(§412)
Permits and Laws
Construction Contract .
Cost of Development .
Schedule of Performance; Progress
Reports.
Easements
Anti-discrimination During Construction
Bodily Injury, Property Damage, and
Workers' Compensation Insurance .
Indemnification for Construction
Activities
Rights of Access
Prohibition Against Assignment and
Transfer
(§413) Taxes, Assessments, Encumbrances, and
Liens
(§414) Security Financing; Right of Holders
1. Permitted Encumbrances .
2. Holder Not Obligated to Construct
Improvements .
3. Notice of Default to Mortgage, Deed of
Trust or Other Security Interest Holders;
Right to Cure
4. Right of Agency to Cure Mortgage, Deed of
Trust, or Other Security Interest Default
(§415) Right of Agency to Satisfy Liens
(§416) Estoppels .
(§417) Certificate of Completion .
l-'S21 l 78\(162266-0220\2092847. 2 05/19/94
1 1
1 5
5 5
5 6
6 9
10 11
12 12
12 13
13 14
14 15
15 15
17 18
18 21
21 21
22 22
23 24
25 25
270
V.
VI.
VII.
(§500) USES OF THE SITE
A. (§501) Use of the Site
B.
C.
D.
E.
F.
G.
1. General
2. Affordable Housing
3. Annual Reports
4. Insurance
5. Repair of Damage
(§502) Maintenance of the Site
(§503) Property Management Fee
(§504) Obligation to Refrain from
(§505)
(§506)
(§507)
Discrimination
Form of Nondiscrimination and
Nonsegregation Clauses
Effect of Covenants
Agreement Containing Covenants
Affecting Real Property
(§600) DEFAULTS, REMEDIES, AND TERMINATION
A. (§601) Defaults--General
B. (§602) Legal Actions
1. Institution of Legal Actions
2. Applicable Law
3. Acceptance of Service of Process.
C. (§603) Liquidated Damages
D. (§604) Rights and Remedies are Cumulative
E. (§605) Attorney's Fees
F. (§606) Indemnification
(§700) GENERAL PROVISIONS
A. (§701) Notices, Demands, and Communications
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
(§702)
(§703)
(§704)
(§705)
(§706)
(§707)
(§708)
(§709)
(§710)
( §711)
(§712)
Between the Parties
Nonliability of City and Agency
Officials and Employees; Conflicts
of Interest
Enforced Delay; Extension of Times of
Performance
Inspection of Books and Records
Interpretation
Entire Agreement, Waivers and
Amendments
Consent; Reasonableness
Severability
Third Party Beneficiaries
Authority of Signators to Bind
Principals
Representations and Warranties
Execution
FS211781062266-0220\2092847.2 05/ 19/94 -ii27
27 27
27 29
29 33
35 37
38 38
40 40
41 41
42 42
42 42
42 44
44 45
46 46
46 47
48 48
48 49
49 50
50 so
51 271
ATTACHMENTS
l Legal Description and Depiction of the Site
2 Schedule of Performance
3 Scope of Work
4 Certificate of Completion
5 Agreement Containing Covenants Affecting Real Property 6 Purchase Agreement
7 Promissory Note
8 Deed of Trust
9 Assignment of Leases, Rents, Profits and Contracts
l'S211 78\ll62266-U22tl\20921'47. 1 IJ5i 19194 -iii- 272
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT (the "Agreement") is made and entered into by and between the SAN CLEMENTE REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and the MARY ERICKSON FOUNDATION, a non-profit public benefit corporation ("Participant") .
I. (§100) PURPOSE OF THE AGREEMENT
A. (§101)
This Agreement
Purpose of the Agreement.
and the Attachments hereto are intended to
effectuate the California Community Redevelopment Law (Health and Safety Code §33000, et �-
l by providing for the redevelopment of
certain real property located in the City of San Clemente designated herein as the "Site." The redevelopment of the Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City of San Clemente ("City") and the welfare of its residents, and in accordance with the public purposes and provisions of applicable federal, state, and local laws and requirements.
II. (§200) DEFINITIONS
The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary:
The term "Agency" shall mean the San Clemente Redevelopment Agency, a public body, corporate and politic, having its offices at 100 Avenida Presidio, San Clemente, California 92672. The term "Agency" as used herein also includes any assignee of, or successor FS2\l 78\062266-ll220\2092847. 2 05/19/94 -1- 273
274
The term "Deed of Trust" shall mean that certain second deed of trust in the form attached hereto as Attachment No. 8 which partially secures Participant's obligations pursuant to the Note.
The term "Effective Date" shall mean the date this Agreement is approved by Agency at a public meeting.
The term "Home Program" shall mean HUD' s Home Investment Partnerships Program (42 U.S.C. §12741 et .filill.) to assist in the provision of affordable housing and the regulations to aid in its implementation (24 C.F.R. §92 et .£.Sill.).
The term "HUD" shall mean the United States Department of Housing and Urban Development.
The term "Note" shall mean that certain promissory note in the form attached hereto as Attachment No. 7 whereby Participant agrees to repay to Agency the Agency Loan.
The term "Participant" shall mean the Mary Erickson
Foundation, a non-profit public benefit corporation organized and existing under Section 501(c) (3) of the Internal Revenue Code. The term "Participant" includes any legally permissible assignee or successor
Participant
Agreement.
to the rights, powers,
hereunder, in accordance
and
with
responsibilities of
Section 412 of this
Prior to the Effective Date of this Agreement, Participant has entered into the Purchase Agreement to purchase the fee interest in the Site, and Participant qualifies as an "Owner Participant" within the meaning of the California Community Redevelopment Law (Health and Safety Code Section 33000, et�.).
The term "Project" shall mean the rehabilitation and
redevelopment of an eight ( 8) unit affordable rental housing FS2\178\062266-0220\2092847 .2 05/19/94 -3- 275
project and related interior and exterior improvements on the Site, designed and constructed in a manner so as to be architecturally compatible with the existing neighborhood as well as functionally efficient in the areas of access, parking, and security. The Project's units and occupancy shall be restricted in accordance with the terms of the Agreement Containing Covenants Affecting Real Property.
The term "Project Area" shall mean the San Clemente
Redevelopment Project Area No. 1. The exact boundaries of the Project Area are specifically described in the Redevelopment Plan and are made a part hereof as though fully set forth herein.
The term "Purchase Agreement" shall mean that certain
purchase-sale agreement dated February 3, 1994, entered into by and between Participant and Robert and Dolores Derr for the transfer of the fee ownership interest in the Site to Participant, a copy of which is attached hereto as Attachment No. 6 and incorporated herein by this reference.
The term "Redevelopment Plan" shall mean the Redevelopment Plan for the San Clemente Redevelopment Project Area No. 1 which was adopted by Ordinance No. 1004 of the City Council of the City of San Clemente on June 18, 1975. The Redevelopment Plan is incorporated herein by this reference and made a part hereof as though fully set forth herein.
The term "Schedule of Performance" shall mean that certain Schedule of Performance attached hereto as Attachment No. 2.
The term "Site" shall mean that certain real property located at 133-135 West Canada, City of San Clemente, County of Orange, California, near the Project Area. The Site is described and FS2\I 78\062266-0220\2092847 .2 05/ 19/94 -4- 276
depicted in the site map and legal description attached hereto as Attachment No. 1.
III. (§300) ACQUISITION OF THE SITE AND FINANCING OF THE
PROJECT
A. (§301) Acquisition of the Site.
The Purchase Agreement provides that the purchase price for the Site shall be Five Hundred Ninety Thousand Dollars ($590,000) and that escrow shall close on or before June 20, 1994.
Participant hereby agrees to comply with each and every condition, responsibility, and obligation it may have pursuant to the Purchase Agreement in order to accomplish the close of escrow at or prior to the time specified therein. Participant shall not amend or modify the Purchase Agreement in any respect inconsistent with the provisions of this Agreement without the prior written consent of City and Agency, which consent City and Agency may withhold in their sole and absolute discretion.
B. (§302) Financing.
As set forth in this Section 302, Participant is obtaining funding from Mariner's Bank, the County of Orange, and Agency for the acquisition of the Site and the development of the Project thereon, and expenses related thereto.
1. Mariner's Bank Financing.
Participant hereby represents to Agency that Participant has obtained a financing commitment from Mariner's Bank for a loan of Two Hundred Fifty Thousand Dollars ($250,000) to be secured by a first deed of trust to be recorded against the Site, and subject to normal commercial loan requirements and obligations. The loan from FS2\l 78\062266-0220\2092847 .2 05/19/94 -5-
277
Mariner's Bank is to be applied exclusively to the purchase price for the Site.
2. County of Oranqe Financing.
Participant hereby represents to Agency that the County of Orange has committed to providing two grants to Participant for acquisition of the Site and development of the Project thereon.
The first grant is in the amount of Two Hundred Forty Thousand Dollars ($240,000) and shall be applied in its entirety towards the purchase price for the Site. The second grant is in the amount of Eighty-Five Thousand Dollars ($85,000) and shall be applied towards any relocation costs for the Site and the Project and the costs of rehabilitation and redevelopment of the Project on the Site. The source of the County of Orange grants is funds the County has received from HUD pursuant to the Home Program. The County of Orange will require Participant to enter into a regulatory agreement (the "Regulatory Agreement") implementing the requirements of the Home Program.
3. Agency Financial Assistance.
In order to assist in the development of affordable rental housing within the City, Agency shall provide Participant with financial assistance in the total amount of Two Hundred Twenty-Five Thousand Dollars ($225,000) (the "Agency Financial Assistance") .
Agency shall provide Participant with a loan towards the acquisition of the Site and the payment of escrow closing costs in the amount of a One Hundred Thousand Dollar ($100,000) portion of the Agency Financial Assistance (the "Agency Loan"). Agency shall grant Participant a One Hundred Twenty-Five Thousand Dollar ($125,000) portion of the Agency Financial Assistance to be applied l;S2\ l 78\ll62266-ll22U\2092847 .2 05/ 19/94 -6- 278
towards any relocation costs for the Site and the Project and the costs of rehabilitation and redevelopment of the Project on the Site. As a condition to the provision of the Agency Financial Assistance, Participant agrees that neither it nor any affiliated entity or person shall be entitled to any broker's commission or finder's fee, development fee, construction management fee, reimbursement for overhead, or similar fee or charge, by whatever name called, for the acquisition of the Site or the development of the Project thereon.
a. Agency Loan.
The Agency Loan shall be deposited into the purchase escrow for the Site created pursuant to the Purchase Agreement.
Notwithstanding any other provision of this Agreement to the contrary, Agency shall have no obligation to loan to Participant the Agency Loan unless all of the following conditions are satisfied or Agency waives such conditions in its sole and absolute discretion:
( i) Participant shall have obtained the Agency
Executive Director's approval of Participant's
evidence of financial capability to acquire the
Site and develop the Project as provided in Section
304 herein;
(ii) Agency shall have obtained satisfactory assurances from the Escrow Agent that the escrow agent will
deliver the original Note to Agency upon the close
of escrow and that the documents to be recorded
through escrow will be recorded in the following
orders and with the following priorities: (A) the
FS2\17 8\062266-0220\2092847 .2 05/19/94 -7- 279
(iii)
grant deed conveying the Site to Participant; (B)
the Regulatory Agreement; (C) the Agreement
Containing Covenants Affecting Real Property; (D)
the first deed of trust securing Participant's loan
from Mariner's Bank; (E) the Deed of Trust
partially securing the Note; and (F) the Assignment
partially securing the Note;
Gateway Title Company, or such other title company
as may be approved by the Exe cu ti ve Director of
Agency, shall be irrevocably committed to issuing
to Agency a standard ALTA lender's policy of title
insurance insuring the priority of the Agreement
Containing Covenants Affecting Real Property, the
Deed of Trust, and the Assignment as set forth in
clause (ii), with coverage in the principal amount
of the Note and Participant obligated to pay the
premium for the title insurance policy and ensuring
that title to the Site is in the condition set
forth in that preliminary title report dated
February 17, 1994, issued by Gateway Title Company,
with the removal of all monetary liens and monetary
exceptions to title; and
(iv) Participant shall not be in material default of any of its obligations set forth in this Agreement.
b. Agency Grant.
Agency, in cooperation with the County and Participant, shall determine what portion of the Agency Grant is to be applied towards the costs of relocation and what portion is to be applied towards FS2117 81062266-022012092847. 2 05/19/94 -8- 280
the costs of rehabilitation and redevelopment of the Project on the Site. No Agency Grant funds shall be disbursed until after the close of escrow for the Site and unless the Agency Loan is made in compliance with the requirements of Section 302.3(a). The Agency Grant funds shall be disbursed in accordance with the provisions of this Section 302.3(b).
Participant shall submit to Agency verified copies of
contracts, invoices, and other documents as may be demanded by Agency confirming the need to expend the Agency Grant funds.
Participant shall, in writing, request Agency to make payments to Participant from the Agency Grant funds. No payments shall be made by Agency unless and until Agency receives confirmation that the work for which payment is due has been performed in accordance with the contractor's or vendor's contract or verifiable evidence of payments or costs incurred for relocation.
C. (§303) Subordination.
Agency agrees to subordinate its Deed of Trust and Assignment, each partially securing Participant's obligations pursuant to the Note, to the Mariner's Bank financing to be obtained by Participant to acquire the Site and develop the Project thereon in an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000), as well as any refinancing of said amount which does not result in an increase in the principal amount owing over the principal balance due at the time of the refinancing.
FS2\l 78\ll62266-022ll\2092847 .2 (15/19/94 -9- 281
D. (§304) Participant's Evidence of Financial Capability.
Within the time set forth in the Schedule of Performance, Participant shall submit to Agency's Executive Director evidence reasonably satisfactory to the Executive Director that Participant has the financial capability necessary for the acquisition of the Site and the development of the Project thereon pursuant to this Agreement. Such evidence of financial capability shall include the following:
(i)
(ii)
(iii)
reliable cost estimates for Participant's total
cost of acquiring the Site and developing the
Project thereon (including both "hard" and "soft"
costs) (the "Project Budget");
a complete executed copy of the Mariner's Bank loan
to be obtained by Participant to assist in
financing the acquisition of the Site and
development of the Project thereon; and
a financial statement and/or other documentation
reasonably satisfactory to the Executive Director
sufficient to demonstrate that Participant has
adequate funds available and committed to cover the
difference, if any, between the Project Budget and
the proceeds of the total of (A) the Mariner's Bank
loan, (B) the two (2) Home Program grants from the
County of Orange, (C) and the Agency Financial
Assistance (Section 302)
The Executive Director shall complete his or her review of and approve or disapprove Participant's evidence of financial capability within the time set forth in the Schedule of FS2\l 78\062266-0220\2092847 .2 05/19/94 -10- 282
Performance. If the Executive Director shall disapprove such evidence of financing, he or she shall do so by written notice to Participant stating the reasons for such disapproval. In such event, Participant shall promptly resubmit its evidence of financial capability not less than thirty (30) days after receipt of the Executive Director's disapproval, the Executive Director shall reconsider such resubmittal within the same number of days allowed for the initial submittal, and the deadlines in the Schedule of Performance shall be extended accordingly.
E. (§305) Relocation.
Agency and Participant acknowledge that there is currently an occupied eight ( 8) unit two (2) building residential complex located on the Site. Participant shall have the sole and exclusive responsibility for providing relocation assistance and paying all relocation costs required to comply with all applicable federal and state laws, rules, and regulations.
in this Agreement, including the
Notwithstanding any other term
provisions of Section 3 02. 3
providing for the application of a certain portion of the Agency Grant towards costs of relocation, neither Agency nor City shall be responsible for relocating any occupants from the Site.
Participant shall indemnify, defend, and hold Agency and City harmless from and against any claims, liabilities, damages, or losses made against either of them by tenants or occupants of the Site, including without limitation claims for relocation assistance, inverse condemnation, and claims otherwise arising from any act or omission of Participant pursuant to this Section 305.
FS2117 8\U62266-U22ll\2U92847 ,2 05119194 -11- 283
IV. (§400) DEVELOPMENT OF THE PROJECT
A. (§401) Scope of Development.
The Project shall consist of the redevelopment of an existing eight (8) unit, two (2) building residential rental complex and related interior and exterior improvements. The precise nature of the redevelopment of the complex to be undertaken is set forth in the Scope of Work attached hereto as Attachment No. 3 and incorporated herein by this reference. Participant shall develop the Project in strict conformity with the permits and approvals referenced in Section 402 of this Agreement. If Participant desires to make any change in any previously approved development or building plans, Participant shall submit the proposed change to the appropriate body for approval. Participant shall be responsible for all construction and installation and for obtaining all the necessary permits.
B. ( §402) Final Building Plans.
Within the time set forth in the Schedule of Performance, Participant shall submit and pay the applicable fees to City for City's review and approval of a complete set of final building plans for development of the Project. The final building plans where required shall be consistent with the Scope of Work and shall be prepared by a licensed contractor/professional. The final building plans shall contain all information required to obtain all necessary building permits required for the Project. Participant shall exercise its reasonable diligence to expeditiously obtain the City's approval of said final building plans. If the final building plans are acceptable to Agency and meet applicable code requirements, Agency shall provide reasonable assistance to PS2\l781062266-022012092847 .2 05/19/94 -12- 284
Participant, at no expense to Agency, in obtaining City's approval; provided, however, that Agency does not warrant or represent that the City's approval shall be forthcoming. In the event City requires modifications or changes to the final building plans in order to comply with applicable code requirements, Participant shall make the necessary changes and resubmit to City within a reasonable time, not to exceed thirty (30) days.
C. (§403) Other City and Governmental Agency Permits and Laws.
Before commencement of construction of the Project, Participant, at its own expense, shall secure or cause to be secured any and all permits which may be required by City or any other governmental agency having jurisdiction over the Site and the Project.
Participant shall carry out the development of the Project in conformity with all applicable laws, regulations, and rules of the governmental agencies having jurisdiction over the Project and the Site, including City and Agency.
D. (§404) Construction Contract.
Within forty-five (45) days of Participant's acquisition of title to the Site Participant shall provide Agency with a copy of the contract between Participant and its general contractor for all of the improvements and rehabilitation required to be constructed by Participant hereunder, certified by Participant to be a true and correct copy thereof in order that Agency's Executive Director may reasonably determine that the work required thereunder complies with the requirements of the Scope of Work. If Agency's Executive Director determines that the requirements of the contract do not reasonably comply with the Scope of Work, Participant shall revise FS2\l 781062266-022012092847.2 05/ 19/94 -13- 285
its contract with its general contractor as the Executive Director requires within twenty (20) days of such determination or Participant shall be in default of this Agreement.
E. ( §405) Cost of Development.
Except as provided in Article III of this Agreement,
Participant shall be responsible for all costs of developing the Project, including but not limited to pre-development costs incurred for items such as planning, design, engineering, and environmental remediation; all development and building fees; the cost incurred to demolish and clear any and all existing improvements, furnishings, fixtures, and equipment from the Site; relocation expenses payable to existing occupants of the Site (if applicable); costs for insurance and bonds (as required); costs for financing; all on-site construction costs; and costs for any necessary public improvements, including curb cuts, utility connections, street repair, and similar items of work that may be necessary in the street rights-of-way adjacent to the Site.
F. (§406)
Participant
Schedule of Performance; Progress Reports.
shall begin and complete all construction and
development within the times specified in the Schedule of Performance. Once construction is commenced, it shall be continuously and diligently pursued to completion, and shall not be abandoned for more than five (5) consecutive days, except when due to causes beyond the control and without the fault of Participant, as set forth in Section 703 of this Agreement. The Schedule of Performance is subject to revision from time to time as may be mutually agreed upon in writing between Participant and Agency.
FS2\ I 78\U62266-022012092847 .2 05/19/94 -14- 286
During the course of construction, and prior to Agency's issuance of its Certificate of Completion for the Project, Participant shall keep Agency informed of the progress of construction on a monthly basis, which progress reports shall be in writing upon either party's request.
G. ( §407) Easements.
Participant shall grant to Agency and City all necessary and appropriate easements for development of public improvements and facilities which are consistent with the Project, including but not limited to easements for streets, rights of vehicular access, sidewalks, sewers, storm drains, water, and other utilities and improvements. Agency, City, and the appropriate utility companies shall be permitted to obtain any necessary temporary easements as required by them.
H. (§408) Anti-discrimination During Construction.
Participant, for itself and its successors and assigns, agrees that Participant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry, or national origin in connection with activities undertaken pursuant to this Agreement.
I. (§409) Bodily Injury, Propertv Damage, and Workers'
Compensation Insurance.
Prior to the commencement of construction of the Project on the Site, Participant shall furnish or cause to be furnished to Agency duplicate originals or appropriate endorsements of bodily injury and property damage insurance policies in the amount of at least One Million Dollars ($1,000,000) combined single limits, naming City and Agency and their officers, employees, and agents as FS21178\062266-022012092847 .2 05/19/94 -15- 287
additional insureds or co-insureds.
insurance:
In addition, all such
(i) shall be primary insurance and not contributory with any other insurance which City or Agency may have;
( ii) shall contain no special limitations on the
scope of protection afforded to City and
Agency and their officers, employees, agents,
and representatives;
(iii) shall be "date of occurrence" and not "claims
made" insurance;
(iv) shall apply separately to each insured against
whom claim is made or suit is brought, except
with respect to the limits of the insurer's
liability;
(v) shall provide that the policy will not be
cancelled by the insurer or Participant unless
there is a minimum of thirty (30) days prior
written notice to City and Agency;
(vi) shall be written by a good and solvent insurer
qualified to do business in California and
registered with the California State Department of Insurance; and (vii)
FS2\ 17 81062266-0220\2092847 .2 05/ 19/94
shall be endorsed to state that any failure to
comply with the reporting provisions of the
policies shall not affect coverage provided to
City and Agency.
-16- 288
None of the above described policies shall require Participant to meet a deductible or self-insured retention amount of more than Ten Thousand Dollars ( $10,000) unless approved in writing by Agency's Executive Director.
Participant shall also furnish or cause to be furnished to Agency's Executive Director evidence reasonably satisfactory to the Director that any contractor with whom Participant has contracted for the performance of work on and around the Site carries workers' compensation insurance as required by law.
The foregoing obligations shall remain in
Agency issues its Certificate of Completion
pursuant to Section 417 herein.
effect only until
for the Project
J. (§410) Indemnification for Construction Activities.
Participant agrees to and shall indemnify, defend, and hold harmless Agency and City and their officers, employees, and agents from and against all liability, loss, damage, costs, and expenses (including attorney's fees and court costs) arising from or as a result of the death or injury of any person or any accident, injury, loss, or damage whatsoever (whether or not covered by insurance) caused to any person or to the property of any person which shall occur on or adjacent to the Site and which shall be caused or alleged to have been caused by any acts done thereon or any errors or omissions of Participant or any of its agents, servants, employees, and contractors in developing the Project, whether or not such liability, loss, damage, costs, or expenses are covered by insurance.
FS2\ 178\062266-0220\2092847 .2 05/19194 -17- 289
K. ( §411) Rights of Access.
For the purpose of assuring compliance with this Agreement, representatives of Agency shall have the reasonable right of access to the Site, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to the inspection of the work being performed by Participant in constructing the Project. Such representatives of Agency shall be those who are so identified in writing by the Executive Director of Agency. Agency shall indemnify, defend, and hold harmless Participant and Participant's officers, employees, and agents from any damage caused or liability arising out of its exercise of this right of access; provided that it is understood that Agency does not by this Section 411 assume any responsibility or liability for a negligent inspection or failure to inspect.
L. (§412) Prohibition Against Assignment and Transfer.
The qualifications and identity of Participant are of particular concern to Agency. It is because of those qualifications and identity that Agency has entered into this Agreement with Participant. Accordingly, prior to Agency's issuance of the Certificate of Completion for the Project, as provided in Section 417 herein, Participant shall not, except as permitted in this Section 412, assign all or any part of this Agreement or any rights hereunder or in the Site without Agency's prior written approval.
Notwithstanding the foregoing, the following shall not be considered an assignment or transfer and shall not require Agency approval for purposes of this Section 412:
FS2117 8\062266-0220\2092847. 2 05/19/94 -18- 290
(i) Any mortgage, deed of trust, sale and leaseback, or other form of conveyance required for any reasonable method of financing the acquisition and development of the Site, including all direct and indirect costs related thereto,
and approved by Agency's Executive Director in
accordance with Section 414 herein;
(ii) A sale, conveyance, or transfer of the Site at
foreclosure (or a conveyance thereof in lieu
of a foreclosure) pursuant to a foreclosure
thereof by a lender meeting the requirements
of subparagraph (vi) above; and
(iii) The conveyance or dedication of portions of
the Site to the City or other appropriate
governmental agency, or the granting of easements or permits to facilitate the development of the Project.
Participant shall deliver written notice to Agency requesting approval of any assignment or transfer requiring Agency approval hereunder.
In considering whether it will grant approval to any assignment by Participant of its interest in the Site or any portion thereof, which assignment requires Agency approval, Agency shall consider factors such as (i) the financial strength and capability of the proposed assignee to perform Participant's obligations hereunder and (ii) the proposed assignee's experience and expertise in the planning, financing, development, and management of similar projects. No assignment, including assignments which do not FS2\ 178\062266-0220\2092847 .2 06/02/94 -19- 291
require Agency approval hereunder, but excluding assignments for financing purposes, shall be effective unless and until the proposed assignee executes and delivers to Agency an agreement in form satisfactory to Agency's attorney assuming the obligations of the assignor which have been assigned. Thereafter, the assignor shall be relieved of all responsibility to Agency for performance of the obligations assumed by the assignee.
Agency acknowledges that Participant may desire to assign its interest in the Site, the Project and this Agreement. Agency shall act reasonably in exercising its discretion to determine whether or not to approve such a transfer.
FS2\ l 78\062266-0220\2092M? .2 0610'2194 -20- 292
Participant shall compensate Agency for its actual expenses (not including personnel or overhead expenses) incurred in investigating a proposed assignee's qualifications as a permitted assignee hereunder.
The restrictions of this Section 412 shall terminate upon Agency's issuance of the Certificate of Completion for the Project.
M. ( §413) Taxes, Assessments, Encumbrances, and Liens.
Participant shall pay prior to delinquency all real estate taxes and assessments properly assessed and levied on the Site.
Until the date Agency issues its Certificate of Completion for the Project pursuant to Section 417, Participant shall not place or allow to be placed thereon any mortgage, trust deed, encumbrance or lien (except mechanic's liens prior to suit to foreclose the same being filed) not authorized by this Agreement. Participant shall remove or have removed any levy or attachment made on the Site, or assure the satisfaction thereof, within a reasonable time, but in any event prior to a sale thereunder.
Nothing herein contained shall be deemed to prohibit Participant from contesting the validity or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available to Participant in respect thereto.
