CONTRACT NO. 3622(CCS)
AGREEMENT FOR
SALE OF LAND FOR PRIVATE DEVELOPMENT
By and Between
CITY OF SANTA MONICA
and
OCEAN PARK VILLAS
SECTION 1.
SECTION 2.
SECTION 3.
SECTION 4.
SECTION 5.
SECT-ION 6.
SECTION 7.
SECTION 8.
SECTION 9.
SECT,ION 10.
SECTION 11.
SECTION 12.
SECTION 13.
TABLE OF CONTENTS
PART I
BASIC AGREEMENT
PAGE
SALE: PURCHASE PRICE. . . . . . . . . . 2
CONVEYANCE OF PROPERTY. . . . . . . . . 2
(a) Condition of Title and Form of Deed 2
(b) Preliminary Title Report. . . . . . 3
(c) Escrow. . . . . . . . . . . . . . . 3
(d) Conveyance of Title and Delivery of Possession. 6
(el Time and Place for Delivery of Deed. . . . . 6
(f) Payment of the Purchase Price and Recordation of Deed 7 (g) Title Insurance . . . 7
(h) Taxes and Assessments . 7
(i) Occupants of the Site. 8
(jl Condition of the Site: No Warranties 8
(k) Right to Specific Performance 8
GOOD FAITH DEPOSIT. . 8
(a) Amount. . . 8
(b) Developer's Bonds 9
(c) Interest. . . . . 9
(dl Application to Purchase Price 9
•(e) Retention by City . . . 9
(fl Return to Developer. . 9
TIME FOR COMMENCEMENT AND COMPLETION OF IMPROVEMENTS 10 TIME FOR CERTAIN OTHER ACTIONS . . . . . . . . . . 10
(a) Time for Submission of Construction Plans . . 10
(bl Time for Submission of Corrected Construction Plans 10 (cl Maximum Time for Approved Construction Plans. . . . 10 (dl Time for City Action on Change in Construction Plans. 11 (el Time for Submission of Evidence of
Equity Capital and Mortgage Financing 11
PERIOD OF DURATION OF COVENANT ON USE. 11
NOTICES AND DEMANDS. . . . . . . . . 11
SPECIAL PROVISIONS . . . . . . . . . . 12
(a) Low and Moderate Income Housing . 12
(b) Bodily Injury and Property Damage Insurance 13
(cl Maintenance of Land Prior to Construction 13
(dl Tax Exemption . . . . . . . . . 13
(el Joint Ventures and Partnerships 13
(fl Execution of Documents. 14
(g) Occupant Selection. . . . 14
CONFLICTS WITH PART II . . . . 14
BEST EFFORT AND DUE DILIGENCE. 15
COUNTERPARTS . . . . . . . . . 15
ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS 15
TIME FOR ACCEPTANCE OF AGREEMENT BY CITY 15
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ARTICLE I.
ARTICLE II.
ARTICLE III.
ARTICLE IV.
ARTICLE V.
PART II
TERMS AND CONDITIONS
RIGHTS OF ACCESS TO PROPERTY ..... .
SECTION 101.
SECTION 102.
SECTION 103.
Right of Entry for Utility
Developer Not to Construct
Utility Easements .... .
Access to Property ... .
Service
Over
CONSTRUCTION PLANS; CONSTRUCTION OF IMPROVEMENTS;
CERTIFICATE OF COMPLETION ............ .
SECTION 201. Plans for Construction of Improvements
SECTION 202.
SECTION 203.
(a) Scope of Development ...
(b) Basic Concept Drawings ..
(c) Construction Drawings and
Related Documents ... ' ..
(d) Landscaping Plan .... .
(e) City Approval of Construction
Plans and Drawings ... .
Changes in Construction Plans .. .
Evidence of Equity Capital and
Mortgage Financing ....... . SECTION 204. Approvals of Construction Plans and Evidence of Financing as Conditions
Precedent to Conveyance .... SECTION 205. Commencement and Completion of SECTION 206.
SECTION 207.
RESTRICTIONS
SECTION 301.