N. (§414) Security Financing; Right of Holders.
1. Permitted Encumbrances.
Mortgages, deeds of trust, conveyances, and leases-back or any other form of conveyance required for any reasonable method of financing are permitted before Agency's issuance of the Certificate of Completion, but only for the purpose of securing loans of funds to be used for the construction of improvements on the Site and any FS211781062266-0220\2092847 .2 05/19/94 -21- 293
other expenditures necessary and appropriate to develop the Site under this Agreement. Prior to Agency's issuance of the Certificate of Completion for the Project, Participant shall not enter into any such conveyance for financing purposes without the prior written consent of Agency's Executive Director, which consent shall be given if such conveyance (i) is for the purposes permitted herein and (ii) is given to a financial or lending institution or other acceptable person or entity capable of performing or causing to be performed Participant's obligations under this Agreement, including without limitation a pension fund, insurance company, or real estate investment trust. Any disapproval shall be in writing and state the reasons therefor.
2. Holder Not Obligated to Construct Improvements.
The holder of any mortgage or deed of trust, or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; nor shall any covenant or any provision in the Agreement Containing Covenants Affecting Real Property for the Site be construed to so obligate such holder; provided, however, that nothing in this Agreement shall be deemed or construed to permit, or authorize any such holder to devote the Site or any part thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement.
3. Notice of Default to Mortgage, Deed of Trust or
Other Security Interest Holders; Right to Cure.
Whenever Agency shall deliver any notice or demand to Participant with respect to any breach or default by Participant in l'S2\l 7X\ll62266-022ll\2ll92847.2 llS/ 19194 -22- 294
completion of construction of the improvements, Agency shall at the same time deliver a copy of such notice or demand to each approved holder of record of any mortgage, deed of trust, or other security interest which has previously requested such notice in writing.
Each such holder shall (insofar as the rights of Agency are concerned) have the right, at its option within sixty (60) days after the receipt of the notice, to commence and thereafter to diligently proceed to cure or remedy such default and add the cost thereof to the security interest debt and the lien on its security interest.
Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to preserve and protect the improvements or construction already begun) without first having expressly assumed Participant's obligations to Agency by written agreement satisfactory to 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. Any such holder properly completing such improvements shall be entitled to a Certificate of Completion upon written request made to Agency ..
4. Right of Agency to Cure Mortgage, Deed of Trust, or
Other Security Interest Default.
In the event of a default or breach by Participant of a mortgage, deed of trust, or other security interest or leaseback or conveyance for financing prior to the issuance by Agency of the Certificate of Completion for the Project, Agency may cure the default prior to completion of any foreclosure. In such event, Agency shall be entitled to reimbursement from Participant of all FS2\178\062266-0220\2092847, 2 05/19/94 -23- 295
costs and expenses reasonably incurred by Agency in curing the default, which right of reimbursement shall be secured by a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to:
0. (i) Any mortgage, deed of trust or other security
instrument or sale and leaseback or other
conveyance for financing permitted by this
Agreement; or
(ii) Any rights or interests provided in this
Agreement for the protection of the holders of
such mortgages, deeds of trust, or other
security instruments, the lessor under a sale
and lease-back, or the grantee under such
other conveyance for financing; provided that
·nothing herein shall be deemed to impose upon
Agency any affirmative obligations (by the
payment of money, construction or otherwise)
with respect to the Site in the event of its
enforcement of its lien.
(§415) Riqht of Aqencv to Satisfy Liens.
Prior to the issuance by Agency of the Certificate of Completion for the Project, and after Participant has had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the Site, Agency, after sixty (60) days prior written notice to Participant, shall have the right, but not the obligation, to satisfy any liens or encumbrances on the Site; provided, however, that nothing in this Agreement shall require Participant to pay or make provision for the payment of any tax, assessment, lien, or l'S21178\ll62266-U22U\2092847 .2 05/ I 9/94 -24- 296
charge so long as Participant in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site to forfeiture or sale.
P. (§416) Estoppels.
At the request of Participant or any holder of a mortgage or deed of trust, Agency shall, from time to time and upon the request of such holder, timely execute and deliver to Participant or such holder a written statement of Agency that no default or breach exists (or would exist with the passage of time, or giving of notice, or both) by Participant under this Agreement, if such be the case, and certifying as to whether or not Participant has at the date of such certification complied with any obligation of Participant hereunder as to which such holder may inquire. The form of any estoppel letter shall be prepared by the holder or Participant and shall be at no cost to Agency; Participant shall reimburse Agency for any costs incurred in connection therewith, including Agency's legal expenses, upon submission to Participant of an invoice therefor by Agency.
Q. (§417) Certificate of Completion.
Upon the satisfactory completion of the rehabilitation of the Project, Agency shall furnish Participant with a final Certificate of Completion for such work in the form attached hereto as Attachment No. 4 upon written request therefor by Participant.
Such Certificate of Completion shall be in a form so as to permit recordation in the Office of the Orange County Recorder.
The Certificate of Completion shall be, and shall so state, a conclusive determination of satisfactory completion of Participant's rehabilitation obligations under this Agreement, and of full FS2\l 781062266-0220\2092847 .2 05/19/94 -25- 297
compliance with the terms of
rehabilitation of the Project
Participant is entitled to the
this
on the
Agreement, relating to
Site. After the date
issuance of the Certificate of
Completion, and notwithstanding any other provisions of this Agreement to the contrary, any party then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Site 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 the following:
(i) the indemnity obligations referred to in Sections 410 and 607 herein, (ii) the covenants regarding use and maintenance contained in Sections 501-502 and 506, (iii) the covenants regarding nondiscrimination contained in Sections 504-506, (iv) such covenants as may be contained in the Agreement Containing Covenants Affecting Real Property, and (v) the provisions of Articles VI and VII herein to the extent applicable. Agency shall not unreasonably withhold issuance of the Certificate of Completion. If Agency refuses or fails to furnish the Certificate of Completion after written request from Participant, Agency shall, within thirty (30) days after such written request, provide Participant with a written statement of the reasons Agency refused or failed to furnish the Certificate of Completion. The statement shall also contain Agency's opinion of the action Participant must take to obtain the Certificate of Completion. If the reason for such refusal is confined to the immediate availability of specific items or materials for landscaping, Agency will issue its Certificate of Completion upon the posting of a cash deposit by Participant with FS2\l 78\062266-0220\2092847 .2 05/19/94 -26- 298
Agency in an amount representing the fair value of the work not yet completed.
The Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Participant to any holder of a mortgage or any insurer of a mortgage on or with respect to the Site. The Certificate of Completion is not a notice of completion as referred to in California Civil Code Section 3093.
V. (§500) USES OF THE SITE
A. (§501) Use of the Site.
1. General.
Participant covenants and agrees for itself and its successors and assigns to its interest in the Site that Participant and such successors and assigns shall not devote the Site to uses inconsistent with the Home Program, the Scope of Work, the approved Project plans and the Agreement Containing Covenants Affecting Real Property, whichever is most restrictive, for the periods of time set forth in the Agreement Containing Covenants Affecting Real Property. In the event of a conflict between the requirements of the Home Program and this Agreement or the Agreement Containing Covenants Affecting Real Property, the Home Program requirements shall prevail.
2. Affordable Housing.
Participant covenants and agrees for itself and its successors and assigns to its interest in the Site that commencing on the Effective Date and continuing thereafter until the date that is thirty (30) years after Agency's issuance of its Certificate of Completion for the Project or until the Note is completely paid FS2\l 78\062266-0220\2092847. 2 05/ 19/94 -27- 299
off, whichever is later, Participant and such successors and assigns shall not devote the Site to any uses other than as an affordable rental housing project in accordance with the Home Program, this Agreement (including the Scope of Work), and the Agreement Containing Covenants Affecting Real Property, subject to the occupancy restrictions contained in this Section 501.2. During such period of time, the individual rental units shall be rented to and occupied only by households earning fifty percent (50%) or less of the median income, adjusted for family size, for Orange County, according to the income figures prepared by HUD each year, with each unit to be rented at II affordable rent 11 ( as defined in California Health and Safety Code Section 50053) for households of such income levels, subject to, and as more particularly set forth in the Agreement Containing Covenants Affecting Real Property (Attachment No. 5) Additionally, the number of persons permitted to occupy each unit shall not exceed the occupancy limits permitted pursuant to HUD's general requirements. In determining how many members are included in a household for the purpose of assuring compliance with the maximum occupancy standards, each of the following persons must be counted: (i) all full-time members of the household; (ii) all children anticipated to reside in a unit (including, but not limited to, children expected to be born to pregnant women, children in the process of being adopted, children subject to shared custody who will spend at least fifty percent (50%) of their time in the unit, foster children, and children who are temporarily absent from the household due to placement in a foster home); and (iii) all live-in attendants. The lease for each unit shall include a provision so limiting the number of persons FS2\ I 7 81062266-022012092847 .2 05/ I 9/94 -28- 300
permitted to occupy each unit and Participant shall diligently enforce said occupancy restrictions.
3. Annual Reports.
During the entire period of time that the affordability covenants remain effective pursuant to Section 501.2 and within the times required in the Schedule of Performance, Participant, at its expense, shall submit to Agency, or shall cause the property manager to submit, the annual reports required pursuant to Health and Safety Code 33418, as the same may be amended from time to time, with such reports to be in the form prescribed by Agency.
4. Insurance.
Participant covenants and agrees for itself and its successors and assigns to its interest in the Site that prior to the issuance of the Certificate of Completion and continuing thereafter during the entire period of time that the affordability covenants remain effective pursuant to Section 501.2, Participant and such successors and assigns shall procure and keep in full force and effect or cause to be procured and kept in full force and effect for the mutual benefit of Participant and Agency and Participant shall provide to Agency evidence reasonably acceptable to the Agency's Executive Director of insurance policies meeting the minimum requirements set forth below or such greater requirements that are generally obtained from time to time for properties, improvements, activities, and operations similar to those on the Site in the Southern California area:
(i) Comprehensive General Liability insurance with
respect to the Site and the operations of or on
behalf of Participant, in an amount not less than
FS2117 81062266-022012092847 ,2 05/19/94 -29- 301
One Million Dollars ($1,000,000) per occurrence
combined single limit including products, completed
operations, contractual, bodily injury, personal
injury, death and property damage liability per
occurrence, subject to such increases in amount as
Agency may reasonably require from time to time but
not more frequently than every 36 months; provided,
that the percentage increase in coverage shall not
be required to exceed the percentage increase in
the Consumer Price Index published by the United
States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles-Long Beach-Anaheim Average, All Items
(1984 = 100) (the "Index"), from and after the date
the Certificate of Completion is issued, or if said
Index is discontinued, such official index as may
then be in existence and which is most nearly
equivalent to said Index (the "CPI Adjustment").
The insurance to be provided by Participant may
provide for a deductible or self-insured retention
of not more than Ten Thousand Dollars ($10,000),
with such maximum amount to increase at the same
rate as the periodic increases in the minimum
amount of total insurance coverage set forth above.
(ii) With respect to the improvements and any fixtures
and furnishings to be owned by Participant on the
Site, All Risk Property insurance against fire,
extended coverage, vandalism, and malicious misJ'Sl1178\ll62266-ll22ll\2ll92847.2 05/ 19/94 -30- 302 chief, and such other additional perils, hazards,
and risks as now are or hereafter may be included
in the standard "all risk" form in general use in
Orange County, California, with the standard form
fire insurance coverage in an amount equal to not
less than the full actual replacement cost thereof,
as the same may change from time to time, and the
additional coverage provided by the "all risk"
coverage in an amount not less than twenty-five
percent (25%-) of the replacement cost. Agency
shall be a loss payee under such policy or policies
and such insurance shall contain a replacement cost
endorsement.
All policies of insurance required to be carried by
Participant shall be written by responsible and solvent insurance companies licensed in the State of California with a "Best" rating of not less than B+, Class A or better, in the most recent addition of "Best's Key Rating Guide Property and Casualty." A copy of each paid-up policy evidencing such insurance (appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such policy has been issued, providing the coverage required herein, and containing the provisions specified herein, shall be delivered to Agency prior to its issuance of the Certificate of Completion for the Project and thereafter, upon renewals, not less than thirty (30) days prior to the expiration of coverage.
Agency may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by FS21I781062266-0220\2092847. 2 05/19/94 -31- 303
Participant hereunder. In no event shall the limits of any policy be considered as limiting the liability of Participant hereunder.
Each insurance policy required to be carried by Participant pursuant to this Agreement:
(i) shall be primary insurance and not contributory with any other insurance which Agency may have;
( ii) shall contain no special limitations on the
scope of protection afforded to Agency and its
officers, employees, agents, and
representatives;
(iii) shall be "date of occurrence" and not "claims
made" insurance;
(iv) shall apply separately to each insured against
whom claim is made or suit is brought, except
with respect to the limits of the insurer's
liability;
(v) shall provide that the policy will not be
cancelled by the insurer or Participant unless
there is a minimum of thirty (30) days prior
written notice to Agency;
(vi) shall be written by a good and solvent insurer
qualified to do business in California and
registered with the California State Department of Insurance; and (vii) shall be endorsed to state that any failure to
comply with the reporting provisions of the
FS2\J 78\062266-022ll\2092847 .2 05/19/94 -32- 304
policies shall not affect coverage provided to
Agency.
In addition to any other remedy which Agency may have hereunder for Participant's failure to procure, maintain, and/or pay for the insurance required herein, Agency may (but without any obligation to do so) at any time or from time to time, after thirty (30) days written notice to Participant, procure such insurance and pay the premiums therefor, in which event Participant shall immediately repay Agency all sums so paid by Agency together with interest thereon at the rate of ten percent (10%) per annum or the maximum legal rate, whichever is less.
5. Repair of Damage.
(i) Obligation to Repair and Restore Damage Due to
Casualty Covered by Insurance.
Subject to subparagraph (iv) below, if the Project shall be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured against by Participant, Participant shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacement of the Project to substantially the same condition as the Project is required to be maintained in pursuant to this Agreement, whether or not the insurance proceeds are sufficient to cover the actual cost of repair, replacement, or restoration, and Participant shall complete the same as soon as possible thereafter so that the Project can continue to be operated and occupied as an affordable housing project in accordance with this Agreement. Subject to Section 703, FS211781062266-0220\2092847. 2 05/ 19/94 -33- 305
in no event shall the repair, replacement, or restoration period exceed one (1) year from the date Participant obtains insurance proceeds unless Agency's Executive Director, in his or her sole and absolute discretion, approves a longer period of time. If, however, the then-existing laws of any governmental agencies with jurisdiction over the Site do not permit the repair, replacement, or restoration, Participant may elect not to repair, replace, or restore the Project by giving notice to Agency (in which event Participant shall be required to remove all debris from the Site) or Participant may reconstruct such other improvements on the Site as are consistent with applicable land use regulations and approved by the City, Agency, and the other governmental agency or agencies with jurisdiction.
(ii) Application of Insurance Proceeds.
All insurance monies received on account of damage or destruction, less the cost, if any, of such recovery, shall be applied as necessary to the payment of the cost of repairing, replacing, and restoring the improvements comprising the Project. Except as otherwise provided herein, if net available insurance monies shall be insufficient to pay the entire cost of such work, or if the damage or destruction shall be the result of a cause not required to be insured against, then Participant shall bear the cost thereof in excess of the net available insurance monies.
(iii) Continued Operations.
During any period of repair, Participant shall continue, or cause the continuation of, the operation of the housing complex on the Site to the extent reasonably practicable from the standpoint of prudent business management.
l'S2\I n\U62266-ll22ll\2ll92847.2 05/ 19/94 -34- 306
(iv) Damage or Destruction Due to Cause Not
Required to be Covered by Insurance.
If the improvements comprising the Project are completely destroyed or substantially damaged by a casualty for which Participant is not required to insure against (and has not insured against), then Participant shall not be required to repair, replace, or restore such improvements and may elect not to do so by providing Agency with written notice of election not to repair, replace, or restore within ninety (90) days after such substantial damage or destruction. In such event, Participant shall remove all debris from the Site. As used in this subparagraph (iv), "substantial damage" caused by a casualty not required to be (and not) covered by insurance shall mean damage or destruction which is fifty percent (50%) or more of the replacement cost of the improvements comprising the Project. In the event Participant does not timely elect not to repair, replace, or restore the improvements as set forth in the first sentence of this subparagraph (iv), Participant shall be conclusively deemed to have waived its right not to repair, replace, or restore the improvements and thereafter Participant shall promptly commence and complete the repair, replacement, or restoration of the damaged or destroyed improvements in accordance with subparagraphs (i) and (ii) above and continue operation of the housing complex during the period of repair (if practicable) in accordance with subparagraph (iii) above.
B. (§502) Maintenance of the Site.
Participant agrees to maintain or cause to be maintained all improvements on the Site in first class condition and repair (and, FS2\l 78\062266-022Cl\2092847 .2 05/19/94 -35- 307
as to landscaping, in a healthy condition) and in accordance with the approved plans referenced in Sections 401 and 402 herein (including without limitation any approved landscape plans), as the same may be amended from time to time, and all other applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. In addition, Participant shall (i) keep the Site or cause the Site to be kept free from all graffiti and any accumulation of debris or waste material and (ii) keep all trash containers out of public view during non-trash days and otherwise maintained in accordance with applicable City requirements. Participant shall make all repairs and replacements necessary to keep the improvements in first class condition and repair and shall promptly eliminate all graffiti and replace dead and diseased plants and landscaping with comparable approved materials. The maintenance covenant contained in this Section 502 shall remain in effect from the Effective Date through the entire period of time that the affordability covenants remain effective pursuant to Section 501.2.
Additionally, Participant shall be required to include in the lease for each unit which has a garage assigned to it provisions that (i) the tenant keep the garage clear, accessible, and usable for parking a vehicle inside and (ii) the tenant shall not park a vehicle belonging to the tenant's household in the driveway or on the street in the immediate vicinity of the Site, when there is no vehicle in the garage (except for brief periods during which access to the garage is necessary for other purposes). Participant agrees FS2\17 8\062266 0220\2092847. 2 05/19/94 -36- 308
to use reasonable diligence to assure that tenants comply with the lease provisions requiring maintenance of garages and parking of vehicles therein.
In the event that Participant breaches any of the covenants contained in this Section 502 and such default continues for a period of one (1) day after written or verbal notice from Agency (with regard to maintenance and removal of trash containers), five (5) days after written or verbal notice from Agency (with respect to landscaping, graffiti, debris, waste material, general maintenance, or the condition of the garages) or thirty (30) days after written notice from Agency (with respect to building improvements), then Agency, in addition to whatever other remedy it may have at law or in equity, shall have the right to enter upon the Site and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, Agency and/or City shall be permitted with due notice and without disturbing the tenants (but are not required) to enter upon the Site and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Site, and to attach a lien on the Site, or to assess the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by Agency and/or costs of such cure, including a fifteen percent (15t) administrative charge, which amount shall be promptly paid by Participant to Agency upon demand.
C. (§503) Property Management Fee.
Participant shall be entitled to a property management fee in payment for its duties in operating and managing the Project on the FS21I78\U62266U220\2092847. 2 05/ 19/94 -37- 309
Site. In no event shall the cost of the property management fee reduce or alter any debt service payments Participant is obligated to make, including, but not limited to, Participant's obligation to make the payments required pursuant to the Note.
D. (§504) Obligation to Refrain from Discrimination.
There shall be no discrimination against, or segregation of, any persons, or group of persons, on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the enjoyment of the Site, nor shall Participant 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, subtenants, sublessees, or vendees of the Site or any portion thereof. The foregoing covenants shall run with the land and shall remain in effect in perpetuity.
E. (§505) Form of Nondiscrimination and Nonsegregation
Clauses.
Participant shall refrain from restricting the rental, sale, or lease of any portion of the Site, or contracts relating to the Site, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for
himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of FS2\178\062266-0220\2092847 .2 05/19/94 -38- 310
persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any persons claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed.
The foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for
himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees,
vendees in the land herein leased."
subtenants, or
3. In contracts: "There shall be no discrimination
against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee FS21 l 78\ll62266-0220\2092847.2 05119/94 -39- 311
himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of land."
F. (§506) Effect of Covenants.
Agency is deemed a beneficiary of the terms and provisions of this Agreement and of the restrictions and covenants running with the land for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit the covenants running with the land have been provided. The covenants in favor of Agency shall run without regard to whether Agency has been, remains, or is an owner of any land or interest therein in the Site. Agency shall have the right, if any of the covenants set forth in this Agreement or the Agreement Containing Covenants Affecting Real Property which are provided for its benefit are breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of such covenants may be entitled.
G. ( §507) Agreement Containing Covenants Affecting Real Property.
Within the time set forth in the Schedule of Performance, Participant shall record against the Site the "Agreement Containing Covenants Affecting Real Property" in the form set forth in Attachment No. 5, incorporated herein by this reference.
FS2\l 781062266-022ll\2092847 .2 05119194 -40- 312
VI. (§600) DEFAULTS, REMEDIES, AND TERMINATION
A. (§601) Defaults--General.
Subject to the extensions of time set forth in Section 703, failure or delay by any party to perform any term or provision of this Agreement constitutes a default under this Agreement; provided, however, such party shall not be deemed to be in default if (i) it cures, corrects, or remedies such default within thirty (30) days after receipt of a notice from the other party specifying such failure or delay (or 1-5 days with respect to certain defaults referred to in Section 502), or (ii) for defaults that cannot reasonably be cured, corrected, or remedied within such time period, if such party commences to cure, correct, or remedy such failure or delay immediately after receipt of a notice from the other party specifying such failure or delay, and diligently prosecutes such cure, correction or remedy to completion.
Except to the limited extent verbal notices are expressly authorized under Section 502, the injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Copies of any notice of default given to Participant shall also be given to any permitted lender requesting such notice. Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until the time for cure, correction, or remedy of a default has expired. Except as otherwise expressly provided in this Agreement, any failure or delay by a party in giving a notice of default or in asserting any of its rights and remedies as to any default shall not constitute a waiver of any default, nor shall it change the time of default, FS211781062266-0220\2092847 2 05/19/94 -41- 313
nor shall it deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies.
B. ( §602) Legal Actions.
1. Institution of Legal Actions. 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 and maintained in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that county.
2. Applicable Law. The laws of the State of California
shall govern the interpretation and enforcement of this Agreement.
3. Acceptance of Service of Process. In the event that
any legal action is commenced by Participant against Agency, service of process on Agency shall be made by personal service upon the Executive Director or Secretary of Agency, or in such other manner as may be provided by law.
In the event that any legal action is commenced by Agency against Participant, service of process on Participant shall be made by personal service upon Participant or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California.
C. (§603) Liquidated Damages.
1. It shall constitute a default for Participant to
charge or accept rent amounts in excess of the amount provided for in Section 501.2 of this Agreement and the Agreement Containing Covenants Affecting Real Property. In the event that Participant l'S2\I 78\062266-0220\2092847 .2 05/ 19/94 -42- 314
charges or receives such higher rental amounts, in addition to any other equitable remedy Agency shall have for such default, to the extent permitted by law, including without limitation any applicable HUD requirements and any applicable requirement of the Internal Revenue Service and the Internal Revenue Code, Participant shall be required to pay to Agency the entire amount of rent received in excess of the amount permitted pursuant to this Agreement.
2. It shall constitute a default for Participant to
rent any unit to a tenant who is not eligible for the unit pursuant to the affordability requirements set forth in Section 501.2 of this Agreement and the Agreement Containing Covenants Affecting Real Property. In the event Participant does rent a unit to an ineligible tenant, in addition to any other equitable remedy Agency shall have for such default, Participant shall be required to pay to Agency ten percent (10%) of the monthly rent actually being charged or ten percent (10%) of the affordable monthly rent which should be charged for the unit in question, whichever is higher, for each month that an ineligible tenant has a lease for or is occupying a unit.
3. THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH
IN SUBPARAGRAPHS 1 AND 2 OF THIS SECTION 603 (THE "DAMAGE AMOUNTS")
CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL DAMAGES THAT
AGENCY WOULD SUFFER DUE TO THE DEFAULTS BY PARTICIPANT SET FORTH IN SUBPARAGRAPHS 1 AND 2, CONSIDERING ALL OF THE
EXISTING ON THE EFFECTIVE DATE OF THIS AGREEMENT,
CIRCUMSTANCES
INCLUDING THE
RELATIONSHIP OF THE DAMAGE AMOUNTS TO THE RANGE OF HARM TO AGENCY
AND ACCOMPLISHMENT OF AGENCY'S PURPOSE OF ASSISTING IN THE FS2\ I 78\ll62266-ll22ll\2092847, 2 05/ J 9/94 -43- 315
PROVISION OF AFFORDABLE HOUSING TO ELIGIBLE HOUSEHOLDS THAT
REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE AMOUNTS SET FORTH IN THIS SECTION 603 SHALL BE THE SOLE DAMAGES REMEDIES FOR THE DEFAULTS SET FORTH IN THIS SECTION 603, BUT NOTHING IN THIS SECTION 603 SHALL BE INTERPRETED TO LIMIT AGENCY'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING ITS INITIAL AT THE
PLACES PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY
HAS BEEN REPRESENTED BY COUNSEL OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED BY COUNSEL TO EXPLAIN THE CONSEQUENCES OF THE
LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE TIME EACH EXECUTED THIS AGREEMENT.
PARTICIPANT'S INITIALS: AGENCY'S INITIALS:
D. (§604) Rights and Remedies are Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
E. (§605) Attorney's Fees.
If either party to this Agreement is required to initiate or defend litigation in any way connected with this Agreement, the prevailing party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be FS211781062266-022012092847 .2 05/19/94 -44- 316
entitled to reasonable attorney's fees. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term or provision of this Agreement by the other party, then the party so litigating shall be entitled to reasonable attorney's fees from the other party to this Agreement. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred with respect to such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
F. (§606) Indemnification.
Participant (the 11 Indemnitor11) agrees to indemnify, defend, and hold harmless Agency and its officers, employees, and agents (collectively, the II Indemni tee 11) from and against any and all claims, causes of action, liabilities, and damages arising out of any acts or omissions of the Indemnitor arising out of the Indemnitor's performance under this Agreement and/or with respect to the Site. The Indemnitee shall promptly notify the Indemnitor of the filing of any such action and cooperate with the Indemnitor in the defense thereof (at no cost to Indemnitee) . So long as the Indemnitor is not in default hereunder, the Indemnitee shall not compromise the defense of such action or permit a default judgment to be taken against the Indemnitee without the prior written approval of the Indemnitor, or its successors in interest.
FS2\178\062266-U220\2092847.2 05/19/94 -45 - 317
VII. (§700) GENERAL PROVISIONS
A. (§701) Notices, Demands, and Communications Between
the Parties.
Formal notices, demands, and communications between Agency and Participant shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to:
To Agency:
With a copy to:
To Participant:
San Clemente Redevelopment Agency
100 Avenida Presidio
San Clemente, California 92672
Attn: Executive Director
Rutan & Tucker
611 Anton Blvd., Suite 1400
Costa Mesa, California 92626
Attn: Jeffrey M. Oderman
Mary Erickson Foundation
P.O. Box 3112
Mission Viejo, California 92690
Attn: Mary La Rusen
Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail.
B. (§702) Non.liability of City and Agency Officials and Employees; Conflicts of Interest.
No member, official, employee, or contractor of City or Agency shall be personally liable to Participant in the event of any default or breach by Agency or for any amount which may become due FS2\l 781062266-022Cl\2092847. 2 05/ 19/94 -46- 318
to Participant or on any obligations under the terms of this Agreement.
No member, official, employee, or agent of City or Agency shall have any direct or indirect interest in this Agreement nor participate in any decision relating to this Agreement which is prohibited by law.
C. (§703) Enforced Delay; Extension of Times of
Performance.
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to causes beyond the control and without the fault of such party, including as applicable: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; supernatural causes; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplies; acts of the other party; acts or the failure to act of City or any other public or governmental agency or entity (except that any act or failure to act of or by Agency shall not excuse performance by Agency). Notwithstanding the foregoing, Participant's inability to secure satisfactory financing, interest rates, and market and economic conditions shall not entitle Participant to an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such FS2\ ! 78\062266-0220\2092847. 2 05/19/94 -47- 319
extension is sent to the other party within thirty (30) days of knowledge of the commencement of the cause.
Times of performance under this Agreement may be extended by mutual written agreement of Agency and Participant. The Executive Director of Agency shall have the authority on behalf of Agency to approve extensions of time not to exceed a cumulative total of one hundred eighty (180) days.
D. (§704) Inspection of Books and Records.
Agency shall have the right at all reasonable times to inspect the books and records of Participant pertaining to the Site and the Project as pertinent to the purposes of this Agreement. Participant also has the right at all reasonable times to inspect the books and records of Agency pertaining to the Site and the Project as pertinent to the purposes of the Agreement.
E. (§705) Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement.
F. (§706)
This Agreement
Entire Agreement, Waivers and Amendments.
integrates all of the terms and conditions
mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or any part of the subject matter hereof.
FS2\J 7 8\062266-0220\2092847. 2 05/19/94 -48- 320
All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Participant.
G. (§707) Consent; Reasonableness.
Except when this Agreement specifically authorizes a party to withhold its approval or consent in its sole discretion, when either Agency or Participant shall require the consent or approval of the other party in fulfilling any agreement, covenant, provision, or condition contained in this Agreement, such consent or approval shall not be unreasonably withheld, conditioned, or delayed by the party from whom such consent or approval is sought.
H. (§708) Severability.
If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. In the event that all or any portion of this Agreement is found to be unenforceable, this Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event, and to the maximum extent permitted by law, they shall take all steps necessary to comply with such procedures or requirements as may be necessary in order to make valid this Agreement or that portion which is found to be unenforceable.
FS2\ I 78\062266-0220\2092847 .2 05/19/94 -49- 321
I. (§709) Third Partv Beneficiaries.
Notwithstanding any other provision of this Agreement to the contrary, and excepting only the rights of City as set forth in Sections 305, 407, 409, 410, and 502, nothing herein is intended to create any third party beneficiaries
person or entity other than Agency
permitted successors and assigns of
to this Agreement, and no
and Participant, and the
either of them, shall be
authorized to enforce the provisions of this Agreement.
J. (§710) Authority of Signators to Bind Principals.
The persons executing this Agreement on behalf of their respective principals represent that they have been authorized to do so and that they thereby bind the principals to the terms and conditions of this Agreement.
K. ( §711) Representations and Warranties.
Participant represents and warrants that: ( i) it is a nonprofit public benefit corporation duly organized and existing under Section 501(c) (3) of the Internal Revenue Code and the laws of the State of California, in good standing, and authorized to do business and doing business in the County of Orange; (ii) it has all requisite power and authority to carry out its business as now and whenever conducted and to enter into and perform its obligations under this Agreement; (iii) by proper action of Participant, Participant's signatories have been duly authorized to execute and deliver this Agreement; (iv) the execution of this Agreement by Participant does not violate any provision of any other agreement to which Participant is a party; and (v) except as may be specifically set forth in this Agreement, no approvals or consents not heretofore obtained by Participant are necessary in connection with FS2\ 178\062266-0220\2092847 .2 05/19/94 -50- 322
the execution of this Agreement by Participant or with the performance by Participant of its obligations hereunder.
L. (§712) Execution.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date specified herein.
ATTEST:
rn cff/J ../V1...✓._., , G/uda_,uf,,--
S ecretijy
• J
APPROVED AS TO FORM:
RUT TUCKER
. Oderman
the San Clemente
Redevelopment Agency
FS211781062266-0220\2092847 .2 05/19/94 -51-
"AGENCY"
SAN CLEMENTE REDEVELOPMENT
AGENCY/4&U/ By:!?
Chairman
"PARTICIPANT"
MARY ERICKSON FOUNDATION, a
Non-Profit Public Benefit
Corporation
By: tDcvu1 & �
Its : ' Gha, rnv,n
323
ATTACHMENT NO. 1
LEGAL DESCRIPTION AND DEPICTION OF THE SITE
ATTACHMENT NO. 1
�Sl\ 178\062266-0220\1092847. 2 05119194 324
Legal Descript·
Lot 49, 81oc
ion
���# 058-051�5
�
3 �n
:
ract 793
Lot Jl 5 0 '· 8 l o ck 1 3
APNrr 058-051-58
Book 24
Pages l to 5
Tract 793
LEGAL
DESCRIPTION
ORAHCil C::lUHTT
LOCATICN MAP
SCAL�
I
I
325
ATTACHMENT NO. 2
SCHEDULE OF PERFORMANCE
Item of Performance
1. Participant obtains ownership of
the Site and submits evidence of
such ownership to Agency (§301)
2. Participant causes Agreement
Containing Covenants Affecting
Real Property to be recorded
against the Site (§507).
3. Participant provides Agency with a
copy of its contract with its
general contractor ( §404) .
4. Participant submits final building
plans for City's review and
approval ( §402) .
5. Agency approves (or disapproves)
final building plans for Project
and exercises reasonable diligence
in an effort to cause the City to
do the same (§402).
6. Participant submits evidence of
financial capability (§304).
7. Agency's Executive Director
approves (or disapproves)
Participant's evidence of
financial capability (§304)
8. Participant submits evidence of
insurance ( §409) .
FS2\ I 78\062266-ll22ll\2092847 2 05119194
ATTACHMENT NO. 2
Time for Performance
On or before June 20,
1994.
Concurrently with
Item No. 1.
Within forty-five
(45) days of Item No.
1. Within seventy-five
(75) working days of
Item No. 1.
Within ten (10)
working days of
completion of Item
No. 4.
Within fifteen (15)
working days after
City approval of
final building plans.
Within fifteen (15)
working days after
receipt of complete
submittal.
Prior to commencement
of construction of
the Project on the
Site.
326
Item of Performance
9. Participant obtains building
permit(s) and commences construction of the Project (§§401 and 406) .
10. Participant submits evidence of
liability and property insurance
to Agency (§501.4).
11. Participant completes construction
of the Project and obtains City
approval of final inspection
( §§ 401 and 4 O 6 ) .
12. Agency issues Certificate of
Completion (§417).
13. Participant submits to Agency
annual reports required pursuant
to Health and Safety Code Section
33418, as amended from time to
time ( §501. 3) .
Time for Performance
Within thirty (30)
working days after
Agency's Executive
Director approves
Participant's
evidence of financial
capability.
Prior to completion
of construction and
Agency's issuance of
the Certificate of
Completion.
Within one hundred
eighty (180) days
after close of escrow
for the Site.
Upon satisfactory
completion of
construction of the
Project upon request
of Participant.
On or before
August 1st of each
year subsequent to
completion of
construction of the
Project.
It is understood that the foregoing Schedule is subject to all of the terms and conditions of the text of the Agreement. The summary of the items of performance in this Schedule is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule and the text of the Agreement, the text shall govern.
FS211781062266-0220\2092847. 2 05/19/94
ATTACHMENT NO. 2
ATTACHMENT NO. 3
SCOPE OF WORK
MARY ERICKSON FOUNDATION
REHABILITATION OF 133-135 W. CANADA
1. Repair roof of 133 W. Canada
2. Replace garage doors, add garage door openers
3. Remove and replace driveways
4. Remove and replace all aluminum screens and sliding door screens
S. Remove and replace tub/shower enclosures as needed
6. Repair all plumbing problems
7. Repair all electrical/heating problems
8. Repair/replace landscaping and irrigation as needed
9. Replace broken/aged kitchen appliances
10. Replace kitchen counters and sinks, refinish cupboards as needed
11. Replace bathroom sinks/cupboards as needed
12. Replace kitchen and flooring as needed
13. Paint unit interiors
14. Raingutter repairs
15. Garage decks engineering or reinforcing
16. Repair handrails, balconies and stairs
ATTACHMENT NO. 3
FS2\ I 78\0622fio-02201209184 7. 2 0 5 / l 9194 328
RECORDING REQUESTED BY:
GATEWAY TITLE
AND WHEN RECORDED MAlL TO:
SAN CLEMENTE REDEVELOPMENT AGENCY
CI1Y HALL, 100 AVENIDA PRESIDIO
SA.l\T CLEMENTE, CA 92632
AT1N. EXECUTIVE DIRECTOR
_ l�::�:::;:�;E;:�:, m::r:c
f
1 3::e l o-f 17 h?es; '! r1 .00
i�}:·: $ 0:00
SPACE ABOVE THIS LINE FOR RECORDER USE
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
AGREEMENT CONTIANING COVENANTS AFFECTING
1YPE OF DOCUMENT: REAL PROPER1Y
DATED: 7/6/94 --------------------
THIS AGREEMENT rs RECORDED AT 1RE REQUEST AND FOR THE BENEFIT OF THE SAN CLEMENTE REDE'i!ELOP�NT AGENCY AND IS EXEMPT FROM THE PAYMENT OF A RECORDING FEE PURSUANT TO GOVERNMENT CODE SECTION 6103. 17 (l
329
AGREEMENT CONTAINING COVENANTS
AFFECTING REAL PROPERTY
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
San Clemente Redevelopment Agency
city Hall, 100 Avenida Presidio
San Clemente, California 92632
Attn: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Agreement is recorded at the request and for the benefit of the San Clemente Redevelopment Agency and is exempt from the payment of a recording fee pursuant to Government Code Section 6103.
SAN CLEMENTE REDEVELOPMENT
;���
c
),_� »J�
Dated: ,Mcf (e , 1994
AGREEMENT CONTAINING COVENANTS
AFFECTING REAL PROPERTY
THIS AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY ("Agreement") is executed this (.p '-++I day of ::f.; / f}y , 1994, by
and between the SAN CLEMENTE REDEVELOPMENT AGEN , a public body, corporate and politic (the "Agency"), and the MARY ERICKSON FOUNDATION, a non-profit public benefit corporation ("Participant") with reference to the following:
A. Participant is fee owner of record of that certain real property (the "Property") located in the City of San Clemente, County of Orange, State of California, legally described in the attached Exhibit "A. 11
B. Agency and Participant have entered into an Owner
Participant Agreement (the "OPA") , dated as of June 1, 1994, concerning the development and operation of improvements on the Property, which OPA is incorporated herein by reference and is a public record available for public inspection at Agency's offices located at 100 Avenida Presidio, San Clemente, California 92672. c. The definitions of all terms in the OPA shall apply to this Agreement unless otherwise indicated.
FS21l781062266-022012103137 .1 06/24/94 1 330
D. In order to redevelop the Property in accordance with the requirements of the OPA, Participant is going to receive certain funding from the County of Orange from the United States Department of Housing and Urban Development's ("HUD") Home Investment Partnerships Program (42 U.S.C. §12741 et seq.). In the event of a conflict between the requirements of the Home Investment Partnerships Program (including the regulations thereof (24 C.F.R. §92 et seq.) and the requirements of this Agreement, the Home Investment Partnerships Program requirements shall prevail.
NOW, THEREFORE, IN CONSIDERATION OF THE AGENCY'S AGREEMENT TO
PERFORM AS MORE PARTICULARLY DESCRIBED IN THE OPA, AND ITS
OBLIGATIONS UNDER THE OPA, INCLUDING THE OBLIGATION TO MAKE THE
PAYMENTS REFERENCED IN ARTICLE III THEREOF, PARTICIPANT, ON BEHALF OF ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY COVENAJ.�TS AND AGREES AS FOLLOWS:
1. Participant shall commence and complete redevelopment of the "Project" (as defined in the OPA) on the Property for and within the times, and subject to the terms and conditions set forth in the OPA.
2. For the periods covered herein, Participant shall not devote the Property to any purpose not permitted by the applicable provisions of this Agreement.
3. For the period commencing on the Effective Date of the OPA and continuing thereafter until the date that is thirty (30) years after Agency's issuance of its Certificate of Completion for the Project pursuant to Section 417 of the OPA or until the Note (as defined in the OPA) is completely paid off, whichever is later, Participant shall not devote the Property to any uses other than as a residential rental complex in accordance with the Scope of Work set forth as Attachment No. 3 to the OPA and the plans and permits to be approved by the City in accordance therewith, with the units to be rented to and occupied only by households earning fifty percent (50%) or less of the median income, adjusted for family size, for Orange County, according to the income figures prepared by the United States Department of Housing and Urban Development ("HUD") each year, and with each unit to be rented at "affordable rent" (as defined in California Health and Safety Code Section 50053) for households of such income levels, all as more particularly described in Sections 401 and 501 of the OPA.
Additionally, the number of persons permitted to occupy each unit shall not exceed the occupancy permitted pursuant to HUD's general requirements. In determining how many members are included in a household for the purpose of assuring compliance with the maximum occupancy standards, each of the following persons must be counted:
( i) all full-time members of the household; ( ii) all children anticipated to reside in a unit (including, but not limited to, children expected to be born to pregnant women, children in the process of being adopted, children subject to shared custody who will spend at least fifty percent (50%) of their time in the unit, foster children, and children who are temporarily absent from the househoid due to placement in a foster home); and (iii) all live-in attendants. The lease for each unit shall include a provision so FS211781062266-0220\2!03137 .1 06/24/94 2 331
limiting the number of persons permitted to occupy each unit and Participant shall diligently enforce said occupancy restrictions.
During the period of time covered by the affordable housing requirements of the preceding paragraph and Section 501.2 of the OPA, and within the times required in the Schedule of Performance attached to the OPA as Attachment No. 2, Participant, at its expense, shall submit to Agency, or shall cause the property manager to submit, the annual reports required pursuant to Health and Safety Code 33418, as the same may be amended from time to time, with such reports to be in the form prescribed by Agency.
4. Participant shall maintain or cause to be maintained all improvements on the Property in first class condition and repair (and, as to landscaping, in a healthy condition) and in accordance with the approved plans referenced in Sections 401 and 402 to the OPA (includin9 without limitation any approved landscape plans), as the same may be amended from time to time, and all other applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. In addition, Participant shall (i) keep the Property or cause the Property to be kept free from all graffiti and any accumulation of debris or waste material and (ii) keep all trash containers out of public view during nontrash days and otherwise maintained in accordance with applicable City requirements. Participant shall make all repairs and replacements necessary to keep the improvements in first class condition and repair and shall promptly eliminate all graffiti and replace dead and diseased plants and landscaping with comparable approved materials.
Additionally, Participant shall be required to include in the lease for each unit which has a garage assigned to it provisions that (i) the tenant keep the garage clear, accessible, and usable for parking a vehicle inside and (ii) the tenant shall not park a vehicle belonging to the tenant's household in the driveway or on the street in the immediate vicinity of the Property when there is no vehicle in the garage (except for brief periods during which access to the garage is necessary for other purposes). Participant agrees to use reasonable diligence to assure that tenants comply with the lease provisions requiring maintenance of garages and parking of vehicles therein.
In the event that Participant breaches any of the covenants contained in this Paragraph 4, and such default continues for a period of one (1) day after written or verbal notice from Agency (with regard to maintenance and removal of trash containers), five (5) days after written or verbal notice from Agency (with respect to landscaping, graffiti, debris, waste material, general maintenance, or the condition of the garages) or thirty (30) days after written notice from Agency (with respect to building improvements), then Agency, in addition to whatever other remedy it may have at law or in equity, shall have the right to enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of FS2\ ! 78\062266-0220\2103137. I 06/24/94 3 332
entry, Agency and/or the City of San Clemente shall be permitted with due notice and without disturbing the tenants (but are not required) to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by Agency and/or costs of such cure, including a fifteen percent (15%) administrative charge, which amount shall be promptly paid by Participant to Agency upon demand.
The foregoing covenants shall remain in effect for the period from the Effective Date of the OPA and continuing thereafter during the entire period of time that the affordability covenants remain effective pursuant to Paragraph 3 herein.
5. Participant covenants and agrees for itself and its
successors and assigns to its interest in the Property that prior to the issuance of the Certificate of Completion pursuant to Section 417 of the OPA and continuing thereafter during the entire period of time that the affordability covenants remain effective pursuant to Paragraph 3 herein, Participant and such successors and assigns shall procure and keep in full force and effect or cause to be procured and kept in full force and effect for the mutual benefit of Participant and Agency and Participant shall provide to Agency evidence reasonably acceptable to the Agency's Executive Director of insurance policies meeting the minimum requirements set forth below or such greater requirements that are generally obtained from time to time for properties, improvements, activities, and operations similar to those on the Property in the Southern California area:
(i) Comprehensive General Liability insurance with
respect to the Property and the operations of or on
behalf of Participant, in an amount not less than
One Million Dollars ($1,000,000) per occurrence
combined single limit including products, completed
operations, contractual, bodily injury, personal
injury, death and property damage liability per
occurrence, subject to such increases in amount as
Agency may reasonably require from time to time but
not more frequently than every 36 months; provided,
that the percentage increase in coverage shall not
be required to exceed the percentage increase in
the Consumer Price Index published by the United
States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles-Long Beach-Anaheim Average, All Items
(1984 = 100) (the "Index"), from and after the date
the Certificate of Completion is issued, or if said
Index is discontinued, such official index as may
then be in existence and which is most nearly
equivalent to said Index (the "CPI Adjustment") .
The insurance to be provided by Participant may
provide for a deductible or self-insured retention
of not more than Ten Thousand Dollars ($10,000),
FS2\178\062266-D220\2103137 .1 06/24/94 4 333
with such maximum amount to increase at the same
rate as the periodic increases in the minimum
amount of total insurance coverage set forth above.
(ii) With respect to the improvements and any fixtures
and furnishings to be owned by Participant on the
Property, All Risk Property insurance against fire,
extended coverage, vandalism, and malicious mischief, and such other additional perils, hazards, and risks as now are or hereafter may be included
in the standard "all risk" form in general use in
Orange County, California, with the standard form
fire insurance coverage in an amount equal to not
less than the full actual replacement cost thereof,
as the same may change from time to time, and the
additional coverage provided by the "all risk"
coverage in an amount not less than twenty-five
percent (25%) of the replacement cost. Agency
shall be a loss payee under such policy or policies
and such insurance shall contain a replacement cost
endorsement.
All policies of insurance required to be carried by
Participant shall be written by responsible and solvent insurance companies licensed in the State of California with a "Best" rating of not less than B+, Class A or better, in the most recent addition of "Best's Key Rating Guide -- Property and Casualty." A copy of each paid-up policy evidencing such insurance (appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such policy has been issued, providing the coverage required herein, and containing the provisions specified herein, shall be delivered to Agency prior to its issuance of the Certificate of Completion for the Project and thereafter, upon renewals, not less than thirty (30) days prior to the expiration of coverage.
Agency may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Participant hereunder. In no event shall the limits of any policy be considered as limiting the liabili�y of Participant hereunder.
Each insurance policy required to be carried by Participant pursuant to this Agreement:
( i) shall be primary insurance and not contributory
with any other insurance which Agency may have;
(ii) shall contain no special limitations on the scope
of protection afforded to Agency and its officers,
employees, agents, and representatives;
(iii) shall be "date of occurrence" and not "claims made" insurance;
(iv) shall apply separately to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability;
FS2\ 178\062266-0220\2103137 .1 06/24/94 5 334
(v) shall provide that the policy will not be cancelled by the insurer or Participant unless there is a
minimum of thirty (30) days prior written notice to
Agency;
(vi) shall be
qualified
registered
Insurance;
written by a good and solvent insurer
to do business in California and
with the California State Department of
and
(vii) shall be endorsed to state that any failure to
comply with the reporting provisions of the
policies shall not affect coverage provided to
Agency.
In addition to any other remedy which Agency may have hereunder for Participant's failure to procure, maintain, and/or pay for the insurance required herein, Agency may (but without any obligation to do so) at any time or from time to time, after thirty (30) days written notice to Participant, procure such insurance and pay the premiums therefor, in which event Participant shall immediately repay Agency all sums so paid by Agency together with interest thereon at the rate of ten percent (10%) per annum or the maximum legal rate, whichever is less.
6. Repair of Damage.
( i) Obligation to Repair and Restore Damage Due to
Casualty Covered by Insurance.
Subject to subparagraph (iv) below, if the Project shall be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured against by Participant, Participant shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacement of the Project to substantially the same condition as the Project is required to be maintained in pursuant to this Agreement, whether or not the insurance proceeds are sufficient to cover the actual cost of repair, replacement, or restoration, and Participant shall complete the same as soon as possible thereafter so that the Project can continue to be operated and occupied as an affordable housing project in accordance with this Agreement. Subject to Section 703 of the OPA, in no event shall the repair, replacement, or restoration period exceed one (1) year from the date Participant obtains insurance proceeds unless Agency's Executive Director, in his or her sole and absolute discretion, approves a longer period of time. If, however, the then-existing laws of any governmental agencies with jurisdiction over the Property do not permit the repair, replacement, or restoration, Participant may elect not to repair, replace, or restore the Project by giving notice to Agency (in which event Participant shall be required to remove all debris from the Property) or Participant may reconstruct such other improvements on the Property as are consistent with applicable land FS2\ l 78\062266-0220\2 l 03137 .1 06/24/94 6 335
use regulations and approved by the City, Agency, and the other governmental agency or agencies with jurisdiction.
(ii) Application of Insurance Proceeds.
All insurance monies received on account of damage or
destruction, less the cost, if any, of such recovery, shall be applied as necessary to the payment of the cost of repairing, replacing, and restoring the improvements comprising the Project.
Except as otherwise provided herein, if net available insurance monies shall be insufficient to pay the entire cost of such work, or if the damage or destruction shall be the result of a cause not required to be insured against, then Participant shall bear the cost thereof in excess of the net available insurance monies. (iii) Continued Operations.
During any period of repair, Participant shall continue, or cause the continuation of, the operation of the housing complex on the Property to the extent reasonably practicable from the standpoint of prudent business management.
(iv) Damage or Destruction Due to Cause Not Required to be covered by Insurance.
If the improvements comprising the Project are completely destroyed or substantially damaged by a casualty for which Participant is not required to insure against (and has not insured against), then Participant shall not be required to repair, replace, or restore such improvements and may elect not to do so by providing Agency with written notice of election not to repair, replace, or restore within ninety (90) days after such substantial damage or destruction. In such event, Participant shall remove all debris from the Property. As used in this subparagraph (iv) , "substantial damage" caused by a casualty not required to be (and not) covered by insurance shall mean damage or destruction which is fifty percent (50%) or more of the replacement cost of the improvements comprising the Project. In the event Participant does not timely elect not to repair, replace, or restore the improvements as set forth in the first sentence of this subparagraph (iv), Participant shall be conclusively deemed to have waived its right not to repair, replace, or restore the improvements and thereafter Participant shall promptly commence and complete the repair, replacement, or restoration of the damaged or destroyed improvements in accordance with subparagraphs (i) and (ii) above and continue operation of the housing complex during the period of repair (if practicable) in accordance with subparagraph (iii) above.
7. Participant agrees for itself and any successor in
interest not to discriminate upon the basis of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, or rental or in the use, occupancy, or enjoyment of the Property hereby conveyed or any part thereof. Participant covenants by and for itself, its successors, and assigns, and all persons claiming under or through them that there shall be no FS2\ l 78\062266-0220\2103137 .1 06/24/94 7 336
discrimination against or segregation of, any person or group of persons on account of race, color, creed, national origin, ancestry, sex, marital status, or religion in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall the Participant 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, subtenants, sublessees, or vendees in the Property. The foregoing covenants shall remain in effect in perpetuity.
8. Subject to the tenancy/occupancy restrictions permitted by federal law, which may modify the following nondiscrimination clauses, the following shall apply:
Participant agrees for itself and any successor in interest that Participant shall refrain from restricting the rental, sale, or lease of any portion of the Property, or contracts relating to the Property, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(1) In deeds: 11The grantee herein covenants by and for himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any persons claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein
conveyed. The foregoing covenants shall run with the land." (2) In leases: "The lessee herein covenants by and for
himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following
conditions:
"That there shall be no discrimination against or
segregation of any person or group of persons on account of status, race, color, creed, religion, sex, marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased."
FS2\ 178\062266-0220\2103137. I 06/24/94 8 337
( 3) In contracts: "There shall be no discrimination
against or segregation of any persons or group of persons on account of status, race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of land."
The foregoing covenants shall remain in effect in perpetuity.
9. Participant covenants for itself and its successors and assigns, to defend, indemnify, and hold harmless Agency, City, and their respective officers, agents, and employees from and against any loss, liability, claim, or judgment relating in any manner to the development or use of the Property. Participant and its successors and assigns shall remain fully obligated for the payment of property taxes and assessments in connection with the Property.
10. All conditions, covenants, and restrictions contained in this Agreement shall be covenants running with the land, and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by Agency, its successors and assigns, and the City of San Clemente and its successors and assigns, against Participant, its successors and assigns, to or of the Property conveyed herein or any portion thereof or any interest therein, and any party in possession or occupancy of said Property or portion thereof.
11. In amplification and not in restriction of the provisions set forth hereinabove, it is intended and agreed that Agency shall be deemed a beneficiary of the agreements and covenants provided hereinabove both for and in its own right and also for the purposes of protecting the interests of the conununi ty. All covenants without regard to technical classification or designation shall be binding for the benefit of Agency and such covenants shall run in favor of Agency for the entire period during which such covenants shall be in force and effect, without regard to whether Agency is or remains an owner of any land or interest therein to which such covenants relate. Agency shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant.
12. Both Agency and its successors and assigns, and
Participant and the successors and assigns of Participant in and to all or any part of the fee title to the Property, shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements, or restrictions contained in this Agreement without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary FS2\l 781062266-0220\2103137 .1 06/24/94 9 338
under a deed of trust, or any other person or entity having any interest less than a fee in the Property. The covenants contained in this Agreement, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty.
IN WITNESS WHEREOF, Agency and Participant have caused this instrument to be executed on their behalf by their respective officers or agents herein duly authorized as of the date first written above.
ATTEST:
By: m 'c--}/4� fvr_uJ�jSec €:itary (/
APPROVED AS TO FORM:
RUTAN & TUCKER
By: �ieifrey
N?¢: /lOderman
�- Attorneys for the
San Clemente Redevelopment
Agency
FS2\ l 78\062266-0220\2103137 .1 06/24/94 10
Agency:
SAN CLEMENTE REDEVELOPMENT
AGENCY, a public body,
corporat� By:)?.