SECTION 302.
SECTION 303.
PROHIBITIONS
SECTION 401.
SECTION 402.
SECTION 403.
SECTION 404.
Construction of Improvements
Progress Reports .....
Certificate of Completion.
UPON USE OF PROPERTY ... .
Restrictions on Use ... .
Covenants; Binding Upon Successors
in Interest; Period of Duration.
City and United States Rights to Enforce
AGAINST ASSIGNMENT AND TRANSFER ... .
Representations as to Development .. . Prohibition Against Transfer of Shares of Stock; Binding Upon Stockholders
Individually ........... . Prohibition Against Transfer of Property and Assignment of Agreement
Information as to Stockholders
MORTGAGE FINANCING; RIGHTS OF MORTGAGEES .....
SECTION 501. Limitation Upon Encumbrance of Property.
SECTION 502. Mortgagee Not Obligated to Construct
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2 2
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4 4
4 5
5 6
6 8
9 10
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11 14
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15 ARTICLE V.
ARTICLE VI.
ARTICLE VII.
MORTGAGE FINANCING; RIGHTS OF MORTGAGEES (Cont.)
SECTION 503. Copy of Notice of Default to Mortgagee
SECTION 504. Mortgagee's Option to Cure Defaults ..
SECTION 505. City's Option to Pay Mortgage
SECTION 506.
SECTION 507.
REMEDIES ..
SECTION 601.
SECTION 602.
SECTION 603.
SECTION 604.
Debt or Purchase Property ...... . City's Option to Cure Mortgage Default Mortgage and Holder.
In General .
Termination by Developer
Prior to Conveyance ... Termination by City Prior to Conveyance.
Revesting Title in City Upon Happening
of Event Subsequent to Conveyance
to Developer .......... . SECTION 605. Resale of Reacquired Property; Disposition of Proceeds ..... .
SECTION 606. Other Rights and Remedies of City;
No Waiver by Delay ....... .
SECTION 607. Enforced Delay in Performance for
SECTION 608.
SECTION 609.
Causes Beyond Control of Party
Rights and Remedies Cumulative
Party in Position of Surety
With Respect to Obligations.
MISCELLANEOUS. . . . . . . . . . . . . . .
SECTION 701.
SECTION 702.
SECTION 703.
SECTION 704.
Conflict in Interests; City
Representatives Not Individually Liable.
Equal Employment Opportunity .. Provisions Not Merged With Deed.
Title of Articles and Sections.
ATTACHMENTS
ATTACHMEN~ NO. l
ATTACHMENT NO. 2
ATTACHMENT NO. 3
ATTACHMENT NO. 4
PROPERTY MAP
LEGAL DESCRIPTION OF THE PROPERTY
SCHEDULE OF PERFORMANCE
SCOPE OF DEVELOPMENT
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16 17
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PART I
BASIC AGREEMENT
This AGREEMENT, consisting of this Part I and Part II and four (4) Attachments annexed hereto and made a part hereof (which Part I, Part II and Attachments are together hereinafter called "Agreement") is made on or as of the =---=--- day of ----~' 1981, by and between the CITY OF SANTA MONICA, California, a municipal corporation (which, together with any successor public body or officer hereafter designated by or pursuant to law, is hereinafter called "City"), and having its office at City Hall, 1685 Main Street, in the City of Santa Monica, State of California, and OCEAN PARK VILLAS, a limited partnership organized and existing under the laws of the State of California (hereinafter called "Developer") and having an office for the transaction of business at 5150 Overland Avenue, in the City of Culver City, State of California.