Its: Mt-<. Var� /
Participant:
MARY ERICKSON FOUNDATION, a
Non-Profit Public Benefit
Corporation
339
STATE OF CALIFORNIA
COUNTY OF ORANGE
ss.
p�onally lrnown te -me (or proved to me on the basis of satisfactory evidence) to be the person(� whose name� is/a� subscribed to the within instrument and acknowledged to me that �she/tln0- executed the same in j:4s/her/th:e1_r authorized capacity(i�), and that by h�er/th�_signature(�_on the instrument the person(� or the entity upon behalf of which the person� acted, executed the instrument.
Witness my hand and
,,� •• ..,. .......... ��."'::" .... � .......... "r'F� : • �:.: � Ot·;,,: __ , -\L SEAL ◄ ► • � KAR:?:l� HOWELL ◄ } • f NO:.,i,Y i
1 .. i::lC-CALIFORNIA
► Ci .. aisGE COUNTY
► My Ccrnm. Expires Jan. 10, 1995
� ........ AAAAA•�•A••••.U.:Ui!�--
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
) ss.
)
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
FSZ\178\062266-0220\2103137 .1 06/24/94 11 340
FS2\ l 78\062266-0220\2 l 03137 _ 1 06124194
EXHIBIT 11A11
DESCRIPTION OF PROPERTY
[TO BE INSERTED]
12 341
Order Ne.: 320-34 ,51-37
EXHIBIT A
Refe�ence �o.: 4279-J
LOTS 49 AND 50, BLOCK 13 OF TRACT NO. 793, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 24 PAGES 1 THROUGH 5 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.
ASSESSOR PARCEL NO.: 058-051-58
058-051-59
Preliminary Report - Schedule A
Gateway Title Company - 2100 West orangewood Avenue Suite 100 Orange, CA 92668
714-978-9800 342
(
legal Oescript·
lot 49 Bl
ion
APN# 058-0
�� k
s
l
3, Tract 793
' •· •.
- 9 and
lot 50, Block 13
APN# 05�-051-58
' Tract 793
Book 24
Pages 1 to 5
LEGAL
DESCRlPTION
EXHIBIT A
sc;.L.=
LCOTICN MAP
I
I
I
343
GOVER�ME�I CODE 27361.7 �ea-f
• I CERTIFY UNDER Pt. .. �ALTY OF PE2JURY THAT THE L,vTARY .SEAL ON THE DO CUMENT TO WHICH THIS STATE�ENT IS ATTACHED, READS AS FOLLOWS:
NAME o F NOTARY: ___ ____,,Lk.......;._a.,__re_"' __ '\ ...;..\ ...;..D_LAJ_-c__,al __ ( _______ _ COMMISSION NUMBER: --------------------
VENDOR NUMBER: ----------------------
DATE COMMISSION EXPIRES: S 'f\-n \ 0 , \ °t'l (o
COUNTY WHERE BOND IS FILED: __ or·__ u.._f\_
:j_L _________ _
PLACE OF EXECUTION: __ ____;O�R=A=N�G=E�·�C=AL=I=F�O�R=N�I=A�-------- DATE =----------=�=--·_:S_-9--=--· �+
�---------
GATEWAY TITLE COMPANY=-----�-=-----WL=-=----·VL(/L ________ _ GOVERNMENT CODE 27361.7
I CERTIFY UNDER THE PENALTY OF PERJURY THAT THE ILLEGIBLE PORTION OF THIS DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED REcA!DS AS FOLLOWS:
PLACE OF EXECUTION: ___ o_RAN_G_E�, _c_ALI_F_ORN _ I__A ___________ _ DATE: __________________________ _
GATEWAY TITLE COMPANY: __________________ _
344
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS.
CITY OF SAN CLEMENTE )
On July 6 ,199 4 , before me, Myrna Erway, City Clerk,
C. Scott Diehl personally appeared, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the persrn(s) acted, executed tl1c instrulli�tl� ..
Witness my hand and official seal.
��fG: C OF SAN CLEMEN .E
I :\clerk\acko(rec. ram
345
REAL ESTATE PURCHASE U''ITRACT AND RECEIPT FOR DEPOSIT
THIS IS MORE THAN A RECEIPT FOR MONEY IT IS I )ED TO 8E A LEGALLY 81HOINO CONTRACT. READ 11 CAREFULLY CALIFORNIA ASSOCIAT"- AEALIO"S' (CAA) STANDARD FORM
□
DATE: 2- - .;, , 19� AT � (1,J Ci i: l=:\_6..b( �--- ----------• Cahlorma RECEIVED FROM jV\Act.", LA HJ:,e!.J 1 (l-lJ'.uc..OJ,�11,•,l�o. 1 1YJflp.�_E'1�"·-��,:.,, rl:, . ...,jJ.qr,� • .l __ (".
BuyerTHE SUM Of ----=---==- ·::C...1....Lr..ul.Lt)L..._'T.....,�c,,u(._• .. u'-'">�·"'=t-!"---'-'"'"--------------- ------------- Dollars s--2-r 41..!l_t._• __ _ as a deposil lo be applied Iowa rd !he
P�RCHASE PRICE OF � £i., ·"' l-lv,-,!_il_('�--1.r,,!_��1 lo,.c:;.,h..J t> ---.... -- Dollars s__b�J L;...L'L�-· _ FOR PURCHASE Of PROPERTY SITUATED IN _____5/}t:L.G__L.£�ll:1,L(f._. COUNTY Of ___(&iW<j·,::
. Calilorn,2
DESCRIBED AS 13}· I"\•; 1J/, C/\,,JA.Jl.d,--_B�L\£.D,l.c.,:,,w..::,._ _____________ ("Property'l
1. FINANCING: THE OBTAINING OF THE LOAN(S) BELOW IS A CONTINGENCY OF THIS AGREEMENT. Buyer shall eel dlllgonlly and In good lallh lo oblalr all applicable financing.
A. FINANCING CONTINGENCY shall remain In elfect unhl (Check ONLY ONE of !he following):
1. 0 (If checked). The designated klan(s) lsJa,e tunded andJor lhe assumption ot e,:1sting f1nanc.ing is approved by Lendec OR 2. 0 (If checked)r __ calendar days after acceplan<:e of !he offer Buyer shan remove the financing contingency ,n wriling wilhin this time. If Buyer fails lo do so, 1hen Seller may cancel this agreement by giving written notice of cancellalion to Buyer B. OBTAJNING OF DEPOSIT ANO DOWN PAYMENT by lhe Buyer Is NOT a conllngency. unless olherwise agreed in wriling.
C. DEPOSIT lo be deposiled O with Escrow Holde� 0 inlo Brokers lrusl account. Of O _____________ _ BY O Personal check. 0 Cashier·s chock, D Cash. or D _____ _______________ _ PAYABLE 10 -------------------------==-------------
10 BE HELO UNCASHEO UNTIL lhe next business day after acceptance of lhe offer, or O ___________ _ D. INCREASED DEPOSIT. wilhin __ calendar days afler acceplance of the olfer. lo be deposiled O wilh Escrow Holder. 0 Into Broker·s lrusl account, or □-----'----------------.................... . $ _lli:..D::tz.......
E. BALANCE OF DOWN PAYMENT to be deposited with Escrow Holder on demand ol Escrow Hofder ....•.. _ ..........•.......
F. FIRST LOAN IN THE AMOUNT OF .. ru. :'fl:'.P...m5. t1,"f.eP.�fi� .. � ... !?.�•.71'i,� ............ ·- ....... . $ _____ _
s I <h: o,_.,
0 NEW First Deed of Trusl In favor of O LENDER. 0 SELLER; or 0 ASSUMPTION of existing First Deed of Trust: or O ------------ ---------------' encumbering the Property, securing a note payable al approximalely $ __ _____ per monlh (0 or more). lo include 0 p<incipal and Interest, 0 inlerest only, al maxirrtum ln\eresl of __ % D fixed rale, 0 inilial adjustable rare. with a maximum fifelime lnleresl rale Increase of __ % °""' lhe Initial rele, balance due in ___ years. Buyer shan pay loan feeslpoinls not to e.,:eed ________ _ I G. SECOND LOAN IN THE AMOUNT OF . . . . . . . . . . . . . . . . . . .. ................ . ·····•······•···········- s ----- 0 NEW Second Deed of Trust in favor of O LENDER. 0 SELLER; or 0 ASSUMPTION of Existing Second Deed of Trust; or D _____________________ _ encumbering the Property. securing a note payable at approximalely $, ________ per month (0 or more). lo include 0 p<incipal and lnlerest. 0 lnleresl only, al maximum in1erest ol __ % D fixed rale. D inilial adjuslable rale. wilh a maximum , lifetime lnlere,;I rale Increase of __ % OYer the lniUal rale, balance due in ___ yea,s Buyer shall pay loan fees/points not lo e,a:,,ed _________
H. TOTAL PURCHASE PRICE. not Including costs of oblainlng loans and othor closing costs •.. ....................... ... , $ �:)C(l,� OQQ_ I. LOAN APPLICATIONS: Buyer shall, wilhln lhe lime spaclfted ih paragraph 268{1). submit lo lender(s) (or lo Seller for a ppr.cable Seller financing). a compleled loan or assumption appllcatlon(s), and provide lo Seller written acknowledgment of Buyer·s compnance For Seller finaocing (1) Buyer shall submil a compleled loan applicallon on FNMA Form 1003; (2) Buyer authorizes Seller and/or Broker(s) lo obtain, al Buyer's expense.a copy ol Buyer·s credil report: and (J) Seller may cancel lhls purchase and sale agreement upon disapproval of eilher lhe appfica1ion or the credil report. by providing to Buyer wrillen nolice with,n 7 (or O ____J calendar days after receipt of !hose documenls.
J. EXISTING LOANS: For existing loans lo be laken over by Buyer. Seller shall promptly request and upon receipl provide lo Buyer copies of all applicable notes and deeds of trust. loan balances. and current interest rates. Buyer may give Seiter wri1ten notice of disapproval within the lime specified in pa,ag,aph 268(5) Differences between estlmaled and actual loan balance(s) shall be adjusted al close of escrow by:
0 Cash downpaymenl, Of 0
Impound accounl(s). If any, shall be: 0 Charged to Buyer and credited lo Seller. or 0 K. LOAN FEATURES· LOANS/DOCUMENTS CONTAIN A NUMBER OF IMPORTANT FEATURES AFFECTING THE RIGHTS OF THE BORRCM'ER AtlO LENDER READ ALL LOAN DOCUMENTS CAREFULLY.
L. ADDmONAL SELLER FINANCING TERMS: The following terms apply ONLY lo financing exlended by Seller under !his agreemen1. The rale specified as the maximum Interest rate In For G above, as applicable. shall be the actual nxed interest rale for seller financing Any promissory nole endJor deed of trust given by Buyer lo Seller shall conlaln. bul not be limited lo, !he following addillonal lerms:
1. REQUEST FOR NOTICE Of DEFAULT on senior loans.
2. Buyer shall execule and pay for a REQUEST FOR NOTICE OF DELINQUENCY In escrow and al any fulu1e lime if requesled by Seller
3. Accelera1lon clause making lhe Joan due, when permitted by law, at Seller's option, upon lhe sale or transfer of lhe Property or any inleresl in it
4. A !ale charge of 6.0% of the installment due. or $5.00. whichever is grealer. if lhe Installment Is not raceived wilhln 10 days of the dale it is due.
5. THle Insurance coverage In lhe form of a jotnl proU1ctlon policy shall be provided Insuring Seller's deed of lrusl lnleresl in !he Property
6. Tax Service shall be oblalned and paid lor by Buyer to notify Seller if property laxes have nOI been paid
7. Buyer shalt provide fire and exlended coverage Insurance during the perlOO of the seller financing. In an amount sv1ficienl to replace all improvements on the Property, or the Iola! encumbrances against the Property. whichever Is less, wilh a k>ss payable endorsemenl in fa111Jr of Seller.
8. The addition, deletion, or subslilutlon of any person or entity under this agreemenl. or to title prior lo close of escrow. shall requile Seller's wri!len con!=-ent Seller may grant or withhold consenl In Sener"s sole d1scre1ion. Any additlonalor subslltuled person or entity shall. If requested by Seller, submit to Seller the same documentation as required for the origin al named Buyl!r Seller and!or Broket!s) may oblain a credit repor1 on any such pe1!;on or enlily
9. If lhe Property contains 1 lo 4 dwelling units, Buyer and Seller shall execute a Seller Financing Disclosure Slalcmenl (CAR FORM SF0-1-4) (C1v1I Code §§2956-2967). if appllcable, as provided by atrangef of credit, as soon as practicable prior to execuliori ol security documents.
M.AODITIONAL FINANCING TERMS: ------------------------ ------------ Buyer and Seller acknowledqe ��
eipl of copy ol lhis page, which ';°nsli!
u� ge I ol _ b _ Pages.
Buyer's Initials ( Ot • � I J \----1 Seller's Initials (_�.) cd'� THIS STANOARO(ZEO DOCUMENT FOA USE IN SIMPLE TAANSAC'TK)N$ HA$ ee Et' APPROVED RY THE CALIA')RNIA ASSCY.:IAT K)t,j OF REALTORS'" IN FOAM ONl y NO RE PRESENTATION IS MADE foS TO THE APPROVAL OF THE FORM OF ANY SUPPLEMEIITS >jOf CURRENTLY PURL ISl<EO BY THE CALIFORNIA ASSOCIATION OF REA! TORS' OR THE LEGAL VALIDITY OR ADEQUACY OF /ollY PROVISION IN /ollY SPECIFIC TRANSACTION IT SHOULD NOT BE USED IN COMPLEX TRANSACTIONS OR WITH EXTENSIVt RIDERS OR ADDITIONS AREAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON AEAl ESTATE TRANSACTIONS IF 'rOU DESIRE LEGAL OR TAX ADVICE CONSULT AN APPROPRIATE F'ROF ESSIONAL The � bws d thd Unrted Sta1e, (t7 U.S Code) Jofbid the unauthorhed �rep,oducilon d itlls lotm by anr me,ns including facsimile or compula,lzed bfrnata -i_ 1993. CAUFOANIA ASSOC1ATION OF AEAITQAS• 525 South VltV"' A,,,eriu9.. los Angeles. Calflofnia 5'0020 AEVlSE081'93
Attachment No. 6
Pae 1 of 7
OFFICE USE ONLY --
AeviC"Ned by Broke, ex Oes•gnee ---. l Dare ______ -··-- •• - ------·---
346
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,y ◄,ess: ____ �1-�--3=--_··-'-/�3��-·_-� �\,J _( ." ,,_.__. -1 .).1.
Al IEO SUPPLEMENTS: Tt>e following ATTACHED supplomenfs are i ualed ,n !his sg,eemen1· ·- ___ l_ • _ _.;
�- �=x..,..,._g=--c��A�D���2�cl"'-=n�L�'-M�--------- -�--------------------- □------------------- □--------
3. ESCROW: Esc,ow Instructions shall be signed by Buyer and Seller and dehve1ed lo _ _5.1,.., ..L,.,.!.IXI ,5,-,,�-c..__r=� ... ,: __ . !he des,gnalec Escrow Holder. within _2__ calendar days atter acceptance of !he oiler (or D et least ___ calenda, days befo,e close of escrow) Buye, and Seller hereby }ointly Instruct Escrow Holder and Broker(s) that Buyer's deposil(s) placed into escrow- or into Broker's I rust account will be held as a good faith deposit towarc the completion or this transaction Release of 8uye,'s lunds 'Nill require mutual. s� release I .
nslr"/itOfls lrom both Buyei and Senes. judicial decision. Of art:J•tra11or award. Escrow shall close D on_________ , 19 ___ , or � within _kQ_ calendar days afler acceptance of the offer Escrow fet- to b':
peid es follows: :S�I>........£.L'.rl..u..y__l��v·1t-:a. f.\t,Jp �����''s . , D ro . . . .l'Ti, 11,;,.("_.._tE...,5.,,, .�ii,�, ... �., 4. OCCUPANC'f: Buyer does, \CJ does not lnlcnd lo occupy Proper1y as Buyer s pnmary residence L. �-,t ;\.I<'- C., f1 ,4 *:. ,:.., t .... , .... ..,. Ut
5. POSSESSION ANO KEYS: Seller shall deliver possession and occupancy of !he Property lo Buye, 0 on !he date of reco,dal<on of !he deed a• 5; ,:,0 �r O no late, than __ calendar days eftor dale of reeo<dalion al ____ AM/PM. or O ___________ _ Property shan be vacant unless O(he™se agreed in writing. U applicable, Seller and Buyer shall execule lnleom Occupancy Agreemenl (CAA FORM tOA 141 or Residential Lease Agreemenl Aher Sale (CAR FORM RLAS-11). Seller shaM provide keys andJo< means 10 operate all Property locks, ma,rooxes. security systems alarms, garage door openers, and Homeowners' Association lacmties.
6. TITLE AND VESTING: BU)'9r shall be provided a cunent prellm•nary (trtle) repo,1 al�� expense. Buyer shall. within !he time specified in paragraph 268(5), provide written notice to Seller of any tloms reasonably disapproved (A preliminary report is only an offec by the fitle insurer 10 issue a policy of title Insurance and may not contain every item attecting title.) N. close of escn:::,•�v: (a) rrtle shall be tr�nsferred by grant deed: (b) title shall be free of liens, except as provided in I his agreement; (c) title shall be free of other encumbrances. easemenls, restrictions, rights, and conditions of record or known to Seller. except for (1) all malte1s shown In the preliminary (title) report which ar4 no< disapproved in wriling by Buy,,r as above, and (2) ---------=-- ----- (d) Buyer shan receive a Canfornla Land TIiie Association (CLTA) policy Issued by c.:, A r c-1,1 A 'f ·r, n... <!. Company at "') I: k I. Ii. R. 1 S expense. (An ALTA-A policy may provide greater protection lor Buyer and may be a van able al the same 0< slightly higher cost than a CLTA policy. The designated tille company can provide lnlormalion, al Buym's request. aboot availability and desirability of other types of lilfe insurance F-o< Seller financing, paragraph 1L(5) provides for a join! prolection policy. TIiie shall vest as designated in Buyer's escrow instructions. (THE MANNER OF TAKING TITLE MAY HAVE SIGNIFICANT LEGAL AND TAX CONSEQUENCES; THEREFORE, BUYER SHOULD GIVE THIS MATTER SERIOUS CONSIDERATION.)
7. PRORATIONS:
A. Real property taxes and assessments, Interest, rents, Homeowners' Association regular dues and regular assessments. premiums on insurance assumec by Buyer. payments on bonds and assessments assumed by Buyer. and ___ __________ shall be paid current and prora1ec between Buyer and Seller. unless otherwise shown in paragraph 7B 0< 7C. as ol: � date of reco,dation of the deed. or O _______ _ B. Mello-Roos and other Special Asse,;smenl Olstrld bonds and assessments which are now a ffen shall be:
t8J paid current by Seifer as of the dale shown In paragraph 7A (payments that are not yet due shall be assumed by Buyer w,1hou1 credit t=-ard !he purchase price); or 0
C. Homeowners' Assoclaflon special assessments. which are now a fien. shall be: 0 paid currenl by Seller as of lhe dale shown in paragraph 7A (paymenls that a,e not yet due shall be assumed by Buyer without credit toward the purchase price); o, 0 _________________ _
0. County transfer tax or transfer fee shall be paid by � � ... _ ..,. _ City transfer tax or transfer lee shall be paid b, SE->-'-E. . Homeowners• Assoclalion transfer fee shall be paid by __ _____ _ E. THE PROPERTY WILL BE REASSESSED UPON CHANGE OF OWNERSHIP. THIS WILL AFFECT THE TAXES 'TD BE PAID. Any supplemenfal lax b,n, shall be paid as follows: (1) lor periods after close of escrow. by Buyer (or by final acquiring party, if part of an exchange). and (2) for periods p,i0< 10 clos, of escrow, by Seifer. TAX BILLS ISSUED AFTER CLOS€ OF ESCROW SHALL BE HANDLED DIRECTLY BETWEEN BUYER I ND SELLER.
8. CONDOMINIUM/P.D.: II the Property is in a condominium/planned de..,,,lopment: (a) the Property has __ assigned parking space(s): (b) the current regula• / Homeowners' Association dues/assessments are S _______ 0 monthly. o, 0 f',l I\ (c) Seller s:1an promplly disclose In writing to Buyer any known pending special assessments. claims. or litigation: and (d) Seller shall promptly requcsl, and. upcr receipt, provide lo Buyer copies of covenants. conditkms, and restrictions; ar1icles of incorporation; by-laws: olher governing documents: mos\ current financ1c1. statement distributed (Civil Code §1365); statement regarding llmiled enforceabllity of age reslridions, 1f applicabf�: current Homeowners' As sociatmn statemen showing any unpaid assessments (Civil Code§ 1368r any other documents required by law: most recent six monlhs Homeo«ners' Assodat1on minutes. if available and _________________________ . Buyer shall, within the lime specified in pa,agraph 268(5-). provid-e wr1ller no<ice to Seller of any Items disapproved. READ PARAGRAPH 7 FOR PRORATIONS ANO TRANSFER FEES.
9. BUYER'S INVESTIGATION OF PROPERTY CONDITION: Buyer shall have the right (o conduct Inspections. investigaliuns. tests, surveys, and other stud1e' ("lnspectionsl at Buyer's expense. Buyer shall, wilhin the times specified in paragraphs 268(2) and (3), complete lhese Inspections and shall notify Selle in writing of any item(s) disapproved. Buyer is slrOfl(}l)I advised to exercise lhis right and to make Buyer's oon selcclion of professionals wilh approprratc qualification· to conducf lnspeclions of the entire Property. If Buyer does not ex�rcise !his right to conducl lnspeclions. Buyer 1s acting against the advice ol Broker(s) 11 any event Buyer Is relying upon Inspections made or obtained by Buyer. BUYER AND SELLER ARE AWARE THAT THE BROKER(S) OO(ES) NOT GUARANTEE AND IN NO WAY ASSOME(S) RESPONSIBILITY FOR. THE CONDITION OF THE PROPERTY. BUYER IS ALSO AWARE OF BUYER'S AFFIRMATIVE DUTY TO
EXERCISE REASONABLE CARE TO PROTECT HIMSELF OR HERSELF, INCWDING THOSE FACTS WHICH ARE KNOWN TO OR WITHIN THE DILIGENT ATTENTIOI ANO OBSERVATION OF THE BUYER (Civil Code §2079.5).
Seller shaft make the Property available for all Inspections Buyer shall keep the Property free and clear o( liens. shall indemnify and hold Seller harmles from all liability, claims, demands, damages, and costs: and shall repair all damages arising from lhe Inspections.
No Inspections may be made by any bunding or zoning inspector or government employee without !he prior wntten consent of Seller. Buyer shall p1 avid to Seller, at no cost, upon request of Seller. comple(e copies of all lnspection reports obtained by Buyer concerning lhe Property.
BUYER IS STRONGLY ADVISED TO INVESTIGATE THE CONDITION AND SUITABILITY OF All ASPECTS OF THE PROPERTY ANO All MATTERS AFFECTINr THE VALUE OR DESIRABILITY OF THE PROPERTY, INCLUDING, BUT NUT LIMITED TO, THE FOLLOWING:
A. Built-in appliances, structural, foundation, roof. plumbing, healing. air condilioning, electrical. mechanical, security, pool/spa systems and component� and any personal property included in lhe sale.
B. Square footage, room dimensions. lot size, and age of Property improvements. (/l.rrf numerical statements regarding these items are APPROX I MAT ION! ONLY and should not be relied upon.)
C. Property fines and boundaries. (Fences, hedges, walls. and other nalural or constructed barriers or markers do not necessarily identify true Property boundarie, Property fines may be verified by survey.)
D. Sewer, septic, and weH systems and componenrs (Property may not be connected lo sewer. and applicable fees may no! have been paid Septic lar, may need to be pumped and leach field may need to be inspected.) E. limilations, restrictions, and requirements regarding Property use, future development, zoning. building. size. governmental permits. and inspection'.
F. Water and utility availabnity and use restrictions.
G. Potential environmenlal hazards including asbeslos, formaldehyde. radon gas. lead-based paint. other lead contamination. fuel or chemical storage tank'. con(amlnated soil or waler, hazardous waste, electromagnetic fields, nuclear sources, and other substances, materials, products, or condilions.
H. Geologic/seismic conditions, soil and terrain stability, suitability, and drainage.
I. Neighborhood or Property conditions including schools, proximity and adequacy or law enforcemenl. proximity to commercial. indus(rial, or agncultur:
activities, crime slalistics, fire protection, other governmental services. existing and proposed transportation. cons(ruction and development, airport no1sr noise or odor from any source. other nuisances, hazards. or circumstances, and any conditions or innuences of significance to certain cuHures and/or religion J. Buyer is advised lo make further inquiries and lo consul( government agencies, lenders, insurance agenls. architects. and other appropriate persons an enlllies concerning lhe use of the Property under applicable building, zoning, fire, health, and safety codes, and for evaluation or poten(ial hazards K. Other:-------------------------------------
Buyer and Seller acknowleme
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Buyer's Initials ( 1------J Selleo's Initials (-J\�.) (tYJ".£Z.l �:F.Cll�U, S GllP)
Attachment No. 6
OFFICE USE ONLY
Reviewed by B1oker Of Design�e �
Oile __ __ -=--_J
347
/ ""1c,ess ______ L.:,l_;,_- J_� __ j
oy_ .. LI IN I-\ ,
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_;C- ERTY: (Initial ONLY paragraph A or B; 00 NOT Ir bolh.) 9 7' it.I• _,1, �
J1I I it:J • 1/J A. SELLER WARRANTY: (If A Is lnltlaDec, DO NOT lnlllal B.) Seller wa"anls lhal on 1he dale possess•on is made ava,lao• lo BIJ)"'&f'. (1) Root sha be free of KNO'NN leaks, (2) buin-in eppti;111ces tincluding he+standing oven and range, if included ,n salt?). plumbing, healing. air conditJOn11"C electrical. waler. sewer/septic, and pool/spa systems, JI any. shall be operative, {3) P,umb-fng systems. shower pan(s), and shower enclosure{s) sh::\11 be free ot JeaJi:s (4) ell broken Of' cracked glass shall be replaced: (5) Property, k'lcluding pool/spa, landSC<lping, and grounds. shall be maintained in subslantially !he same coocM,c, as on the date of acceptance of the otrer: (6) all debris and all personal property not included In lhe sale shall be removed: (7) NOTE TO BUYER: This v-·arranty is limiled to items specified in this paragraph A. Items dlSCCNered In Buyer's lnspecllons which are nol covered by lh1s paragrac-• shall be governed by the procedure In paragraphs 9 and 26.
NOTE TO SELLER: Disclosures in lhe Real Eslale Transfer Disclosure Slatemcnl (CAR FORM TDS-14). and ,Iems d•scovcred ,n Buyers Inspections. oo N01 eliminate Seller's obligations under lhis warranty unless spec1rical1y agreed in wrihng.
OR
B. "AS-IS" CONDITION: (11 B ls inftlalled, DO NOT Initial A.) Property is sold "AS-IS." in its presenl condilion, w,H1oc warrancy Seller shall not be responsible for makmgcorrectionsor repa,rs of any nature excepl:(1) Struclural pest control repairs, 1f applicable under paragraph 19 and (2) ___________________________________________ _
Buye, ,etains lhe righl to disapprove the condilion ol lhe Property based upon ,terns discovered ,n Buyer's Inspections under pa,agraph 9. SELLER REMAINS
OBLIGATED TO DISCLOSE ADVERSE MATERIAL FACTS WHICH ARE KNOWN TO SELLER AND TO MAKE OTHER DISCLOSURES REQUIRED BY LAW
11. TRANSFER DISCLOSURE STATEMENT: Unless exempl. a Real Eslale Transfer Disclosure S1aIement ("TDS') (CAR FORM TDS-14) shall b• compleled by Seller and deliYered to Buyer (Civil C-Ode §§J.!02-1102.15). Buyer shall sign and rel urn a copy ol lM TDS to Seller or Seller's agenl : (a) 0 Buye, has received a TDS prior to execution of the offer, OR (b) U Buyer shall be provided a TDS within ..J..O_ calendar days after acceplance of the offer. 11 lhe TDS Is delivered lo Buyer after lhe otter is executed, Buyer shall have lhe righl lo lerminale this agreemenl within lhree(3) days after delivery in person, or five (5) day, afterdef,very bydeposil In the mail by giving wrlllen hOllce of \ermlnalion lo Seller or Seller's agenl DISCLOSURES IN THE TDS DO NOT ELIMINATE SELLER'� OBLIGATIONS, IF ANY, UNDER PARAGRAPH 10.1
12. PROPERTY D(SCLOSURES: When appllcable lo 11\e Property and required by law. Saller shall provide lo Buye<, at Seller's expense. the lollowing disclosure, and inlormalion. Buyer shall lhen. wilhin lhe lime specified In paragraph 268(5) and (6). lnves1igale lhe disclosures and inf0<malion and provide wrillen not,c, lo Seller of any item disapproved pursuant lo A-C and E1(b) below. '
A. GEOLOGIC/SEISMIC HAZARD ZONES DISCLOSURE; If lhe Property is localed in a Special Studies Zone (SSZ) (Public Resources Code §§2621-2625) Seismic Hazard Zone (SHZ)(Public Resources Coda §§2690-2699.6). o, in a locallydesignaled geological, seismic, orolher hazard zone(s) or area(s)whe,e disclosure is required by law, Seller shan, within the lime specified In paragraph 268{7), disclose in writing to Buyer this fact(s) and any other informalior required by law. (GEOLOGIC, SEISMIC AND FLOOD HAZARD DISCLOSURE (CAR FORM GFD-t4) SHALL SATISFY THIS REQUIREMENT) Construci!or or development of any s1ructure may be restricted. Disclosure of SSZs and SHZs is required only where the maps, or information conlained ,n the maps are "reasonably available" as defined in Public Resources Code §§2621 9(cKt) and 2694(c)(1).
B. SPECIAL FLOOD HAZARD AREAS: II the Property Is localed in a Special Flood Hazard Area designaled by lhe Federal Emergency Managomenl Agenq (FEMA), Seller shall, wilhin lhe lime specified in paragraph 268(7), disclose this lacl in writing lo Buyer (GEOLOGIC, SEISMIC AND FLOOD HAZARC DISCLOSURE (CAR FORM GFD-t4) SHALL SATISFY THIS REQUIREMENT) Governmenl regulallons may impose building restrldions and requiremenlS which may substantially impact and limit construction And remodeling of lmprOYemenls. Flood Insurance may be required by lender C. STATE FIRE RESPONSIBILITY AREAS: If lhe Property ls localed in a Slale Fire Responsibility Area, Seller shall. wilhinll1e lime specified in paragraph 268{7). disclose this fact in wrillng to Buyer (Public Resources Code §4136) Disclosure may be made In the Real Estele Transfer DisclosurP Sl�lement (CAR FORM TDS-14). Government regulations may Impose building restrictions and requiremenls which may substanlially Impact and fimit conslruction and remodeling of Improvements. Disclosure of these areas is required onty if lhe Seller has actual knowledge that the Property is located in such an area or if maps of such areas have been provided lo lhe counly ess�ssor's office
0. MELLO-ROOS: Seller shall make a good faith effort lo obtain a discJosure notice from any local agencies which levy on the Property a special tax pursuanl to the Mello-Roos Community Facilities Act, and shall dellve, lo Buyer any such notice made available by !hose agencies.
E. EARTHQUAKE SAFETY:
1, PRE-1960 PROPERTIES: 11 lhe Property was built prl°' to 1960, and conlains ONE-10-FOUR DWELLING UNITS ol convenllonal lighl frame construcloon Seller shall, unless exempt, w�hin lhe time specified in paragraph 268(7), prOYide to Buyer: (a) a ccpy of 'Toe Homeowner's Guide lo Earthquake Salely.'' and (b) wril1en disclosure ol known seismic deficiencies (Governmenl Code §§8897-8897.5).
2. PRE-1975 PROPERTIES: If lhe Property was built prior to 1975. and conlains RESIDENTIAL, COMMERCIAL. OR OTHER STRUCTURES cons1rucled of masonry or precasl concrete. with wood frame floor.:; Of roofs, Scner shall. unless exempt. within !he lime specified in paragraph 268(7). PfOVkle 10 Buyer a copy of "The Commercial Property Owner's Guide lo Ear1hquake Safety" (Governmenl Code §§8893-8893.5).
3. ALL PROPERTIES· If the booklels described In paragraphs E1 and E?. are not required, Buyer is advised that !hey are available and conlain imponanl information that may be uselul for All TYPES Of PROPERTY !Civil C-Ode §§2079B and 2079.9).
F. SMOKE DETECTOR(S); Slate law requires lhal residences be equipped wilh operable smoke deleclo1(s)h Local ordinances may ha� addiliQnal requi,ements Unless exempt, Seller shall, prior lo dose of escrow, provide to Buyer a wnllen stalement of compliance and any other documents requuPd, in accordance wilh applicable stale and local law, (SMOKE DETECTOR STATEMENT OF COMPLIANCE (CAR FORM SDC-11) SHALL SATISFY THE STATE PORTION OF THIS REQUIREMENT.) Addilional smoke deteclor(s), II 1equired. shan be instaHod by Seller at Seller's expense prior to close of escrow G. ENVIRONMENTAL HAZARDS BOOKLET: The booklet, "ErN1ronmcnlaf Haza1ds:Guide for Homeowners and Buyers.'' is published by lhe California Departmenl of Real Estate, and contains informalion lhal may be useful lor ALL TYPES OF PROPERTY (Civil Code §2079.7).
H. LEAD BASED PAINT: Buyers obtaining new FHA-insured financing on residenli.al proper1iescons1rucled prior lo 1978 arc required lo stgn a le�d pcunl disdosure form (NOTICE 10 PURCHASERS OF HOUSING CONSTRUCTED BEFORE 1978 (CAR FORM LPD-14) SHALL SATISFY THIS REQUIREMENT) I. OTHER: ____________________________________ ____ _
13. GOVERNMENTAL COMPllANCE: Seller shall promplly d;sclose lo Buyer any improvements. addilions. allerat!ons. or repairs ("lmprovemenls") made by Seller or knO"Nn lo Seller to have been made withou1 required governmen1al permits. final lnspeclions, and approvals In addition. Seller represents Iha! Seller has no knowledge ol any notice ol viofalions of Cily, Counly, Slale, or Federal building, zoning, fire. or heallh laws. codes. stalutes. o,dinances. regufallons. or rules filed or Issued egains1 the Property. If Seller receives notice oris made awc=1te of any of lhe above v,olalions prior to close of escrow, Seller shall Immediately notify Buyer In writing. Buyer shall, wilhln lhe ltme specified In paragraph 268(5), provide written notice to Seller of any items disapproved_
14. RETROFIT: ComplianCe with any minimum mandatory governmenl relrofit standards. Including but nol limiled lo energy and utifily elficiency requorements and proof of compliance, shall be paid for by D Buyer, l&J Saller.
15. FIXTURES: All existing fixlures and fillings that are allachedtolhe Property or for which special openings have been made are INCLUDED IN THE PURCHASE PRICE (unless excluded below) and are to be lransferred lree ol liens. These include. but are not limiled lo. electrical. fighling. plumbing and heating lirtures. fireplace Inserts, solar systems, built-in appliances, screens, awnings. shulters, window coverings. altached floor toverlngs. television anlennas/salelli1e dishes and relaled equipment. privale Integrated lefephone systems, air coolerslcondilioners, pool/spa equipment. water softeners �f owned by Seller). securilysystems/alarms �I owned by Seller). garage door openers/remote conlrofs. allached foreplace equipmenl, malibox. In-ground landscaping including trees/shrubs, and ITEMS EXCLUDED:
, 16. PERSONAL PROPERTY: The following items of personal property, tree of hens and without warranly ol condihon (unless provided In paragraph IOA)or filness I for use. are included: P1!12 ;;G IV e ,-L.-:c!IZ.r- 11· s c-rv1 1<. w _______________ _____ _
17. HOME WARRANTY PLANS; Buyer and Seller are informed lhal home v.arranty plans are available These plans may provide additional protP.cl,on and benefit lo Buyer and Seifer. Broker(s) do not endorse, approve. or recommend any particular company or progIam Buyer and Seller elect (Check ONLY ONE); 0 To purchase a home warranty plan wilh lhe following optional cove,age ------ ------------- - · al a cost noc lo exceed $, _____ , lo be paid by ___________ , and to be issued by __________________ Company, OR
� Buyer and Seller elect NOT lo purchase a home v.a11anly plan,
18. SEPTIC SYSTEM: (II lnftlalfed by all parties.)
Buyer'• lnttW. Sener·• lnl1t.la
0 Buyer, D Seller shall pay to have septic syslem pumped and certified Evidence of compliance shall be provided lo lhe Olher party before close of "5Crow 0 Buyer. D Seller to pay lo, sewer connection If required hy local o,dinance.
Buyer and Seller acknowle�
e !
elpt of copy of this page, which c
�
n,J!
t�e�g• 3 o(,-� P.ages:
Buyer's lnilials ( • 'I ( ___ __, Seller's lml1als (l.,_,_,__�) 1,1!..-':l::.1� 81lOl(ER'S COPY.
Attachment No. 6
OFFICE USE ONLY - - -] �
Rcviewer1 by Broker or [email protected] __ _ l.:J
('lrJIP . , . _ ��
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348
l�1 1 lM�
Vb}Jf.
A. Sefforthaff, -..�thin !ht �n\l lp&Clhd In pa•aQraph �(81, prOvldo lo l!uyor • eurr•nl wrllltn Wood Ootl<Oy ng Po ... Md O<Gonism, bc�cllon A,�,,_. than be at 11\4 uponu or O Buyer. 6iJ 81llor. lo b@ perlo,mM C>y . _______________________ _ , •" S!rllciur1I Pt 1I Conlrol Comptny, eovt<lr,g th• ma,n building and (II chocktd):
0 dalachad porage{t) or ca,porl(t): 0 lhe loUQ>l-lng other ,1,ucluru on th• Propeny· ----------------- - 19. II rtQUUl&d t-y Buyer or Soller. Iha repo'1 ehan 1ep1nl•ly Identity each recommendation lo• co11oc1i-. v.ork •• lono .. s '"$ecilon 1'': 1nlar1stion or Infection which i• 1vtdent. ·-sec1!on 2": CondlUol\t Iha! 11t pr aunt which 110 deemed likely to lead lo ,nfo11,11on 0< lnlec11M C. 11 1\0 ;r,l•ttailon or lnlecllon by wood derlroying poll °' organl1me is lound, the reporl 1htll ln,:tude a wrlllen Cot1lflce1ion lh•' on IM '"•pee•,:
r>o tvldeno. ol 1ctlve inl111111on was lound {But\ntu and Proleulone Cod, §8619(1).)
0. \Vor1( ltcommendtd lo correct condltlona <!at crib� In "SecHon I" shall be •I the upon1e ol O Buret. @ Setter.
E. Worlr recommtndtd to co,rtel condl!lont ducrlbtd In "Stcl;on 2." It rtqu .. ttd by l!uyer, ehal! be al the expense ol O Buvtr [J Salltr I'. Wot� 10 be �1ormtd af Selltr't ope nu may bt ptrlo,med by Sene, or through Olh<l •I. provld1d lhtl· (a) all roQulred perr,,1\1 end fine! tn,ptC-c-:
ob!tln�d. Ind (b) vpon cornp!o1ton ol repalrt a "'111len Certlf,callon ta luued by a registered S1ruc1u•al Put Ccn1,01 Company shov,lno •. ln1p1eted property '11 now frtt ol tvldenct o! aett-. tnlu1111on or lnlecllon " (8u11neu Ind Prcleulona Code •85l9(b).)
0. II "1•�ction ol lnacct1tlble lflll i& ••commended In lhe r•port, Buyer hu !he opllon lo aceepl and approve the ropon, o, r0Qu•1l In ,.,,1Fn-; 5 (or O ___ ) calendar dfyt ol receipt ol tht report the! lurth�r ln1ptctlon t)Q made BUYER'S FAIL URI: lO NOTIFY SELLER II� WRIT ING OF , REQUEST SHALL CONCLUSIVELY BE CONSIDERED APPROVAL Of THE REPORT. JI further ln1pec1ion 11comm1nd1 "Secllon 1" and/or "S¥-1 corr&ctlvt worl:. 1uch wor�. and lh& lntpec11on. onfry. Qnd closing ol !he lnaecenlble areu. thell be at th• expenst ot rho ropecllvo par1y do11��• puegr&pht (A/. (0) endJo<(E) lino lnfesle.llonot !nlecilon It found, IM 1n1pectlon, entry, 1nde�1n9 of lhe !naccuslblt ,,. .. shall be •! the txpen,e cl':' H. lnt�Cl,0nt, CO'l�lve-..«k, and certillcallon ur>der 1h11 ptragraph Iha� no! Include roof CO'v9rlnge. Read per1gr1ph QA concern;ng lr>•pect•c-n nt rool � I, Won: shall be performed In I akHllul mtnnerwllh mate,i.1, of comparable quallly, end !h•II Include repalf or lea king 1h0wer ,11n& •nd pe�, and replac• of mu end other ma1erlal1 removed fo, ttp1lr. It It ut>derelood lh&I u1ct rolollltlon of 1ppurtnc1 or cotme!le Html tol!owln9 all such ""'r� Is nor inc • J. Fvnds tor ..,:,1kagrud In w<ntng tobe perlormfd ,�arclott of uc,ow 1han bt held In escrow and dl1bu11ed upon recelp\ ol a written Cer1'tleallo11 I!-.; fnspt¢1td property 'ii now frte of evldeno, of active lnfulatlon or irlf&cllon;' (Bualntu and Profenlon1 Cod• •8S19ib).) K. OlMr: _________ ------------------------------------ 20, SALE 01' 8UYEA� PAOPEFITY: {1l lnl\11ll1d by 111 plrtlu.) t.,pc� lok1... l11t,1 lnRla!o
Thlt tg,ttm.nt It ccnnng,nt upon !he clote of ncrow ol Buyu't p,operty doscrtbed u ___________ _ al!utl•d In ___________________ Buyar't properly Ir: 0 Ll•!ed with ____________ Ccm-:: . 0 1nuc-No _______ wl!h ____________ Comp1ny, 1c�tduled locloee uc1owon _______ . f�_ A. (Chtck ONE:) 0 Sentr ohan have lht right to continue to olfer !ht PropMy tor eale. 0 Saner !hall NOT have lh• rig hi lo continua to offer tht Pro,.:,, lor tale (o(her than lo< back-up offtra), 0 Siller eh�II NOT have Iha tight lo eonllnut to offer the Prop,ny lo, sale (othtr than tor b�c�.-up c-�, un!U __ calendar daya 1her acctplanc, ol !ht offer.
II, If Saner ha& !hf right lo continue lo oller the P�perty lor ul• (other then lo, back-op o{ltrs) and Seller accep11 1nclher offer, Sellor eh�n give Buyor .m not;c. to (1) remove th;, conllnij1ncy in wr�;ng and {1) comply with !ht lo"owlnQ tddi1lon1I roQulrei!'entt __________ _ N Buyer lane lo c»mplett thou 1cttont w1tMn __ hourt or __ calendar dey1 •"•r recelpl or 1ueh Nollce from Seller. rnen 1n1, e;•eeme,tt er>d , tterow than lffi!llnale and !ht depoall (leas cMtt Incurred) than be returned to Buyer.
C. I! Stfftr�• no, gl.,,. the Notice above and Buyer't property doe a no! clOu ncrow by tho dtle tpecitledln paraoraph 3 lcr c!c>,e of •,c•ow o! lhl• Pro� lho-n !tither Se"•• or lluyt< mty cal'!Col lMt •o•eemonl and any eecrow br olvir,g lhe oth•r party .,.,.;iten no\ice of eancen11lon. and lh• Buy,,•• dep0,11 r .. eot1a 11\Currad) lh«ff bl relurn•d ,o Buye,.
Z1,
turt,·,
c-.NCELLAT>ON OF PRIOR SALE/BACK-UP Ol'FER: (It lnlila!l,d by all part!u.)
1..,ftf.,_ ltMt'I ""1'-'I
iiuytr undent1nds. thal s,ner ha, en(e,td Into 01'\e 0( more cootr1:c1, to ee-11 !hf Property lo I diHersnt buyer(I), The parfltl 10 any prior 1110 "'�Y mvh.Jllly •Q.' 1 lo modl!y oumend Iha term, ol th•! &<(a). Thia pgrtomenl It con11ngent upon the .,,1uen concenatlon ol lhe pr�ou1 purchaot and u10 1greemenlfsl end a · i.lattd uerOW(t).
(Ch<K:k ONLY ONE of lh4 lol!owlng.l
0 CANCl'LLATION OF PRIOR SALE· If WTilten oancell1t1011 of the prevlout &11r1emenl(1) ;, nol received on or before _________ ____ __ . 19_ lhan tlfhtr Buyer o, 8&n1r mty cancel 11,1t a111eem1n! and any esorow t,y giving !he 01htr party lo this 111retm1n1 w1inen notice or eencallalion. Bv�,•, d!pcc '"' eo,11 lncurrtd, than then be returned lo Buyer. U BACK-UP OFFER: Tltl1 It I back-up offer In back-up potltlon No. ··-- BUYER'S DEPOSIT CHECK SHALL l!E HElO UNCASHED un!II a CC'PV or 1► wrltttn cane,nauon{t) �lqned by et! panlea lo the p,lor ule(a) 18 provided lo Buyer Unlll Buyer re-celvu a copy or ,ix:h cancella!lon{s). Bure• may c1ncel 1� •�t11men1by l)rOV!d!ng wrmen notic1 lo Seller. Buye(& deposit shall then be returned lo Buyer AS RELATES TOA BACK-UP OFFER, TIME PERIODS !N THI: AQREEMEN'r WHICH ARE STATED AS A NUMBER OF DAYS SHALL BEGIN ON THE DATE SELLE I'\ OlVES lO BUYER WRIT TEN tiOl ICE THAT ANY PR1o=· CONTAACT(S) HA3 BtEN CANCElLED If CLOSE OF ESCROW OR ANY OTHER EVENT 19 SHOWN A9 A SPECIFIC CATE, THAT DAT E SHALL NOT 8' EXTENDED UNLESS BUYER ANO SH LEA SPECIFICALLY AGREE IN WAITING. 22, COURT CONFIAMATION: (II lnttlallod by 111 p1rtlet.J Thlt agrtt"'*'1! i1 contlnptn1 upon courteoanrmttlon ono• t>tlo,,_____ ·- . 19 __ . Th• court may aHow �en. compall!lve blddln<; !ff1/11irrgtn1he l'roperty btlng 1old lo the htghtsl bk!dtr. !lvytr hU been e.dvlaed lo be in cour, whto lhe otfe,;e contidertd for cooflrmallon Courl conllrmatic- mty bl �qutl'9d In• probllt. conteMlorehlp, guardl&nthlp, teetlverahlp, benkruptey, or o<her proc .. d<ng Buyer underslanda that Iii<? Properly may conlln�,. 10 bt mtr\cal&d try 1'rO�t} ,,,., oeh<lrt. and !hat 8�1(1) and oth&<1 may roproun1 other eompot�iv• bidders p,1or to and al the covrtconfitmat,oo. tt covrt conn,mal>Ot" le nol obtained by d1l1 1ha.m 1boYt, 8u)'9r may cancel 1h11 1gre1ment by g1vtn11 wrintn nollce of cencellatlon to Stlltr.
23. NOTICES: N<>li0t1 given purtua/11 to thll agrttment 1h1t!, unl•u otherwlu rtQU1rad by law, bt deemed delivered lo Buy11 when peroonally r,eotvod t,y 8uytr 01 __________________ , who It tuthorlrtd td ree1Jvt ;1 lot Buyu, or lo Sell11 when pereonally reeelvtd b; IStTitr Of------------------· who It 1uthorl1ed lo ree.tv,r II for Seller. Oeli>-6ry mQy be lh person. by me�. or faetimll•
24. rAX WITHHOLDINQ:
A. Undtr !ht Fotalgn lnvttlmtrrl in Aul Prop6rty lllx Act \
FIRPTA/
. IRC IU45, every Buyer muef, unleu •� exemption appliOI, deduct 1n<! .. ithhold 10% o< t11t gro11 a<t p,lct lrom 8tn"'' procetd1 aod send I to the nltrnal Revenue Service. It tne S,110, It 1 ··1oreion person" under Iha! ,111u1e I. In lddttlon. under C1nlornl1 F\.-,enut and 'Taxation Code §618605 and 2813l. tVflry Buyer must. unlen an 01mpHon eppliu, deduci and �-llhhold 3-1/3'1', ol the groa1 111le1 prlct from Se!�r·e procetdt and und ii lo lht Franchlu Tl, Boa Id II the Seller hu a 1u1 known •dd1es, oullldt ol Cetlfornla °' If the Seller't pnx:1ed1 W1R bt peld to a financial Intermediary of the 9entr.
C. Ptn1Nk!1 may!)e lmpottdon • 1upor\Slble p&rty1or non-tompllan<>• with !he rtQulrerntnl1 ol thus ,tstute, end related ,egul•llont Seller and Burer aQ•et 10 IXtt'lllf and dtl!Ytr lny lnflrumen!L 1Nldavtt, t1alemell1, 01 ln.ttruc11on ruJonabty ntcueary lo carry out these raqulrementt, end lo wllhholdlng o/ lu:
Ullderl� st1MUII requlttd. (SELLt;A'S AFFIDAVIT OF NON-FOREIGN SlATUS ANO/OR CALIFORNIA R£SIDENCY (CAR FORM AS-14). OA BUYER'S Al'FIOAVIT (CAR FORM AB-11), IF APPLICABLE, SHALL SATISFY THESE REQUIREMENT&.)
25. RISK OF LOSS; Excepl &1o(h1rwlH p,vrld6d In !hit tprtemtnl, tn ri,kollo,s lolhe Prorerty which oceurg aNer \he otter It •cc•f)led ,ha! bt bo<M by $9nc, unrn ,,tt1o1 t!\t \�� hat betn lrtntr.rr.d, or pooenlon hu bean Qlvtn lo Buyer, l'Nchl'Vtl oewr, Iii'!\ Ariy dtmipt 1011m119 f Jl (one) �01 reu ot the purtllue p�ce then bl! reo•"odby Ssne, In tccordanc1 -..llhp&rlQfll)!l lO,H ,wl!ctble. Klht l&ndor lrnp��nltlolht Proptrty 11e �ulroy&dor ma1e,ialtydernaQod1>'1o! to1ran1rtr�1 in1e lnan amountt•Cffif>OQ 1 0(on•l"1> ot lhe pv1chase prlce. lhtn 811)'fr 11it,havt thl opllo!I ID tffher lt1min1t1 1h11 agrumenl Jod recovtr tht lull dtpo•� or purcha!I the Prop•�y ;,, ht ltlen p,uent condlt<in Any txpt<te, pal:! by Buyt' or Stilt• lot trtdll 1tpor1l, 1P9rsl11it. li!l1 txamintllon, or ln1ptctlo111 ot 1ny k,nd ahtfl 1e1Nln Jhel pa�y'• rttponsl!Jftij)'. It 911)'!' el1e1110 purehuo !ho P101>trty end lhe loss 1, �••d t,yln1urtJ\Cf, Se!ltrJhtff Utlg,,10 8\/)'t' an ln1u11nct prooUdt C(M1inglh• Iota n1r,nst11 olt;llt &ndpoiHll<indo � occur ti lht .amtt,mf, 8UYEAANO SEllEA ARE AOVISEO ,0 SEEK .l.OVICE Of THE:JA INSURANCE ,t.OYISORS u to lhe lnt11<anc1 conuQVfnm lllerool Attachment No. 6
,:.,• .. ' .. .
r--OFFICE USE ONLV - �
I R.,,1,�«1 by 9..,1,.., Of ou,gntt· __ � 1.:.1·
349
/;:;��:��NCIES/COVEN·A�j/ ME��D-s �� SAr,1s·F��;1�;R·F�OVAL,'";'1ME FRAMES. DISAPPROVALIAPPRO�;L:
ETHOD OF SATISFYING�EMOVING CONTINGENCIES· Ccnr,nger ,re lo be salosliP.<l c" ,cmoved t>y one or rhe rollow,ng no�ll1ods I PASSIVE METHOD: IF BUYER FAILS TOGIVE WAlrTEN NOTICE OF ors NAL OF 11EMSOR OFCANCELLAl lONOF TH:S AGREEMENl WITHIN lHE s1° TIME PERIOOS SPECIFIED IN THIS AGREEMENT(excepl r.nanc:ingconlingeocy ''t_,agraph 1A(2) i,; ched<ed). THEN BUYER SHALL CONCLUSIVELY BE OEEMED TO f'' , COMPLETED ALL INsPECTIONS ANO REVIEW bF APPLICABLE OOCUMENb ANO DISCLOSURES MIO 10 HAVE MADE AN ELECTION TO PROCEED WlTH :
j TRANSACTION WITHOUT CORRECTION OF ANY ITEMS WHICH THE SELLER HAS NOT OTHERWISE AGREED TO CORRECT OR I (2) ACT
-
IVE METHOD: IF BUYER ANO SELLER IN111Al THIS PARAGRAPH. THEN PARAGRAPH A(I) SHALL NOT APPLY. 8\fJ��• lnNl■ll :Sf41��•1•• /)/
! �� I� / • �t/tl' BUYER'S DISAPPROVAL OF ITEMS OR REMOVAL OF CONTINGEIICIES SHALL BE IN WRITING (ercepl finan-:
conlingency, ii parag,aph lA(l) 1s checked) IF BUYER FAILS m REMOVE OR WAIVE ALL CONTINGENCIES IN WRITING WlTHIN THE STRICT TIME PERIO 1 SPECIFIED 1N mis AGREEMENT. THEN SELLER MAY CANCEL THIS AGnEEMENT BY GIVING WRITTEN NOTICE OF CANCELLATION 10 BUYER.