WITNESSETH:
WHEREAS, the City has acquired certain real property located in the City of Santa Monica as shown on the "Property Map" incorporated herein and attached to this Agreement as Attachment No. 1, and described in the "Legal Description of the Property" incorporated herein and attached to this Agreement as Attachment No. 2 (hereinafter called "Property"); and,
WHEREAS, the City acquired the Property with Community
Development Block Grant funds for the expressed purpose of facilitating the development of housing for low and moderate income households; and,
WHEREAS, the City has offered to sell and the Developer is willing to purchase the Property; and,
WHEREAS, the Developer is willing to develop the Property for and in accordance with the uses specified in this Agreement, and only after receipt of commitment of acceptable financing for the .Project from the U. S. Department of Housing and Urban Development or any other acceptable finance entity (hereinafter called "HUD"; and,
WHEREAS, the City believes that the development of the
Property pursuant to the Agreement, and the fulfillment generally of the Agreement, are in the vital and best interests of the City and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of the applicable Federal, State and local laws and requirements under which the Property has been acquired and is being assisted. -1-
NOW, 1HEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows:
SECTION 1, SALE: PURCHASE PRICE
Subject to all the terms, covenants, and conditions of the Agreement, the City agrees to sell the Property to the
Developer for, and the Developer agrees to purchase the Property from the .City and pay therefor, the amount of Two Hundred Thirteen Thousand, Three Hundred Dollars ($213,300), or adjustments thereof based on a land price of Eight Thousand, Eight Hundred Eighty-Seven and 50/100 Dollars ($8,887.50) per residential unit to be developed. In the event that portion of HUD financing funds allowable for land cost differs from the "Purchase Price" as stated above, the City agrees to sell and the Developer agrees to purchase the Property for the amount allowable for land cost, which price shall not be less than One Hundred Thousand Dollars
($100,000),
SECTION 2. CONVEYANCE OF PROPERTY
(a) Condition of Title and Form of Deed. The City
shall convey to the Developer title to the Property by
grant deed (hereinafter called "Deed") in a form mutually satisfactory to the Developer, the title company which
will insure the title hereunder, and the City. Title
shall be fee simple merchantable, subject to the subsequent condition provided for in Section 604 hereof, free and clear of all recorded and unrecorded liens, encumbrances, covenants, assessments, easements, leases and taxes, except as are set forth or referred to elsewhere in this Agreement, and except as are set forth below:
(i) Easements, if any, described in the Legal
Description of the Property.
(ii) Excepting and reserving from the Property all oil, gas, hydrocarbon substances and minerals of every
kind and character lying more than five hundred
(500) feet below the surface of the Property,
together with the right to drill into, through and
to use and occupy all parts of the Property lying
more than five hundred· (500) feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas,
hydrocarbon substances, or minerals from the Property or other lands, but without, however, any right to use either the surface of the Property or
any portion of said Property within five hundred
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(500) feet of the surface for any purpose or
purposes whatsoever to the extent reserved by the
parties named in deeds, leases and other documents
of record.
(b) Preliminary Title Report. The City will provide
a Preliminary Title Report for the land within ten (10) days after signing of the Agreement. If ten (10) days
from that time, written notice of disapproval has not
been received by the City from the Developer,· the title report shall be deemed approved. If, however,· the
Developer submits written notice of disapproval within
ten (10) days of receipt of Preliminary Title Report, the City must cure all defects prior to the close of escrow without expense to the Developer.
(c) Escrow. The City agrees to open an escrow with
California Land .Title Company or other escrow company
mutually satisfactory to the City and the Developer (the "Escrow Agent"), in Los Angeles County, California,
within five (5) days after receipt by the City of a
written request from the Developer. This Agreement
constitutes the joint escrow instructions of the City and the Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of escrow. The City and the Developer shall provide such additional escrow instructions as shall be necessary and consistent with this Agreement. The Escrow Agent is
hereby empowered to act under this Agreement, and upon
indicating its acceptance of the provisions of this
Section in writing, delivered to the City and to the
Developer within five (5) days after the opening of the escrow, the Escrow Agent shall carry out its duties as
Escrow Agent hereunder.
Upon delivery of a deed to the Escrow Agent by the City, the Escrow Agent shall record such deed on the closing
date specified in additional escrow instructions to be
provided by the City and the Developer in accordance with the terms and provisions of this Agreement. The Escrow
Agent shall buy, affix and cancel any transfer stamps
required by law. Any insurance policies governing the
Property are not to be transferred.