B. TIME FRAMES: Buyer and Seller ag,ee lo be bound by lt>e following lime periods:
BUYER has the following number of calendar days lo take the aclion \) specified. BEGINNING ON THE DATE OF ACCEPTANCE OF THE OFFER:
�� ,'.. '2i!__ _I Loan Applicalion(s) (submit to lender(s) for new loan(s) and , f l1,;t (µ � :��;��k
n
����::g:�':, �=I
:;,� �:::: ��lanci
ng). submil
/V C Z..O ·\ l )', � , 2. Buyer Inspections ol Property (complete inspedions. ercepl GEOLOGIC, and give notice ol disapproval) (Para 9)
3. ')..Q Buyer Inspections of Property (complete GEOLOGIC lnspedions and give notice of disapproval) (Para 9)
4. BUYER has lt>e follov.ing number of calenda, days lo DISAPPROVE the items listed below, BEGINNING ON THE DATE OF BUYER'S RECEIPT OF EACH ITEM:
5. J_Q__ Existing Loan Documents (Para 1J),
Preliminary (TIile) Report (Pa'1! 6),
6. Condominium/Planned Development Documenls (Para 8).
Geologic/Seismic/Flood/Slate Are Zones/Areas (Pa,a 12A-C).
Governmental Notices Disclosure (Para 13)
c. DISAPPROVAUAPPROVAL OF ITEMS:
SELLER has !he following number ol calendar davs to PROVIDE Buyer, as apphcable. !he lnlormalion lisled below. BEGINl<ING ON T DATE OF ACCEPTANCE OF THE OFFER:
7. ...12... Geolog<dSe1sm1c/Flood/S1ate Fire ZoncsJAreas Oisclosur ,f applicable (Para l2A-C). Homeowner·s Guide
Earihquake Safely andlo< Commercial Pro�rty ()wne
Guide to Earthquake Salety (Pa,a 12E)
8. 15... Pest Control Report (Para 19)
9. The items liSlad below. as applicable. shall promptly be ,equeSled and up receipt provided to Buyer·
10. histing Loon Documenis (Para 1J),
11. P,ellminary (Title) Report (Para 6),
Condominium/P1anned Development Oocuments (Para
Mello-Roos Disclosu,e (Para 120)
(1) II, wilhin lhe time specified. Buyer provides written reasonable disapprOYal to Seller of any item lor which Buyer t>as a cfisapproval nght, Seller shall respo In writing within __2_ calendar days after receipt of Buyers noHce If S8lle, is unwilling or unable to conecl the items disapproved by Buyer, then Bu) may cancel this agreement by giving written no«k:e of cancellatiOfl to Seller within _!Z_ calendar days {afler receipt of Sellers response. or alter expirati of the lime for Seller's response. whichever occurs firsl). in which case Buyer's depo5't shall be rel urned lo Buyer. ff paragraph A2 is inillalled, lhen Bu) shan provide Seller with a wril1en notice of either caocef\ation or election to proceed. tf Buyer clec.1s lo proceed with the lransadion without Seller's correct 1 of items, Buyer shall assume all liabilt1y, responsibility, and expense for rep..1irs or corrPctions. including lhe expense of compliance with governmental ag€n requirements. This does nol, however, relieve the Seller of any contractual obligations 10 repair or coned i1ems otherw1se agreed upon (2) II a MELLO-ROOS DISCLOSURE notice under parag,aph 12D is delive,ed lo Buyer aller lhe offer is execuled. Buyer shall have tt>ree (J) days aller deliv< in person or five (5) days after delivery by deposit In the ma,I lo give written nolice of lermination lo Seller.
0. FOR ALL TIME PERIODS:
1. Buyer and Seller understand thal lime periods can be changed only by mutual wrinen ag,eemenl
2. II this is a back-up oUer (paragraph 21). time periods which are shown as a number of days beginning on lhedale of acceptance or lhe offer shall insle begfn on lhe dale Seller gives lo Buyer wriUen notice lhat any prior conlract{s) has been cancelled
27. FINAL VERIFICATION OF CONDITION: Buyer shall t>ave the r;ghl to make a llnal inspection ol lhe P,operty approximately 5 (or O __ _ I calendar da prior lo close of escrow, NOT AS A CONTINGENCY OF THE SALE, but SOieiy to conlirm lhat: (a) Seller has completed aneralions. repai,s. replacemenls. modlflcalions ("Repairs") as agreed in writing by Buyer and Sellec. and has complied with warranty obligahons. if any, in paragraph 10. and (b) 1he Property otherwise in substantially lhe same condition as on the date of acceptance of the offer. Repairs under this agreement shall be compleled prior to close or escrc unless otherwise agreed in wrillng, and shall compty with applicable building code and permit ,equiremenls Materials used shall be o( comparable quahly exisling materials.
28. MEDIATION OF DISPUTES: BUYER AND SELLER AGREE TO MEDIATE ANY DISPUTE OR CLAIM BETWEEN THEM ARISING OUT OF THIS CONTRA! OR ANY RESULTING TRANSACTION BEFORE RESORTING TO ARBITRATION OR COURT ACTION Medial•on ;s a process in which parties allemp( 10 resol a dispute by submilting it lo an impartial, neutral medialor who is authorized lo facllrtale the resolution of lhe dispute but who is oc( empowered to impose a scitleme on the pa1'1ies. Mediation fee. If any, shall be dfVided eQually among lhe parties 1nvotved� Bek>re lhe mediaHon begins, lhe par1ies agree to sign a document lim1111 the admissibility in arbitration or any civil action of anything said. any admission made. and an.y documents prepared. In the course of the merliatfon. cons1ste with Evidence Code §1152.5. In addition, if paragraph 30 is Initialled by Broker(s), Buyer and Seller agree lo mediate dispules or claims involving an ,rntaalln Broker, as defined by that paragraph, consistent with I his provision The election by Broker(s) lo inihal or not inrlial paragraph 30 shall not aflect !he applicabd of this medial ion provision between Buyer and Seller and shall nol result in the Broker(s) being dP.emE'd parties to the purchase and sale agreem'=nt IF ANY PA Al COMMENCES AN ARBITRATION OR COURT ACTION BASED ON A DISPUTE OR ClAIM TO WHICH THIS PARAGRAPH APPLIES WITHOUT FIRST ATTEMPT! . m RESOLVE THE MATTER THROUGH MEDIATION, THEN IN THE DISCRETIOt� OF THE ARBITRAlOR(S)ORJUDGE. THAl PARTY SHALL NOT BE ENTITLE TO RECOVER ATTORNEY'S FEES EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO THAT PARlY IN ANY SUCH ARBITRATION OR COURT ACTtO However. the filing or a Judicial action lo enable lhe recording of a not1,:e of pend,ng action. for order ol allachrnenl. rece1y.prs,tup. injunclion. CH other prOV1s•or remedies. shall nol in itseU constilute a loss or lhe right to recover atlorney's feP.s under this provision l he follov:lng rnallers ar� excfuded horn 1he rf?41uireme of medialion hereunder:(a) ajudic1alor non�1ud1c1al foreclosure or other aclion Of proceeding 1oenfo,ce a deed ol lrust. mortgage. or installment land sale cont re as defined in Civil Code §2985, (b) an unlaw ul detainer action. 1c) tha filing or enforcement of a mechanic-s lien. and (d) any maller wh,ch ,s w1t111n !he 1ur1sd1ct1t of a probate court.
29. ARBITRATION OF DISPUTES: Any dispute or claim In law or equily between Buyer and Seller arising out ol lhis conlracl or any resullif transaction which Is not seltled through mediation shall be decided by neutral, binding arbitration and nol by court action, excepl :
provided by California law for judicial review of arbilralion P.fOteedlngs. In addilion. ii paragraph 30 is inilialled by Broker{s}. Buy and Seller agree lo arbllrale disputes or claims Involving an inllialling Broker as detlned by lhal paragraph, consistent wilh !his provisio The eleclion by Broker(s) lo Initial or nol lnlllal paragraph 30 shall nol allecl tie applicability of lho arbllralion provision between Buyer a, Seller, and shall not resull In the Broker(s) being deemed parlies lo lhe purchase and sale agreement.
The arbitration shall be conducted In accordance wilh the rules of either the American Arbitration Association (MA/ or Judici Arbllrallon and Mediation Services, Inc. (JAMS). The selection belween AAA and JAMS rules shall be made by the claimant irsl filing I the arbitration. The parties lo an arbilrallon may agree In writing lo use different rules and/or arbitralor(s). In all other respects. lhe arbitralic shall be conducted In accordance with Part 111, TIiie 9 of the California Code of Civil Procedure. Judgment upon the award rendered by the arbllrator( may be entered In any court having \
urisdlcllon lhereol. The parties shall have lhe right to discovery In accordance with Code of Cil Procedure §1283.05. The followlng ma lers are excluded lrom arbitration hereunder: (a) a judicial or non-judicial foreclosure or other acli< or proceeding lo enforce a deelf of trust, mort]lage, or lnslallmenl land sale contract as defined In Civil Code §2985, (bl an unlawl detainer action, (
� lhe filing or enlorcemenl of a mechanic's lien, (d) any maller which Is wilhln lhe jurisdiction of a probate or sm; claims court and e) an action for bodily Injury or wrongful death, or for latenl or palenl defects, lo which Code of Civil Procedure �337.1 §337.15 applies. T e flllnq of a judicial aclfon to enable the recording of a notice of pending action. for order ol allachment, rece,vefshi fnjunclion� or other provls\
onal remedies. shall nol conslitule a waiver ol lhe right lo arbitrate under this provision. "NOTICt: BY INITIALL NG IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF TIIE MATTEF INCLUDED IN THE 'ARBITRATION OF OISPUTES' PROVISION DECIUED BY NEUTRAL ARBITRATION AS PROVIDED BY C/\LIFORNIA LA ANO YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. £ INITIALLING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHl ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITR/ITION AFTE AGREEING TO THIS PROVISION� YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CtV PROCEDURE. YOUR AGREEMENr TO THIS ARBITRATION PROVISION IS VOLUNTARY." "WE HAVE READ ANO UNDERSTAND THE FOREGOING ANO AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDE IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION:' Bv�·• lnlli•I■ ml'li.11
0,, ,/ "QM_/,(/)1:tiJ--
Buyer and Seller acknowl��
• ir:•ipl of copy of th;s page, which confiju\cs Pago 5 �'.,,;- �-n P.>ges
Buyer's Initials q.1.1-t�I ( ____ ) Seller's lniHa!S �hlL1 urv'__dt__� : 1 1 •• il '. · : t l l
--- OFFICE USE ONLY - r�.,.;e�od by B•ol>.o< o< 0.signee _ L O'i\l«t- - - • - ---- - J ---- • ....-- .... , ,....,....,, • ... ,..r- ,..,,.,, •• ,....,... a,.. ....,.. A a.in ncr-c10T t:no ncon<:::1T 1n1 r:-. 1A DA�S: ,:; n� ta Attachment No. 6
••• • ·-··-• .• • � -· ·· -· -- -·· --•· - ·-•-. ,., __ ._ ..... •r-, ��- -·-· .. , ... . . �ag�"--5_,.pf 7 .. -----� ·-· --------· --·-·- 350 / ,;
A
/4,o,ess _______ _L ;",>_:;,_ .::.:...!_c> ,;,_ .. _i, v , L , l ,� , , u, , . • , . , � J r"-'IS: (If Initialled.) Any Broker who Initials below �grees to (a) mer<'•te any dispule or claim with Buyer, Seller. or olher in,liall,�g Broke out ol this contract or any resulting transaction, consistr Ith paragraph 28. and (b) arbitrate any dispute or claim wI1 yt,, lieller, or other lnlllalllng Broker arising out of this contract or " . esulllng transaction, consistent with paragraph 29. flowever. II th dispute ls solely between the Brokers, II shall Instead be submilted for mediation and arbitration in accordance with the Boaro/Associalion i.
I
I.
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'
•
REAIJORS" or MLS rules. If those entitles decline lo handle the matter, II shall be submilted pursuant lo paragraphs 28 and 29. The lnlllallin ol this paragraph shall nol result In any Broker being deemed a party to lhe purchase and sale agreemenl. As used In this paragraph, "Broker' means a brokerage firm and any licensed persons alfillated wllh lhal brokerage lirm.
Senlng Broliaf U1Un1 II�
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,l�1•�1 (lmll•I•)
31. LIQUIDATED DAMAGES: (11 lnlllalled by all par11es.) - ... L_ � ,�\,t.¥,. ,tJ..,,, Buyer and Seller agree that if Buyer fails lo complele this purchase by reason of any default of Buyer:
eller shall be released from obligalion lo sell the Property to Buyer.
B. Seiler shall retain, as liquidated damages tor breach ol contract, the deposit actually paid. Buyer and Seller shall execute RECEIPT FD INCREASED OEPOSIT/LIOUIDATEO DAMAGES (CAR FORM RI0-11) for any Increased deposils. However, lhe amount retained shall be no mo than 3¼ of the purchase price If Property is a dwelllng with no more than four units, one ol which Buyer Intends to occupy as Buyer's res id enc Any excess shalt be promplly,returned to Buyer.
C. Seller retains the right to proceed against Buyer for specific performance or any olher claim or remedy Seller may have in law or equit other than breach of contract damages.
D. In the even! of a dispute, Funds deposited in trust accounts or escrow are nol released automatically and require mulual, signed 1eleas instructions from both Buyer and Seller, judicial decision, or arbitration award.
32. ATTORNEY'S FEES: In any action. proceeding. or arbitration belween Buyer and Seller aris,ng out ol lhis agreemenl. lhe prevailing party shall b entitled lo reasonable allorney's fees and cosls. except as provided in paragraph 28.
33. MULTIPLE LISTING SERVICE: If Broker Is a Particlpanl of a mulliple llsling service tMLS), Broker is aulhorized lo report lhe sale. price, terms. and nnancin tor publication, dissemination. information. and use of the MLS. i1s parem entity. eulhorized members. par1icipanls. and subscribers.
34. OTHER TERMS ANO CONDITIONS: lf,v,:i,.,,r• ·-:-c:· •?,.;: C:1�·,;,_; NCn,:'.:, ��.:::::. 0.'\'1 'i?@..<ir!l2..ci,
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1:$: BG;..:,;t'� ftt1Uv,..;;Po Ih rv,;,-,- P�,, •• Cv,?fc:41:!:J<>.-. a,1��vt.Lfl.1<,.1,1 c ·,c :i:'D..c,-,.r..u;:\<-----di -<J;'.M:-m,:tli�� Ri:.ur--s rtvP S,-,Cc;,·b�•'/!'-> • ?1tc(1..-::•n, tS i3�1y,. r<a.:.�1w�.,;-� -�B�.g._�12.
�c.��'N4 E� ·TtJ� c,"1 cE .:r,"1:-1 a.c:.L1111..,_,�e, .. fl.d:s.f:...i:i....Qi,: TrJ,;..1.c...{!t"P.<?,
35. TIME OF ESSENCE; ENTIRE CONTRACT; CHANGES: Time is ol Iha essence.All prior agreemeo1s belweenlhe parties are incorporaledin th,sagreemen which constitutes the entire contract. 11s terms are intended by the parties as a final, complete and exclusive expression of their agreemen1 with resped to 1! subject matter and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. The capCions In this agreem�r are for convenience of reference only and are not inlend�d as part or this agreement. This agreement may not be extended, amended, modlfiec altered, or changed In any respect whatsoever except by a further agreement In writing signed by Buyer and Seller.
36. AGENCY CONFIRMATION: The lollowing agency relationship(s) are hereby confirmed lo< this transaction: <' {3., � i': tf.. TO t'l t'f' C, _ t!.
Lisling Agent: MA Rev:;. J. OJ I L.UC.:1/J( P is the agenf of (check one): (\ "''1 Ne...., -n!',<_; .� .. ...-r... A .,:;. re I
(Print Fi<m Nam<>) uArrt <L � r\.(;R_c � ,>1-:,.,J; ll E:Ai. .18) the Seller exclusively; Of O bolh the Buyer and Seller.
Semng Agenl: �/\,J lL 6M,;,,Jr.: Re At.. Es ·wec,,r nol same as Lisling Agent) Is the agent or (check one):
(Print Firm Namet
l2!J the Buyer exclusively; Of O the Seller exclusively: or O bolh the Buyer and Seller. (IF THE PROPERTY CONTAINS 1-4 RESIDENTIAL DWELLING UNITS, BUYER AND SELLE.A MUST ALSO BE GIVEN ONE OR MORE DISCLOSURE REGARDINI REAL ESTATE AGENCY RELATIONSHIPS FORMS (CAR FORM AD-11).)
37. OFFER: This Is an oiler lo purchase the Property. All paragraphs with spaces for lnlllals by Buyer and Seller are Incorporated In this agreement only lnlllaned by both parties. If only one party lnllfals, • Counter Otter Is required unlll agreement rs reached. Unless acceplance ls signed by Seller and a s,gne copy delivered in person, by ma� or facslm�e. and personally received by Buyer or by .B-'/s<-c...,.;_&1_&}.il..Ll.�..,.::S:11. iLC Lie��,(:,: _)). • C�. wh
Is authorized to receive ii. by _1:::fi 13. 7 . 19�.at 5'.:Ll.L IIJ1\/PM, lhe airer shall be deemed revoked and lhe deposit shall be returned Buye and Seller acknowledge that Brokar(s) is/are nol a party(iesJ lo the purchase and sele agreement Buyer has read and acknowledges receipl of a copy or lhe 011, and agrees to lhe above confirmation ol agency relationships This agreement and any supplemenl. addendum. or modification. including any pholocopy0< lacsim,h may be executed in two or more counlerparts, all of which shall constitute one and the same wrlli!)9 � ., , 1 Recelpl for deposit Is acknowledged: BUYER _ _.'\].L<Ci.,..�; c; ,,..<cc11--"'Qi"-'��-;....:A..:.U""J.'-Vh "-'-' _______ _ BROKER :SAu CLE,:\:\f;.1..Jfll:. RF-A. Esmrl; t:c BUYER Address
ACCEPTANCE
The undersigned Seller accepts the above and agrees lo sell the Properly on the above terms and conditions and agrees 10 lhe above conlitmallon or agenc relattOnships (0 subject lo attached counter offer). Seller agrees 10 pay compensation for seMces as rollows:
________________________ lo ________________ _____ _
______________________ to __ _
.. Broker. an
• Brak�
payable: (a) on recordation of lhe deed or olher evidence ol lHle. or (b) ii complehOn or sale is prevenled by deraull ol Seller. upon Seller's defaull. or (c) if complet,o of sale is prevented by default of Buyer. only ir and when Seller coflecls damages from Buyer, by suit or olherwise. and I hen in an amount equal lo one-half< the damages recovered, but not lo exceed the above compensation, aher flrsl deducting lille and escrow expenses and the expenses of colloc!ion. if any. Sell£ hereby irrevocably assiQns to Broker(s) such compensation from Seller"s proceeds in escrow In eny aclion, proceeding, or arbilral1on relaling to the paymer of such compensation, the prevailing party shall be enti11ed to reasonable altorney·s fees and costs. exc�pt as provided in paragraph 28. The undersigned Selle has read, acknowledges receipt ol a copy or !his agreement, and 2.uthonzes Broker{s) lo deliver e signed i;y py to Buyer
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DaieC7_..c.,or;4 � Telephone _______ Fa< ··-- _____ SELLER .. [�:: � < C.
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Address
• SELLER �.a �¼�:ad,_ �- .a�----
Real Estate Broker(s)confirm(s) agency relalionsh,p(s) as•� (Real Eslale Brol«:>rs are ')!'I pM•es lo lhe purchase and sale agreement belween Buyer and Seller Real Estate Broker (Selling! :S' A,,i. CL G{\J �t,,I nr �,!!,,_�� By .. Qs���k<-.!:.. Dale ------- Address "(01 Al e,L Coro hv o Rc.+L $ fhJ ".¼!t!'.l�ib.h◄ Telor,l)P.P'C,�· �I' Falo:
Real Estate !uok•r!Ll'iling) re U5 ... MI 1...Ll C H ,,if' By ,)(ffe�-.J. ;.Jr.'{ (;'A-- Dale-------- Address 'i/00 fli/C f7 llf /vo /...�' \'c 0, • Telephone I Fax Thl1 fotm 11 IVJif•bl• Jor 1JII by lhl 1n!1r1 ,,,1 Hlalf ir,du,try riw UH of 1h11 lorfl'I It "Of �e.-.d.ci lo lde••llly lhe V'Hf II I AEAL"J"OA"" FIEAlf()A4 b. ,,g,,�,..., collect ..... -!l'lbtlrthir ""'"' •hochme, b& � only by re&I 111111 ficens•et .. ho 111 memb•1s ol lh• NI\TIONAl ASSOCIATION� REALTORS"' a.-.d WftO 1ubs-c11b,e lo ils c� d Eff'Hc:5 Page 6 of _ f.? ___ Pages. ---• -- -· •--• • • ----'Aff:a�t"�•r-"6,... nrr,,r,,ro1-r ,n1 r _.,. n 11.r-r: c £'\Ce!\
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HEAL ES rA'I E l'U HCII ASE CONl i:, • er ,\ Nil Hl•:n-:wr n1u II EI'( )SIT llllS IS IN ll.NDEI> HJ ill! A I Ji<:AJ J, Y sc; ctY,1'kACI J{hAl) JJ ('AMJ .
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Thia ,,L.lcnJum 1, inco'l"'ulcd by rdmncc rnJ rn"lc • pan ol that e<rt,/n Rc,I I'"'" l'urd"" Conu,ct ""-' Rccc'I< [,u l>c1.,,i1 ol,ieJ _J_· --�')�- · iq_lJ' .. { , CHCUtcJ hy Mf.l� �Q ... fl< 5,
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-:->_M.lJ.� flu)Cl(S) anJ Scl1cr(1), for
d1e p.J1cl11se of rCJI prupcr1)' cummonly Umwn 11 I ") 3, - l.�lL.J..Ji::\.� . .!��'-'-'- 1 _______________ , &nJ LncluJe the follv-.int nem1 lluti•lcJ hy lluyc1(1} 10J Sellcr(1):
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14. SOILS ANU I.Ah"U: Ouye1(1) anJ Scllt"1(1) 1.::l.1kJ'4 !e1Jcc 1h11 k:ul l;11.i1c B,okcrs 111J lhcir Aarn1(1) uc 00( upcn, in \he field or soils engi11ceri111 anJ havt no lu<.P,e.•lcJie vi 11.: 1otl1 lOnJili011 or lhe 1Uhjc1.1 pwpi::::ny Thc1cfore, in purchum& I.hi, pcore:ny, it i1 C1pic11ly •irccd !.::tween l1u)'e1(1) 11.J Scllc,(s) I.Jut Buye1(1) 11c purJ,.,ing the real r,-:upc.r1y in iu ·u u condi1ion and "'1th all h11l11" 11 lu 10il and all ,..,,I ,c1�1cJ ("'�ilcnu or any n.11urc. whauoevcr. \llhcthcr cau1eJ ftom lhc. ,oil in ru n.uuul 11...11.c or 1111>.JificJ hy lhi,J pcnons or bu1ineu 011ii1c:s llu)er1)) ,nJ Stllc.r(1) have he.en 1J,,.i1cJ lh&1 Southern C.1lifumu., in ccneral. cunm11 o( cl1y, aJ->he, and c1.p1m1\·t 10,h lbc,dure, Hu)t1(1) arc 1,h· iscJ 10 1td: the ,e,..,.1cu of qu1liried .01l r ui,inccn. 11ru<.1u11I cuimc:en, Of other e1pc11t or 1.hc1t o,.n ch-oosi111 in otJcr lo Jclerm,ne lht cond11ioo lJld 1ur1.lhili1y ol the ptopcr1J lluycr(s) 111J Scllcr{J) 111cc tha1 10,h II roo11lkrcd 1n area lhai II iuacceuthle lo 1 1c11on.1bly comoc.lenl rnJ ibl1icn1 vi,u.11 i11sp.:c11on. anJ hereby hold Srn <.lcuicnle RuJ E.sule and IU Acc111(1) aoJ ���s �l'!,fl,(.fl"11' _ &nd iu Aic111(1) h.umle:u for any d1m.1.cc1 or lu,1 in v1luc. suHcrt:J &o suhjccl prupcr1y hy vinuc. of any 1vil, nruaural, °' Jc:11cn rdi1cd problems. ll.c Icon ·11-is" docs not 1dicYC Sel1cr(s). Urolc1{1), or A1cn1(1) (10m dis.cloture or 1ny \:.no""1'1 1oil rela1cJ poblems.
ST l!UCfURAL PEST CONTl!OI. 11'SPECTIONS: Buyer(,) and Selk,(,) acknowledge uid 111cc 1h11 Red E,u,e O,okct(i) aoJ lhc.ir Accnl(s) arc nol liable for 1n1Jc.qu1le inipcdions or ,cp,in by liccnscJ 11rudural pc.st coolrol opetatou.
ROOF: It 1h1II be. the 8uycr(5) 1c�po11sihili1y to dcierminc r,om I qualiried roof iru�clor or 1Juyc1(1) own ch,,ouni. (and 11 Uuyci(1) e.1.pcnsc), thc conditton 1oJ pro�blc lire or niJ root. Rnycr(,) 111J Seller(,) fur1t\Cr as:rcc Lh11 the roof is an 11c.a lh&1 i• hucccuibfe to I reuouably compc1c11I ind Jili,cn1 Yisuaf mspct."liuu by die B1ulcr(1) ind their A1cnt(1).
TAX ANU l.E(;AI. AOVICE: Buyer(1) mJ Sdk.r{s) uc ,d"'ucd lo cun,uh lhdr account�nt rnd 1Uomcy (or tu, 1ccountinc. 1nJ Ice.al 1Jvicc rcguJing lhis 1unu011Jn.
CREDJT\VORTIIJNES'S OF DU\'EM.: llufcr(s) and Sclkr{r) acknowle1lgc and 111cc tJu1 San Ckmen1e He.ii fat.ale and iu Accul(s) have m1de no rcpccu.n11tion1 whtsoc-ver concemin& the finaoci1I cund11ion 01 c1cdi1worlhincu or die Ruycr(1), and fo1 1J.c1 .1c1cc 1h11 ii h lJ1c sole duty ur tl1e Scllcr(s) .1nJN1 inJcpc:nJcnt lending imii1u1ion1. ii any, 10 invcst1c11t tJ,c financi11 cuoJ111011 111J qu.1lificuions o( die Burc1{1) lu qu,My aod do1c: ll1is t11nuc.:1ion.
SELi.ER CAR RY HACK FINANCING: II Scncr(s) iJ 10 mry b,ck fin,n.-irog lo, the lh,yci(,). 1ecured by■ Trun l'l<<d ■nd N'oec: in h"'ot or lhc: Scller(s}, Uuye1(1} aic lo c1ccutc 1. Selle, Fin1nd11c l>isckuuic S111c111en1 and J>fo"'iJc ir 10 the Sc.lkr(1) by ______ ,, 19 __ . Sclle1(s) musl ugn inJic.a1inc 1r
,,cuv1I of Huyct(s) ah1li1y lo f'IY, or notify Buycr(s) or csoow Lil w1i1i11g within LJuce worling day1 or rco:ir< o( 1hls slllcmc.nt, o( Lhcit di5.1rp11>\·1I. Scllc1(1) hilurc 10 prn\tiJc. svdl wriucn nu1ific11iu11 wii.Jiin lhe three ..,...o,k.ing J:,y pc1i1,uJ slull be dcc.,nc-J .approval, NOISE OR NOXIOUS ODOR Nt!ISANCE: lbc subject pn:,pcny may he lucaJcJ in an uc.1 "'hich i1 1ubjce1 LO noi5e cmiu.c.d hy luins 01 mili1uy anJ/ur l-ivilian 1irc.:11fl. 01 no1iuu1 odun (10m I ne.uhy u:·w•i:e 1realmen1 hcili1y. fluye,(1) 1h.1JI h ive lhc sofc ohfigation anJ du1y or u1i1fyin& tl1cmich·cs 1f12.1 the lenh of lhcsc p..,4cn1i,f uuiuncu 11c 1cccphhlc.
J'EHflllTS: Ir rcquc11cd hy lluyc1(1}, Sclk,(t) a,,ce lo 111wly all final pcrmitt on any b.Ji1din1, ahcn1ion1. n1oJifica1ion1, or 1JJidon1 lo the pn,pcr1y, not I.liter d11n len (10) calcnJu J.1y1 before lhc dme of escrow. Buyen arc aho nouri,cd herein lha1 auhjc:ct p1upcr1y may lie will1in the juri1Jic1ion of the C .. 1Hurni1 Coa11.il Couuninion, anJ m.ay be. suhjc.ct 10 lhe 1es1rie1ion1 and conJition1 or their control. particul11ly with ,c111J to any foturt pcnniu Ouye, may 1nemp1. 10 ohuin_ • IIA7.AU.DOUS P.lATERIAI..S: V11iou1 rn11eriah u1cd in lhe con11ruc1ion or 1ny imp,ovcmcnu 10 n:al (XOJ1Cr1)' may coolain n111c1ial1 1ha1 hnc lxcn, ot rn1y irt the. (\dun: be d<:tc.nnincJ lo be 101ic, h1u1dou1. Of unJc,uablc, and may nc.cJ to h: 1pcci1lty treated, hanJled. and/of removed liu,n the prnpcny. For cumpk, 1omc clcc;tric.al litntfonncu rnJ odacr ekc111ul compoocnlt can contain l,C:0'1, and uholot hu hcen uu:xl trl • \1-iJc "uie1y or huilJing cornp,..lntnu, 1uch u riRproofin&, air due1 insul11ion, 1ccus1iul 1ilcs, spray-on 1couuinl m1lcri.1h, ,nJ linoleum, noor 1ile1, and plu1e1. Such 1ubsuocc1 m.ay aho be in .1bo"¥e-g1oui1J anJ bdow-g1uuud co111,inc1J on lire 1xopcrty, or may be JXt5cnl oo or in soils, waler, building comr,onaiu, or o<hcr p.>rtion1 of U1e propef1y in ueu U1.a1 ouy or rr.ay not be acnuihlc or noliceable Rc.al En.ate B,olcr(1) and lhcir A1011(1) hive no c1pcrtise with rcspcd lo lor.ic wanes, haurJous mucri1l1, 1shc.S1os, or ocher unJcsinblc tubnancct, and r.Ud B,..,la{1) anJ Agt.n1(1) have oot matk: 111y 1cprcsc111,11om, either ciprc:u or implied, 1c1uJin1 the ui11cnc.c ot non-uinc.ncc o( to1ic wu1e1, ha.z.a,Juu, m11c1i1h, ulecS1u1, Of undesirable 1uhf1>J\Ct1. in or on the p<opcny. P1uhlcm1 involvin& tolic wu1e1, hu.i,Jous 1na1uials, ,cmo"'•I or 1sleet101, o, undctin�e 1ubS11Jtccs. can be utrcmdy cosily lo correct. II j, lhc tole rcspvn1ihili1y o( Scllcr(s) mJ lluycr(i) lo rc1.iin qu1l1ficd upcrU lo invcs1iga1e, coued, and rc:pair 1uch condi1ioru. Bv}Cf and Seller h1"c ,cccivcd • CUP)' or ·1:11viwnmc11t1I lh1.11Ji: A C:uidc fur llu111co,.,11�u and Ouycn" r,om lhe Broh,(1) in 1h11 tranud1on.
NUCLEAR NJ\, F.n Pl.ANT: 111c S,n Ouof1c Nude.a, Puwer Planl i1 loc11cJ soulh of die 1ou1hcm bound1ry line of San Clcmenlc. ·n1e 1ulijcct property m•)' I-.: lul:atcd •i•hin the ·cme1iency Lone "' or tl1is power plant.
IIOMEOWNERS ASSOCIATION: 11,c suhjcct pop:ny is k>c11cd witJ1in 1nJ is I put or I h001tovme11 111oci1tion. The cum::nt moulhly 1uod.1ion fcCJ a,c not liuJ anJ m•r Ouctua1c in lhc foturc. and p1opcny m•y he 1ulijc.ct 10 1n Atchit.cc1u11I kcv1ew Corn,niucc.
NEW ROAl>S AND FH.EEWA\'S: Buyer{s) 11.J Selk,(s) 1e:lnov.-leJec IJ1a1 d1cy hive hccn advi1cd lhat there may be new roaJs, freeways, 1ccc:u roads lo rrce.,,,·ays, anti od1t.r 101d oc buildi111 dc"¥clopmcnt1 which m•y a.Hc:d. lhe value o, dcainbility or IJ1i1 prc.pcrty, and have been spccifkally advi.scJ lo invt.uiga1c proposed 101ds rrccwayr and b.Jilding projecu •·ilh the apprupri11c 01y and Counly l'lannin& Dcparuncnls. Du)'er(t) anJ Sclle1(1) shall have lhe 1olc obli&alion and duty of invcflig1tin& aod u1isfyin& tl1emsch·c, rrgur.Jin& die impact or 111 prupc:ned rouh, (1ccw1y1, and/ or project, nc.at lhi1 properly.
INSPEC'rlON OP PROPERTY: lluyc,(1) have been 1dviJCd u 10 the mc.ull of hi1in1 an impcction fom to eulwte lhc pcopcr1y'1 Ci.1tun.1, ■ppllmces, 11.d iystcmt specified in lhc conlent of the 111enJ1nl rul utile purchase con111ct. llo•ne,, ii Uuycr{s) dcct 10 rcp,c,ent lhe111stl\te1 in accqJCuKc ol uid items, d,c Scller(t) wilt 1llow • ·,ntk-lhrough� irurxaion Lo be Jone within J.Q__ day, or Sellcr(s} accq,cancc:, and • copy of lhu w1lt,tJuuueh inspcctioo rhall be PfOviJe:d \0 lhe Scller{-lj.. or Scllc,(s) Aicnl 'l\,·i1hin -1fL_ 1.fay, or Sellcr(s) 1cccpu.ncc. ll lJuycr(s) refuse lo hire: .. •� ins�.clioo (i.9 � lo cr.1!u.a� rrerty
sys1cm1 ind riuurcs, tJ1cy sh�ll l10IJ San Ocmcn1e RtaJ l�llte anJ iis Agcnl(s) and _f}(lif!-t/S'"T {!JJ{Jt Lf(� and i11 A&cn1(1) h1nnlen C,om any m1lrunc1ions of uiJ 1yue,ru anJ fir.1u1cs aller close or escrow.
FINAi. WAI.K-l'lll!OUGII: Ouyt1(1) 10 h■vc I ru11I nlt,th,oush imp<dion __,!£_ d,y, prio, lo close of C>ClOW, Said finat walk-tluou1h impcction shall be for 1l1c 1ofe purpo1c ol veri(yinc tJ11f Seller hu mainuined the property in the tame co11Jition II iL .appeared up,
..1n iuiti�I acccpUnc.e ol lhe Buycr(s) offe1 and lo "¥criry lhat any rcp,ain •1rced uron lhrouch c1e,011.- 1h1II have been C(l111plctcd.
OTII EI!: _________________________________ _
8uyc1(1) 1nJ Scllcr{s) acknov.-ledgc 1od acrct 10 the 1hovc i1ons i11i1i1lcJ by lllJLl1, 111J hy 1hc1r ugn11u1es �ow, i11Jic11c Lh.1t lhey have 1tad ind undcnt.and I.he c..onlCJJI o( thm pmgnph•. By 1i1nin1, �"f ■ho ■ckroo•·kdge recc/pl uf ■ copy of thi, surt>krno1L /! ..__ . ,
,
/. /
Burer.....1llir,
11 i'{,, .}iU;1{J) D•·•---- • Sdk, �.,t,..-<.·{ ? .Le .... -. - •o,1e�/
14--
DII. Ouye • /� J- J ,,-,,, ,{), , D,1, ,::./,.,.,,-P.,/ ,______________ _____ S,lle,_,·k&:d'.V0 ,, ·1- .._ ✓/1 •
Attachment'. No. 6
'
352
PROMISSORY NOTE SECURED BY DEED OF TRUST AND
ASSIGNMENT OF LEASES, RENTS, PROFITS, AND CONTRACTS
June 28, 199 4
FOR VALUE RECEIVED, the undersigned, MARY ERICKSON FOUNDATION, a non-profit public benefit corporation, hereinafter referred to as "Borrower, 11 promises to pay to the SAN CLEMENTE REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), or order, so much principal as may be outstanding in accordance with the terms of this Note, not exceeding ONE HUNDRED THOUSAND DOLLARS ($100,000), plus accrued interest on the unpaid principal, plus such other costs, charges, and fees which may be owing from time to time, all subject to the terms, conditions, and provisions hereinafter set forth.
Reference is made tG:
A.
loan to
>
(i) The Owner Participation Agreement, with all Attachments thereto, by and between Agency and Borrower, with an Effective Date of June 1, 1994 ( "OPA") ,
which sets forth terms and conditions for
Borrower's redevelopment of that certain real
property consisting of approximately c?:;;i_, y.QO
square feet located at 133-135 West Canada; near
the San Clemente Redevelopment Project Area No. 1,
City of San Clemente, County of Orange, State of
California, as more particularly described in the
legal description and depiction attached as
Attachment No. 1 to the OPA (the "Site"). The OPA
is incorporated herein by reference as though fully
set forth.
(ii) The Agreement Containing Covenants Affecting Real
Property, in the form attached as Attachment No. 5
to the OPA, and recorded against the Site on or
about the date first above written.
(iii) The Redevelopment Plan for the San Clemente
Redevelopment Project Area No. 1 ("Plan"), which
Plan is incorporated herein as though fully set
forth.
(iv) The Deed of Trust paJ:"tially securing this Note
which is to be recorded against the Site as of the
date first written above.
(v) The Assignment of Leases, Rents, Profits, arid Contracts partially securing this Note which is to be recorded against the Site as of the date first
written above.
Principal Amount.
Borrower is ONE
The principal amount of the Agency's
HUNDRED THOUSAND DOLLARS ($100,000)
FS2\l 78\062266-0220\2l03146 .1 06/24/94 1 353
( 11 Agency Loan Amount") .
Loan Amount.
No interest shall accrue on the Agency
B. Term of Note; Repayment of Agency Loan Amount. The
entire Agency Loan Amount shall be due and payable in a single lump-sum payment on the maturity date (30 years from the Note Date). Borrower shall have the right to prepay all or any portion of this Note at any time without penalty.
c. Default. Borro�er shall be deemed in default of this Note in the event:
( i) Borrower fails to timely make a required payment
within ten (10) days following the due date; or
(ii) Borrower fails to timely make any other payment due hereunder; or
(iii) Borrower is in material default of any of the terms of this Note, the OPA, or the Agreement Containing
Covenants Affecting Real Property, attached to the
OPA as Attachment No. 5, and Borrower fails to
timely cure such default under the terms of the
applicable agreement.
In the event Borrower is in default of this Note, the outstanding principal balance of the Agency Loan Amount shall become immediately due and payable.
D. Additional Terms.
1. All payments shall be first credited to reduction of costs, charges, and fees which may be owing from time to time, and then to reduction of the One Hundred Thousand Dollar ($100,000) outstanding principal balance. All payments shall be made in lawful money of the United States. Payments shall be made to Agency at the address set forth in Paragraph G herein or at such other address as Agency or the holder of this Note may direct pursuant to notice delivered to Borrower in accordance with Paragraph G.
2. If Borrower fails to timely make a required ·payment within ten ( 10) days following the due date of such payment, interest at the rate of ten percent (10%) per annum or the maximum legal rate then applicable, whichever is less, shall accrue on the outstanding amount due dating from the day when that payment was due.
3. Borrower agrees to pay the following costs, expenses, and reasonable attorney's fees paid or incurred by Agency, or adjudged by the court, in the collection of amounts in default or other costs incurred as a result of a default by Borrower: (i) reasonable costs of collection, costs and expenses and attorney's fees paid or incurred in connection with the collection or enforcement of this Note, whether or not suit is filed, and (ii) costs of suit and such sums as the court may adjudge as attorney's fees in FS2\ 178\062266-0220\2103 I 46.1 06/24/94 2 354
any action to enforce payment of this Note or any part of it if Agency prevails in such suit.
E. Nonassignability and Nonassumability.
not be assignable or assumable without the prior,
consent of Agency which may be given or withheld
and absolute discretion.
This Note shall
express, written
in Agency's sole
F. Presentment. Etc. Notwithstanding any other provision herein to the contrary, to the extent permitted by law Borrower hereby waives the following: (a) notice of default or delinquency, (b) notice of acceleration, (c) notice of nonpayment, (d) notice of costs, expenses and losses and interest thereon, ( e) notice of interest on interest and late charges, (f) diligence in taking any action to collect any sums owing under this Note or in proceeding against any of the rights and presentment for payment, demand, protest, and notices of dishonor and/or protest; (g) the benefits of all waivable exemptions; and (h) all defenses and pleas on the grounds of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice.
G. Notices. Any notices required by law or this Note shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested.
Notices to Borrower shall be addressed to:
Mary Erickson Foundation
P.O. Box 3112
Mission Viejo, California 92629
Attention: Mary La Husen
Notices to Agency shall be addressed to:
San Clemente Redevelopment Agency
100 Avenida Presidio
San Clemente, California 92672
Attention: Executive Director
With a copy to:
Jeffrey M. Oderman
Rutan & Tucker
611 Anton Boulevard, suite 1400
Costa Mesa, California 92626-1998
Notices personally delivered or delivered by document deli very service shall be deemed effective upon receipt. Notices mailed shall be deemed effective on the second business day following deposit in the United states mail. Either party may designate that notices be sent to other or additional addresses by complying with the requirements of this section.
FS2\ l 78\062266-0220\2103146.1 06/24/94 3 355
H. Litigation. This Note shall be governed by and construed under the laws of the State of California. The parties agree that in any litigation between the parties arising out of this Note, the Municipal and Superior Courts of the State of California in and for the County of Orange shall have exclusive jurisdiction. The prevailing party in any litigation between the parties arising out of or connected to this Note, in addition to whatever other relief to which the prevailing party is entitled, shall also be entitled to reasonable attorney's fees, including fees and costs for discovery, and any fees and costs for appeal. In the event of such legal action, service of process on Agency shall be made in such manner as provided by law for service on a California public entity; service of process on Borrower shall be made in such manner as may be provided for by law, and shall be valid whether made within or without the State of California.
I. Waiver. No waiver of any breach, default, or failure of condition under the terms of this Note, or the obligations secured hereby, shall be implied from any failure of Agency to take, or any delay by the Agency in taking, action with respect to such breach, default, or failure from any previous waiver or any similar or unrelated breach, default, or failure; and a waiver of any term of this Note must be made in writing and shall be limited to the express written terms of such waiver.
J. Time of Essence. Time is of the essence in this Note.
K. Severability. In the event that any term or provision of this Note is held to be unenforceable, the remainder of this Note shall remain in full force and effect to the fullest extent without inclusion of the unenforceable term or provision.
L. Interpretation. In the event of any conflict between this Note and the OPA, this Note shall apply. All nonconflicting terms of the OPA are hereby incorporated herein as though fully set forth. The terms of this Note shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Note or any other rule of construction which might otherwise apply.
The paragraph headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Note.
FS21178\062266-022012103146.l 06/24/94 4 356
IN WITNESS WHEREOF, the parties have executed this Note as of the date first above written.
ATTEST:
APPROVED AS TO FORM:
RUTAN & TUCKER
FS2\ 17 8 \062266-022012103146. I 06124/94
11Borrower11
MARY ERICKSON FOUNDATION, a non-profit
public benefit corporation
11Agency11
SAN CLEMENTE REDEVELOPMENT AGENCY, a
public body, corporate and politic
By:
Chairman
5 357
itli!C!-�rdM."1<> nv,._...,, ��-s ,\ r-�:,_,i.,�o?t...-·i ·t'"H �i;;·y,;�� �---��'!.· . .. 1-::; GATEWAY TITLE COMPAr·,
Order No. 34 7-0451-37
Escrow No. 42
79-J
Loan No. N/ A
WHEN RECORDED MAIL TO:
Myrna Erway, City Clerk
City of San Clemente
100 Ave. Presidio
San Clemente, CA 92672
Recorded in Oftic:-31 Re:crds
of Onn·se [:.c .. ,.mh; t.�hfo T1fa
Lee �� Br-±nc1!, Ccriti(D' Re-:or(!er
F·ase 1 of 4 Fee;: $ 19.00
Ta�; ! 0.0G
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST with Assignment of Rents and Request for Special Notice This DEED OF TRUST, made June 28, 1994 , between
MARY ERICKSON FOUNDATION, a non-profit public benefit corporation, herein called TRUSTOR, whose address is P.O. Box 3112, Mission Viejo,
(Number and Street} (Ci
ty)
California 92690
(State)
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and SAN CLEMENTE REDEVELOPMENT AGENCY, a public bcxly corporate and politic , herein called BENEFICIARY, WITNESSETH: That Trustor grants to Trustee in Trust, with Power of Sale, that property in the City of San Clemente, County of Orange , State of California, described as:
(See Exhibit "A" attached.)
�
,his DEED D � /YUST ·,s
For the Purpose of Securing (1) payment of the sum of $ 1 0 0, 000. 00 with interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of Beneficiary, and extensions or renewals thereof, and (2) the performance of each agreement of Trustor incorporated by reference or contained herein (3) Paymen
.
t of additional sums and interest e�{l � may reafter be lobfd �stor, or his sue es� oc£ifi�J 1�i vi e�romissory
not3r�r�h�if&frfr:�t this Deed o T�}, l'il ru����Fi����������r= JU pn::s:a1t To protectttie security o th s ee I ru , an 1th respec tottie prope a ve escri e , rus or express y ma es cti and a. of the aWe'�ents, arfd a opts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms and provisions set forth In subdivision B of the fictitious deed of trust recorded in Orange County August 17, 1964, and 1n all other counties August 18, 1964, in the book and at the page of Official Records in the office of the county recorder of the county where said property is located. noted below opposite the name of such county, namely:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 38 187 Alpine 3 130-31 Lake 437 110 Plumas 166 1307 Siskiyou 506 762 Amador 133 438 Lassen 192 367 Riverside 3778 347 Solano 1287 621 Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2067 427 Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56 Colusa 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 655 585 Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183 Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 Trinity 108 595 El Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108 Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 160 Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237 Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16 Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693 Inyo 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964, Page 149774 shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and provisions contained in said subdivisions A and B, ( identical in all counties, and printed on the reverse side hereof) are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at his address hereinbefore set forth.
In accordance with Section 2924b, Civil Code, request is hereby made by the undersigned TRUSTOR that a copy of any Notice of Default and a copy of any Notice of Sale under Deed of Trust recorded as Doc. No. in Book page , Official Records of County, California,
as affecting above described property, executed by
as Trustor in which
is named as Beneficiary, and as Trustee,
be mailed to
whose address is
(Number and Street) (City) (Zone) (State)
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address contained in this recorded request. If your address changes, a new request must be recorded.
Signature of Trustor
STATE OF CALIFORNIA •
./1 J c- COUNTY F ////, � .,r
On�(-"-U.l�'---6..=,fvr,'--'....L..-'-�---,'"t'-------- By:
Signature of Trustor
.J It p f 8 0 a rd V s: res .o
�, &1M l. - e/ !...t� --'+ I
Mary Erickson Foundation, a non-profit
358
EXHIBIT A
/ / / /
LOTS
COUNTY
49 OF
AND
ORANGE,
50, BLOCK
STATE
13 OF
OF
TRACT
CALIFORNIA,
NO. 793,
AS
IN
PER
THE
MAP
CITY
RECORDED
OF SAN
IN
CLEMENTE,
BOOK 24
/
PAGES � THROUGH 5 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.
ASSESSOR PARCEL NO.: 058-051-58
058-051-59
359
GOVER�ME�T CODE 27361.7
I CERTIFY UNDER PE�ALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED, READS AS FOLLOWS:
NAME oF NOTARY : __ \(_Q_i e_n __ f-6' -a..=,._w_e_...... l f ______ _ COMMISSION NUMBER: -------------------
VENDOR NUMBER: --------------------
DATE coMMissioN EXPIRES: :)Cl n . l D, \ qq �
COUNTY WHERE BOND IS FILED: Q cCt__.r")°:) L
PLACE OF EXECUTION: ----ORANGE. -------------- CALIFORNIA DATE : ----------i ] .;:;_;.-3 -+-I q -'--;.....,,....------ 4 --- GATEWAY TITLE COMPANY: ______ ........_l/-=�=----�------- G0VERNMENT GODE 27361.7
I CERTIFY UNDER THE PENALTY OF PERJURY THAT THE ILLEGIBLE PORTION
OF THIS DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
$u.J� sc.,, ( 1 oe cf ·tD + l--t e w 1 + h 1 n • I � s. +r-u vY) e--/\, + C\/"' tl �c le v1 Dl-v\ ed ')e ct
S \ � �, \\i u.J t. ( S ) D"' -+ � Q.. \ v) 1
:d·-< u W) e ri t -rh. e_
pe rSb (\ ( �� or +he. e__vr-tr71j
jl;-\ 1 q Ml"D... --fu .,,.. o-F-47 c L l\. ( N £
r
t ct/ , 4- /
S-e_Cl l
PLACE OF EXECUTION: __ o_RAN_G
_
E
_
, _c
_
AL
_
I
_
FO_RN_IA __________ _
DATE: _______ .....;;;;... � _-3_-°t _ '--I "-;--::-------------- GATEWAY TITLE COMPANY: ____ V,_!)-=--i.M_-�--=--"'--------- 360
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS.
CITY OF SAN CLEMENTE )
This is to certify that the interest in real property conveyed by the deed or grant dated June 28, 1994 from the Mary Erickson Foundationhn to the City of San Clemente, a municipal corporation, is hereby accepted by order of the San Clemente Redevelopment Agency on June 1, 1994, and the grantee consents to recordation thereof by its duly authorized officer. \.]) Dated: August 15, 1994
0 \
� -.J
\\)
By_,ft.....-'J�!...4f,Z.!.:::.'.l�:2:!:::::::::....._i.,i;....LJ���� City Cler . nd Ex-Officio Clerk
of the Ci Council of the
City of San Clemente
361
RECORDING REQUESTED BY:
GATEWAY TITLE
AND WHEN RECORDED MAIL TO:
SAN CLEMENTE REDEVELOPMENT AGENCY
100 AVENIDA PRESIDIO
S.Ai\J CLEMENTE, CA 926 72
AT1N. EXECUTIVE DIRECTOR
--------
AM
SPACE ABOVE THIS LINE FOR RECORDER USE
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
ASSIGNMENT OF LEASES, REI'TI'S, PROFITS
TIPE OF DOCUMENT: AND CONTRACTS
DATED: JULY 6, 1994 -------------------
I
(l_
L
362
I'
rf)
fB; . .ll' ,, ., [" r1.fR")'Jfm1:0' ,, �r�!Jf\•?tf·•,: r.'fj GAlfWAY 1 H li Cuii?ANY
ASSIGNMENT OF LEASES, RENTS, PROFITS, AND CONTRACTS
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
San Clemente Redevelopment Agency
100 Avenida Presidio
San Clemente, California 92672
Attn: Executive Director
(Space Above Line for Recorder's Use)
This Assignment of Leases, Rents, Profits, and Contracts is recorded at the request and for the benefit of the San Clemente Redevelopment Agency and is exempt from the payment of a recording fee pursuant to Government Code Section 6103.
SAN CLEMENTE REDEVELOPMENT
AGENCY
THIS ASSIGNMENT OF LEASES, RENTS, PROFITS, AND CONTRACTS (this "Assignment") is given by the MARY ERICKSON FOUNDATION, a nonprofit public benefit corporation ("Borrower"), to the SAN CLEMENTE REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency")
A. Borrower is the fee simple owner of the real property located in Orange County, California, legally described on Exhibit "A" attached hereto and made a part hereof (herein "Land").
B. Borrower has requested Agency to provide financial
assistance in an amount of ONE HUNDRED THOUSAND DOLLARS ($100,000) (the "Loan") pursuant to the terms of a Note of even date herewith (the "Note"), a Deed of Trust of even date herewith ("Trust Deed"), and an owner Participation Agreement dated June 1, 1994 (the "OPA"), and other security or supporting documents contemplated thereby and executed in conjunction therewith, all of even date with this Assignment (the "Loan Documents"); and
c. The Trust Deed applies to the Land, and all buildings, improvements, fixtures, and personal property located thereon or FS2\ l 78\062266-0220\2 l 03151.1 06/24/94 1 363
related thereto (the "Improvements," hereinafter referred to together with the Land as the "Project"); and
D. Agency is willing to extend the Loan only upon the security of the priority of said Trust Deed, the various Loan Documents, and as further security, this Assignment.