The Developer shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the
Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten
(10) days prior to the scheduled date for the close of
escrow:
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(i) One-half of the escrow fee.
(ii) That portion of the premium for the title insurance policy to be paid by the Developer as set forth in
paragraph (g) of this Section.
(iii) The Purchase Price for the Property.
The City shall pay in escrow to the Escrow Agent the
following fees, charges and costs promptly after the
Escrow Agent has notified the City of the amount of such fees, charges and costs, but not earlier than ten (10)
days prior to the scheduled date for close of escrow:
(i) Costs necessary to place title in the condition
for conveyance required by the provisions of
this Agreement.
(ii) One-half of the escrow fee.
(iii) Any recording fees.
(iv) Notary fees.
(v) That portion of the premium for the title
insurance policy to be paid by the City as set
forth in paragraph (g) of this Section.
(vi) Ad valorem taxes, if any, upon the Property or
upon this Agreement, or any rights thereunder
prior to conveyance of title.
(vii) Any State, County or City documentary stamps.
(vii) Any transfer tax.
The City through its City Manager shall timely and
properly execute, acknowledge and deliver a Deed in
substantially the form established in paragraph (a) of
this Section conveying to the Developer title to the
Property in accordance with the requirements of paragraph (d) of this Section, together with an estoppel certificate certifying that the Developer has completed all acts (except deposit of the Purchase Price) necessary to entitle the Developer to such conveyance, if such be the fact.
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The Escrow Agent is authorized to:
(i) Pay and charge the City and the Developer,
respectively, for any fees, charges and costs
payable under this Section. Before such payments
or charges are made, the Escrow Agent shall notify
the City and the Developer of the fees, charges
and costs necessary to clear title and close the
escrow.
(ii) Disburse funds and deliver the Deed and other
documents with respect to the Property to the
parties entitled thereto when the conditions of
this escrow have been fulfilled by the City and
the Developer. The Purchase Price for the
Property shall not be disbursed by the Escrow
Agent unless and until it has recorded the Deed
thereto and has delivered to the Developer a title
insurance policy insuring title acceptable to the
Developer and the lender, and conforming to the
requirements of paragraph (g) of this Section.
(iii) Record any instruments delivered through this
escrow if necessary or proper to vest title in the
Developer in accordance with the terms and
provisions of this Agreement.
All funds received in this escrow shall be deposited by the Escrow Agent with other escrow funds of the Escrow
Agent in a general escrow account or accounts with any
State or National bank doing business in the State of
California. Such funds may be transferred to any other
such general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty (30) day month.
If this escrow is not in condition to close before or at the time for conveyance established in paragraph (d) of this Section, either party who is then not at fault, may, in writing to the other party, terminate this Agreement and demand of the Escrow Agent the return of its money, papers or documents. No termination or demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the
other party or parties at the address of its or their
principal place or places of business. If any objections are raised within the ten (10) day period, the Escrow
Agent is authorized to hold all money, papers and documents with respect to the Property until instructed by mutual agreement of the parties or upon failure thereof by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon as possible. -5-
The Escrow Agent shall not be obligated to return any
such money, papers or documents except upon the written instructions of both the City and the Developer, or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction.
Any amendment to these escrow instructions shall be in
writing and signed by both the City and the Developer.
At the time of any amendment, the Escrow Agent shall
agree to carry out its duties as Escrow Agent under such amendment.
All communications from the Escrow Agent to the City or the Developer shall be directed to the addresses and in the manner established in Section 7 of this Agreement for notices, demands, and communications between the City and the Developer.
The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under paragraphs (c) through (g), both inclusive, of this Section.
The City shall not be liable for any real estate
commissions or brokerage fees which may arise herefrom.
The City and Developer each represent to the Escrow Agent and to e.ach other that it has engaged no broker, agent or finder in connection with this transaction.
(d) Conveyance of Title and Delivery of Possession. Subject to any mutually agreed upon extension of time, conveyance to the Developer of title to the Property shall be
completed on or prior to the date specified on the
"Schedule of Performance" incorporated herein and
attached to this Agreement as Attachment No. 3.