NOW, THEREFORE, in consideration of the foregoing promises and covenants herein contained, and in further consideration of the reliance of Agency in extending the Loan, and for other valuable consideration as evidenced by the OPA and other Loan Documents, the sufficiency of which is hereby acknowledged, Borrower does hereby incorporate the foregoing into the body of this Assignment and stipulate to their accuracy and does further grant, transfer and assign to Agency all of Borrower's right, title and interest in and to: (i) Any present or future lease or tenancy, whether written or oral, covering or affecting all or any part of the Project, and together with: (a) all guaranties of the aforesaid leases including guaranties of tenant performance; (b) all insurance proceeds, including rental loss coverage as to said leases; (c) all awards or proceeds from any condemnation of the Land or any part thereof; (d) all judgments or settlements of claims in favor of Borrower and arising out of said leases in any court proceeding, including any bankruptcy, reorganization, insolvency or debtor proceeding or case or otherwise; and (e) all security deposits made thereunder (all of which, together with any extensions, modifications or renewals, are collectively referred to as the "Leases" or singularly as a "Lease"); (ii) All rents and other income or payments of any kind due or payable or to become due or payable to Borrower as the result of any use, possession or occupancy of all or any portion of the Project including but not limited to any payments for reimbursement of common area maintenance expenses, ad valorem taxes, insurance premiums, utilities, special assessments and cleaning and janitorial costs, or as the result of the use of or lease of any personal property constituting a part of the Project (all of which are collectively referred to as "Rents"), whether the Rents accrue before or after foreclosure of the Trust Deed or during any period of Yedempti.on from it; (iii) All revenues, receipts, income, accounts, accounts receivable and other receivables from the Project including, without limitation, revenues, receipts, income, receivables and accounts relating to or arising from rentals, rent equivalent income, vending machines, telephone and television systems, guest laundry, the provision or sale of other goods and services, and any other items of revenue, receipts or other income, as from time to time amended, in excess of all costs, charges, and expenses which are directly attributable to the operation, repair and maintenance of the Project including all taxes, rates, charges, levies and assessments imposed by any competent authority upon or in respect of the Project (the "Profits"); (iv) All contracts between Borrower and third parties related to or having to do with the marketing, maintenance or operation in the normal course of business of the Project (the "Contracts") .
Borrower warrants and covenants that it is the absolute owner of the Leases, Rents, Profits, and Contracts free and clear of all FS2\ ! 78\062266-0220\2103151.1 06/24/94 2 364
liens and encumbrances other than as set forth in Exhibit "B" attached hereto; that, except as so shown on an Exhibit "B" attached hereto, it has not previously assigned or otherwise encumbered its interest in any of the Leases, Rents, Profits, or Contracts to any person or entity; that it has the right under applicable law, the Leases, the Contracts except as otherwise expressly provided therein, its formative or charter documents, and otherwise to execute and deliver this Assignment and keep and perform all of its obligations pursuant to it; that it will not convey or attempt to convey any interest in the Leases, Rents, Profits, and Contracts and that it shall warrant and defend the Leases, Rents, Profits, and Contracts against all adverse claims, whether now existing or hereafter arising.
Borrower further covenants and agrees with Agency as follows:
1. Performance of Leases and Contracts. To the extent consistent with the OPA, Borrower shall faithfully abide by, perform and discharge each obligation, covenant and agreement which it becomes liable to observe or perform under any present or future Lease or Contract and, at its sole cost and expense, enforce or secure the performance of each obligation, covenant, condition and agreement to be performed by the tenant under each Lease or the third party obligated under each Contract. Except in the ordinary course of operating the Project and to the extent consistent with the OPA, Borrower shall not hereafter cancel, surrender or terminate any Lease or Contract, exercise any option which might lead to such termination, or change, alter, or modify the same or consent to the release of any party liable thereunder or to an assignment of the lessee's interest therein, Borrower shall observe and comply with all provisions of law applicable to the operation and ownership of the Project and shall give prompt written notice to Agency of any notice of default on the part of Borrower with respect to any Lease or Contract. Borrower shall further, at its sole cost and expense, appear in and defend any action or proceeding arising under, growing out of or in any manner connected with any Lease or Contract or the obligations, duties, or liabilities of Borrower or any party pursuant to any Lease or Contract.
2. Collection of Rents and Profits. The condition of this Assignment is such that unless and until there occurs an Event of Default (as herein defined) under the provisions of this Assignment or the Loan Documents, Borrower has the right under a license retained and reserved hereby (but limited as provided in this Assignment) to collect (when due and not in advance) sums received pursuant to said Leases, Rents, Profits, and Contracts and apply the same in accordance with the provisions of the Loan Documents; provided, however, that from and after the occurrence of an Event of Default under this Assignment or any of the Loan Documents, such license will, without any_ further action, be revoked and the right of Borrower to enjoy the powers and privileges of said Leases, Rents, Profits, and Contracts will wholly cease, whereupon Agency shall be entitled to all of Borrower's right, title and interest in and to the Leases, Rents, Profits, and Contracts hereby assigned, including specifically the right to collect Rents and Profits.
FS2\178\062266-0220\2103151. I 06/24/94 3 365
3. Events of Default. Any of the following constitutes an Event of Default under this Assignment:
(i) Borrower fails to perform or observe any agreement, covenant, or condition required under this Assignment and such failure is not corrected to Agency's satisfaction within thirty (30) days of notice to
Borrower ( the "Non-Monetary Cure Period") ; provided, however, (i) if Borrower cannot reasonably perform within such Non-Monetary Cure Period and,
as determined in Agency's reasonable discretion,
Agency's security will not be impaired, Borrower
may have such additional time to perform as may be
reasonably required so long as Borrower has commenced such cure within the Non-Monetary cure Period and thereafter diligently continues such
cure to completion; and (ii) if in its reasonable
discretion Agency determines that its security
would be materially impaired if Borrower does not
perform within the Non�Monetary Cure Period, then
Borrower will have only such period in excess of
the Non-Monetary Cure Period as Agency shall
specify in writing to Borrower.
(ii) There occurs an Event of Default under any of the
other Loan Documents.
4. Remedies. Upon the occurrence of any Event of Default, Agency may, at its option, at any time:
(i) In the name, place and stead of Borrower and as a
mortgage in possession (i) enter upon, manage and
operate the Project or retain the services of one
or more independent contractors to manage and
operate all or any part of the Project; (ii) make,
enforce, modify and accept surrender of the Leases
and Contracts; (iii) obtain or evict tenants,
collect, sue for, fix or modify the Rents and
Profits and enforce all rights of Borrower under
the Leases or Contracts; (iv) give notice to the
parties obligated under the Contracts to perform
those obligations for the benefit of Agency in like
manner as if Agency were the Borrower; and (v)
perform any other acts that may be necessary or
proper to protect the security of this Assignment.
(ii) With or without exercising the rights set forth in subparagraph {A) above, give or require Borrower to
give notice to any or all tenants under the Leases
or obligees under the Contracts, authorizing and
directing the tenants to pay all Rents under the
Leases directly to Agency and the obligees under
the Contracts to perform those obligations for the
benefit of Agency, in like manner as if it were the
Borrower.
FS2\l 78\062266-0220\2103151.1 06/24/94 4 366
(iii) Without regard to waste, adequacy of the security or solvency of Borrower, and without notice to
Borrower, apply for the appointment of a receiver
regarding the Project to take possession and to
operate the Project and to collect the rents,
profits, issues, and revenues thereof and Borrower
will pay to Agency upon demand, all expenses
including receiver's fees, attorneys' fees, costs
and agents' compensation incurred in connection
therewith together with interest thereon.
The exercise of any of the foregoing rights or remedies and the application of the Rents, Profits and income will not cure or waive any Event of Default, or notice of default, under any Loan Document or invalidate any act done pursuant to such notice. This Assignment in no way operates to prevent Agency from pursuing any remedy which it now has or hereafter may have under the terms and conditions of any Loan Document but will be deemed an additional remedy, cumulative with the remedies granted therein.
5. Protecting the Security of This Assignment. Should
Borrower fail to perform or observe any covenant or agreement contained in this Assignment, Agency may, without obligation to do so and without releasing Borrower from any obligation of any kind, make or do the same in such manner and to such extent as Agency deems appropriate to protect its security as evidenced by this Assignment, including specifically and without limitation, the right to commence, appear in, and defend any action or proceeding purporting to affect said security, or the right or powers of Borrower, and also the right to perform and discharge each obligation, covenant and agreement of Borrower contained in the Leases and Contracts, and in exercising any such powers to pay necessary costs and expenses, employ counsel and pay reasonable attorney's fees. Borrower shall pay immediately upon demand all sums expended by Agency under the authority of this Assignment, together with interest thereon at the rate stated in the Note, and the same will be added to said indebtedness and be secured hereby and by the Trust Deed.
6. Present Assignment. This Assignment constitutes a
perfected, absolute and present assignment.
7. Survival of Obligation to Comply with Trust Deed and This Assignment. This Assignment is given as security in addition to the Trust Deed. Borrower shall observe and comply with all terms and conditions contained in the Trust Deed and in this Assignment.
8. Parties to File ucc-1. The parties intend that to the extent that any items assigned herein are not rents subject to the exemption provided in California Commercial Code § 9104(j), then Borrower hereby grants a security interest therein and the parties shall file and record a Form UCC-1 with the Secretary of State concurrently herewith.
FS2\178\062266-0220\2103151 .1 06/24/94 5 367
9. Agency Not to Become Liable and Third Parties Not to Acquire Rights. Agency is not obligated to perform or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty, or liability of Borrower under the Leases or Contracts. This Assignment will not operate to place upon Agency responsibility for the control, care, management or repair of the Project or for the performance of any of the terms and conditions of the Leases or Contracts. Agency shall not be responsible or liable for any waste committed on the Project, for any dangerous or defective condition of the Project, for any negligence in the management, upkeep, repair or control of the Project or for failure to collect the Rents. No third party shall acquire any rights against Agency as a result of this Assignment, the provisions of which have been granted to Agency by Borrower solely for the benefit of Agency. Notwithstanding any language to the contrary contained in this Assignment, Agency shall not be deemed to be in privity of contract with any party having contractual relations with Borrower pursuant to a Lease or Contract unless and until Agency has exercised the remedies provided by this Assignment following the occurrence of an Event of Default and has elected to require the contractual performance of a party obligated by said Lease or Contract, and then Agency shall be liable only during the period in which the remedies provided by this Assignment are so exercised and not before or after.
10. Borrower's Indemnification. Borrower shall indemnify, defend and hold harmless Agency (and its officers, directors, employees, agents, representatives and attorneys (collectively "representatives")) from and against all claims, suits, damages, losses, expenses, costs, obligations, liabilities, recoveries and deficiencies including interest, penalties and reasonable attorneys' fees that Agency or any of its representatives incur or suffer, which arise or result from or relate to the breach of, or failure by Borrower to perform any representation, warranty, covenant or agreement given or made by Borrower herein, or in any writing furnished or to be furnished by Borrower under this Assignment or in any other Loan Document.
11. Authorization to Tenant and to Third Parties Obligated Under Contracts. Upon notice from Agency that it is exercising the remedy set forth in this Assignment, the tenants under the Leases are hereby irrevocably authorized and directed to pay to Agency all sums due under the Leases, and Borrower hereby consents and directs that said sums will be paid to Agency without the necessity for a judicial determination that a default has occurred or that Agency is entitled to exercise its rights pursuant to this Assignment, and to the extent such sums are paid to Agency, Borrower agrees that the tenant has no further liability to Borrower for the same. Upon the same basis, Borrower hereby authorizes and directs any party obligated under a Contract to perform that Contract for the benefit of Agency, in like manner as if Agency were the Borrower. The signature of Agency alone is sufficient of the exercise of any rights under this Assignment and the receipt by Agency alone of any sums received is full discharge and release of any such tenant or occupant of the Project. Checks for all or any part of the Rents FS2\ l78\062266-0220\2103151.1 06/24/94 6 368
collected under this Assignment will, upon notice from Agency, be drawn to the exclusive order of Agency.
12. Satisfaction. Upon the payment in full of all indebtedness secured hereby, as evidenced by a recorded satisfaction of the Trust Deed, this Assignment becomes, without the need for any further satisfaction or release, null and void and of no further effect.
13. Agency an Attorney-In-Fact. Borrower hereby irrevocably appoints Agency, and its successors and assigns, as its agent and attorney-in-fact coupled with an interest, and with the right but not the duty to exercise any rights or remedies granted by this Assignment and to execute and deliver during the term of this Assignment any such instruments as Agency may deem appropriate to make this Assignment and any further assignment effective, including, without limitation, the right to endorse on behalf and in the name of Borrower all checks from tenants in payment of Rents.
14. Specific Assignments of Contracts Requested by Agency.
Upon notice, Borrower shall transfer and assign to Agency any specific Lease or Contract requested by Agency. Such transfer or assignment will be upon the same or substantially the same terms and conditions as are herein contained, and Borrower shall promptly file or record such assignment at Borrower's expense, if requested by Agency. Upon request of Agency, Borrower shall further obtain the consent of the lessee or contracting party to the assignment and subordination of any Lease or Contract to the priority of the Trust Deed; provided, however, in the event Agency does not require Borrower as a condition to Closing (as defined in the OPA) to obtain such consents, Borrower shall not thereafter be in breach or default for failure to obtain such consents so long as Borrower is using its best efforts to obtain the same.
15. Unenforceable Provisions Severable. All rights, powers, and remedies provided in this Assignment are intended to be exercised only to the extent that such exercise does not violate any applicable provision of law or render this Jl.ssignment invalid, unenforceable or unreasonable. If any term of this Assignment is held to be invalid, illegal or unenforceable, the validity of other terms are intended to remain unaffected.
16. successors and Assigns. The covenants and agreements herein contained will be binding upon, and the rights hereunder will inure to, the respective successors and assigns of Borrower and Agency, including any purchaser at a foreclosure sale.
17. Captions; Amendments; Notices. The captions and headings of the paragraphs of this Assignment are for convenience only and are not intended to interpret or define the provisions of this Assignment. This Assignment can be amended only in a writing signed by Borrower and Agency. All notices required by this Assignment are deemed sufficient on either (i) the third (3rd) day after deposit in the United States mail postage prepaid, or (ii) the second (2nd) day after deposit with a nationally recognized overnight courier service, or (iii) on the day of their personal FS2\l 78\062266-0220\2103151.1 06/24/94 7 369
delivery, if addressed or delivered to the parties at their respective addresses as set forth in the OPA or Trust Deed.
18. Construction. The provisions of this Assignment do not supersede, but are supplemental to, the Trust Deed and any other Loan Document, the intent being that Agency enjoy all of the benefits and protections of the various provisions of this Assignment, the Trust Deed and any other Loan Document; provided however, that in the event of direct inconsistency it is intended that this Assignment control the Trust Deed and any other Loan Document with regard to the various provisions herein contained, but only to the extent such control does not impede the enforceability or security of the Trust Deed and any other Loan Document.
19. Governing Law. The provisions of this Assignment shall be governed by and construed in accordance with the internal laws of the State of California.
I I I
FS2\l 78\062266-0220\2103151.1 06/24/94 8
370
IN WITNESS WHEREOF, the undersigned has executed this Assignment this �.n,, day of �;--�1 �v�l7 ________ , 1994.
ATTEST:
APPROVED AS TO FORM:
RUTAN & TUCKER
"Borrower"
MARY ERICKSON FOUNDATION, a non-profit
public benefit corporation
By:
Its:
"Agency"
SAN CLEMENTE REDEVELOPMENT AGENCY, a
public body corporate and politic
By: Jej�f"J/M
,. •.
f�'
M �
Oderman
Arjen/:.y Counsel
FS211781062266-02201210315 I.I 06/24/94 9 371
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
) ss.
)
Onl,,,,.L....IL!=-=.---4--,<c=+J-.J-!..-L..,,..;.,;£___ personal
per-&efta-l�ewn-t-e-me (or proved to me on the basis of satisfactory evidence) to be the person('¢_) whose name(�) is/� subscribed to the within instrument and acknowledged to me that ¥/she/t� executed the same in �/her/th� authorized capacity(:i)(s), anq that by h�/her/th� signature(�on the instrument the person(si or the entity upon behalf of which the person(s0 acted, executed the instrument.
Witness my hand and official/s�
....... �TYYYT ..... •TYT•TYTVT ...... �
OFFICIAL SEAL :
ii11.1!1��. KAREN HOWELL � [ S • ·:; NOTARY PUBLIC-CALIFORNIA ' ORANGE COUNTY : ,,,,. Mr "C;"ef\lffi, &itolres Jan. 10, 1995 � -----•-••+++e+++++�,
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
) ss.
)
on TuJv &> L99i, , beforefle, A1vt:ntL Ecw'd.&1. �1/ f!/4r!( personally appear�d iQ, :Sc.oil: ])1e � J/ J/
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
FS2\178\062266-0220\2103151.1 06/24/94 10 372
EXHIBIT 11A11
LEGAL DESCRIPTION OF LAND
[TO BE INSERTED]
l'S21178\062266-0220\2103151.1 06124/94 11 373
Crder No.: 320-347 ,�-37
EXHIBIT A
Re=e�ence No.: 4279-J
LOTS 49 AND 50, BLOCK 13 OF TRACT NO. 793, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 24 PAGES 1 THROUGH 5 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE CQUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.
ASSESSOR PARCEL NO.: 058-051-58
058-051-59
Preliminary Report - Schedule A
Gateway Title Company - 2100 West Orangewood Avenue Suite 100 Orange, CA 92668
714-978-9800 374
F S21I781062266-0220\2103 151.1 06/24194
EXHIBIT 11 B11
LIENS AND ENCUMBRANCES
[TO BE INSERTED]
12 375
Legal Descript·
Lot 49 Bl
ion·
APN# 058-0
�lc
k
5 13, Tract 793
· ·· ··
- 9 and
LO t 5 0 ,. B 1 0 Ck 13
APN# 058-051-58
' Tract 793
Book 24
Pages 1'to 5
LEGAL
DESCRf PTlON
EXHIBIT A
G
L.oc.::nCN MAP
l
I
I
376
EXHIBITB
List of Liens and Encumbrances
Community Development Department 910 Calle Negocio, Suite 100 San Clemente California 92673 377
GOVERNME�T CODE 27361.7
COMMISSION NUMBER:
VENDOR NUMBER: /
DATE COMMISSION ___ EXPIRES: __ /_..:;,.._ ____________ _ /------------------
COUNTY WHERE BOND LS✓ FILED: / ----------------
PLACE OF EXECU'u-'ION: / ORANGE. �CALIFORNI ---- A
DATE: -----,,-------------------------- GATE't{A-- TITLE COMPANY: ------------------- GOVERNMENT CODE 27361.7
I CERTIFY UNDER THE PENALTY OF PERJURY THAT THE ILLEGIBLE PORTION
OF THIS DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
PLACE OF EXECUTION: ___ oRAN __ GE,_cAL_I_F_ORN_I_ _ A ___________ _ DATE : _______ <lu... ___ _3_,.0,_
1 -i-i..( ___________ _
GATEWAY TITLE COMPANY: ___ �l/4�',[jl=--�---------------- 378
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS.
CITY OF SAN CLEMENTE )
On July 6 ,1994 , before me, Myrna Erway, City Clerk,
G. Scott Diehl , personally appeared, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( s) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
1:\clerk\ackofrecsam
���rnL & ERWAY, CITY n RK
SAN CLEMENTE
379
Attachment 3
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482
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
AGENDA REPORT
CITY OF SAN CLEMENTE
CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: May 5, 2026 Agenda Item: 10B.
Submitted By: City Clerk
Prepared By: Laura Campagnolo, City Clerk
Subject:
..titl e
COMPLIANCE WITH SENATE BILL 707
..body
Background:
The California Legislature enacted Senate Bill 707 (SB 707) in 2025, amending the Ralph M.
Brown Act to require all local eligible legislative bodies, including the San Clemente City Council, to provide two-way remote public access to meetings and to adopt formal policies addressing disruptions of telephonic or internet services during meetings. These provisions take effect July 1, 2026, and require adoption of a policy at a public meeting prior to that date.
The City of San Clemente currently conducts in-person City Council meetings, without the opportunity for the public to participate remotely. To comply with state law, the City must allow for both in-person and two-way remote public participation and formalize procedures for responding to disruptions in two-way remote public access consistent with Government Code section 54953.4.
Discussion:
Proposed Council Policy 1201-15 Disruption of Telephonic or Internet Service During City Council Meetings establishes a framework for responding to a disruption in telephonic or internet services that provide two-way remote public access to City Council meetings.
The policy is intended to:
Comply with the requirements of Government Code section 54953.4. Clarify procedures for the Presiding Officer, City Clerk and staff to follow in the event of telephonic or internet service disruption.
Ensure staff make and document good-faith efforts to diagnose and restore two-way remote public access as quickly as possible.
Define how and when the City Council may reconvene, either by continuing the meeting or adjourning, if service is not restored.
Of note, these provisions of SB 707 apply only to City Council meetings and do not apply to Council-appointed boards and commissions. Additionally, the policy does not apply to disruptions of one-way television or internet broadcasts of City Council meetings. 483
Meeting Date: May 5, 2026 Agenda Item: 10B.
CITY OF SAN CLEMENTE 2
Considerations Identified by Staff:
SB 707’s requirement for two-way remote public participation in City Council meetings significantly enhances accessibility, transparency, and civic engagement. By allowing residents to both observe and actively participate from remote locations, the policy reduces barriers related to mobility, work schedules, caregiving responsibilities, and transportation limitations. This expanded access tends to broaden the diversity of voices contributing to public discourse, leading to more representative decision-making. Government Code section 54953.4(b)(1)(A)(i)(I)(ib)(Ia) requires that the City Council adopt a policy to address the procedures for recessing and reconvening a City Council meeting in the event of disruption and the efforts to be taken to attempt to restore the service.
Council Options:
Adopt Policy 1201-15.
Modify and adopt Policy 1201-15.
Direct Staff to return with additional information.
Environmental Review/Analysis:
This is not a “project” under the California Environmental Quality Act (“CEQA”).
Fiscal Impact:
There is no fiscal impact associated with this report.
Recommended Action(s):
..recommendation
Adopt Policy 1201-15 effective July 1, 2026 in order to comply with SB 707. ..end
Attachment:
1. Policy 1201-15
Notification:
None.
484
POLICY AND PROCEDURE
1.0 PURPOSE:
1.1.1 This policy establishes procedures for responding to a disruption in the telephonic or internet services that provide two-way remote public access to meetings of the City Council, as required by the Ralph M. Brown Act (Gov. Code § 54953.4).
1.1.2 This policy pertains to telephonic or internet services that provide two-way remote public access to meetings of the City Council. This policy does not apply to one-way television broadcasts or one-way internet streams of City Council meetings. The meeting may carry on if one or more one-way services are disrupted, so long as two-way remote public access is functioning.
2.0 ORGANIZATION AFFECTED:
2.1.1 This policy applies only to meetings of the City Council; it does not apply to City Council-appointed commissions and committees.
3.0 REFERENCES:
3.1 GOVERNMENT CODE § 54953.4
4.0 POLICY:
4.1 PROCEDURES IN THE EVENT OF A SERVICE DISRUPTION
4.1.1 RESPONSE TO A SERVICE DISRUPTION
4.1.2 IF THE PRESIDING OFFICER OR CITY CLERK BECOMES AWARE OF A SERVICE DISRUPTION:
Subject: Disruption of Telephonic or
Internet Service During City Council
Meetings
Index: 1201-15
Effective Date: July 1, 2026 Prepared By: City Clerk
Supersedes: Approved By: City Council
Attachment 1
485
a. “Service disruption” means a disruption of telephonic or internet service that prevents members of the public from attending or observing the meeting via the two-way
telephonic service or two-way audiovisual platform being utilized for City Council meetings.
b. The Presiding Officer or Clerk shall immediately announce the service disruption to the public.
c. The Presiding Officer shall then call for a recess of the open session. A service disruption does not preclude the City Council from meeting in a closed session that has
been properly noticed and announced consistent with the Ralph M. Brown Act.
d. Staff shall begin efforts to diagnose and restore the disrupted service.
e. The meeting shall remain in recess for at least one hour or until service is restored, whichever is sooner. The recess period may be extended if restoration efforts are ongoing.
4.1.3 EFFORTS TO RESTORE SERVICE:
Staff efforts to restore service shall include, but not be limited to:
a. Troubleshooting platform or teleconferencing software. b. Resetting or replacing audiovisual equipment, if available. c. Attempting alternative connection methods, if available. d. Contacting necessary support staff or service providers. e. Switching to back-up equipment or platforms, if available. f. The City Clerk shall document the restoration efforts undertaken.
5.0 PROCEDURE:
5.1 RECONVENING THE OPEN SESSION
5.1.1 TIMING
a. The open session may be reconvened after at least one hour has elapsed from the time of disruption or as soon as service is restored, whichever occurs earlier.
486
b. If the public remote access service is restored before or at the time the meeting reconvenes, the meeting shall
continue as normal.
c. If service has not been restored after at least one hour of attempting to restore service, the City Council may
reconvene and:
1. Adjourn the meeting; or
2. Resume meeting in open session by adopting, by roll
call vote, the following, or a substantially similar,
findings:
“The City of San Clemente has made good faith efforts
to restore telephonic or internet service in accordance with its adopted City Council Policy 1201-15 and the
public interest in conducting this meeting outweighs the public interest in remote public access”.
3. Upon adoption of the above findings, the City Council may resume the open session despite the fact that
public two-way remote access services have not been
restored.
4. After making the above findings, the City Council should identify agenda items that are not time sensitive and
continue those items so long as public two-way remote
access services have not been restored.
5.1.2 RECORDKEEPING
a. The City Clerk shall enter a brief statement into the meeting minutes, including the following:
1. The nature and start time of the service disruption.
2. The time the meeting was reconvened (if applicable).
3. A summary of restoration efforts undertaken.
4. Any finding adopted pursuant to Section 5.1.1.
487
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
AGENDA REPORT
CITY OF SAN CLEMENTE
CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: May 5, 2026 Agenda Item: (1)
488
CITY OF SAN CLEMENTE
Tuesday, April 21, 2026
City Council
Special and Regular Meeting Minutes
910 Calle Negocio
2nd Floor
San Clemente, California
www.sanclemente.gov
Council Chambers
5:00 p.m. Closed Session (Special Meeting)
5:30 p.m. Regular Business Meeting (Regular Meeting)
Mayor Loeffler
Mayor Pro Tem Knoblock
Councilmember Cabral
Councilmember Enmeier
Councilmember Wu
These minutes reflect the order in which items appeared on the meeting agenda and do not necessarily reflect the order in which items were actually considered.
A Regular Meeting of the San Clemente City Council was called to order by Mayor Loeffler on April 21, 2026 at 5:00 p.m. in the San Clemente City Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.
PRESENT: Cabral, Enmeier, Knoblock, Wu and Mayor Loeffler STAFF PRESENT: Andy Hall, City Manager; Gena Burns, Deputy City Attorney; Laura Campagnolo, City Clerk; Megan Jimenez, Deputy City Clerk
CLOSED SESSION
Motion by Mayor Pro Tem Knoblock, second by Councilmember Enmeier, CARRIED 5-0, to recess to Closed Session at 5:00 p.m. to discuss the following:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Discussion concerning real property transactions in compliance with Government Code section 54956.8 regarding:
Real Property Negotiations: APN: 690-552-06
Property: Richard T. Steed Memorial Park
City Negotiators: Andy Hall, City Manager, Brian Brower, Assistant City Manager, Samantha Wylie, Beaches, Parks and Recreation Director
Negotiating Parties: Rhinos Rugby
Under Negotiations: Price and terms for potential Financial Contribution for Development and Use Agreement
AYE: Cabral, Enmeier, Knoblock, Wu and Mayor Loeffler
NOE: None
Closed Session concluded at 5:26 p.m.