Possession of the Property shall be delivered to
Developer concurrently with the conveyance of title,
except that limited access may be permitted before
conveyance of title as permitted by the City. The
Developer shall accept title and possession on or before said date of conveyance.
(e) Time and Place for Delivery o-f Deed. Subject
to any mutually agreed upon extension of time, the City shall deposit the Deed to the Property with the Escrow
Agent on or before the date established for the date of conveyance pursuant to the Schedule of Performance.
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(f) Payment of the Purchase Price and Recordation of Deed.
The Developer shall deposit the Purchase Price for the
Property with the Escrow Agent upon or prior to the date for conveyance thereof, providing that the Escrow Agent shall have notified the Developer in writing that the
Deed conveying the Property to the Developer, properly
executed and acknowledged by the City, has been delivered to the Escrow Agent and that title to the Property is in condition to be conveyed in conformity with the
provisions of paragraph (a) of this Section. The Escrow Agent shall deliver the Purchase Price to the City
simultaneously with (1) the delivery to the Developer of a title insurance policy insuring title in conformity
with paragraph (g) of this Section, and (2) the filing of the Deed for recordation among the land records in the
Office of the County Recorder for Los Angeles County.
(g) Title Insurance. Concurrently with recordation of the Deed conveying title to the Property, the City shall
instruct California Land Title Company ("Title Co."), or some other title insurance company satisfactory to the
City and the Developer, to provide and deliver to the
Developer a title insurance policy of such form that may be acceptable to HUD ensuring that the title is vested in the Developer in the condition required by paragraph (a) of this Section. The Title Co. shall provide the City
with a copy of the title insurance policy, and the title insurance policy shall be in the amount of the Purchase Price for the Property.
Concurrently with the recording of the Deed conveying
title to the Property, the City shall instruct the Title Co. to provide Developer with an endorsement to insure
the amount of the Developer's estimated construction
costs of the improvements to be constructed upon the
Property. The Developer shall pay the entire premium for any such increase in coverage requested by it.
The City shall pay only for that portion of the title
insurance premium attributable to a CLTA standard form
policy of title insurance in the amount of the Purchase Price of the Property. The Developer shall pay for all
additional premiums and for any extended coverage or
special endorsements.
(h) Taxes and Assessments. Ad valorem taxes and assessments, if any, on the Property, and taxes upon this Agreement or any rights thereunder levied, assessed, or imposed for any period commencing prior to conveyance of title shall be borne by the City. All ad valorem taxes
and assessments on the Property levied, assessed or
imposed for any period commencing after closing of the
escrow shall be paid by the Developer.
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(i) Occupants of the Site. Title to the Property shall
be conveyed free of any possession or right of possession except that of Developer, unless waived by Developer in writing.
(j) Condition of the Site: No Warranties. Developer hereby acknowledges that City has not made, does not make and
will not make any warranties or representations of any
kind or nature, expressed or implied, in law or in fact, with respect to the condition of the Property, and that Developer, by entering into this Agreement, acknowledges that it has made such legal, factual and other inquiries and investigations with respect to the Property as
Developer has deemed necessary or desirable, and that in entering into this Agreement, it has relied solely
thereon.
Further, it shall be the sole responsibility of Developer, at Developer's expense, to grade and take such other action as may be necessary to place the Property
and the soil condition of the Property in all other
respects in·a condition entirely suitable for the
development of the Property.
(k) Right to Specific Performance. Nothing in this Section 2 shall be construed to impair or affect the rights or obligations of the City or the Developer to specific performance of this Agreement.
SECTION 3. GOOD FAITH DEPOSIT
(a) Amount. The Developer has, prior to or simultaneously with the execution of the Agreement by the City,
delivered to the City a good faith deposit in the amount of Twenty Thousand Dollars ($20,000) (hereinafter called "Deposit") as security for the performance of the
obligations of the Developer to be performed prior to the return of the Deposit to the Developer, or its retention by the City as liquidated damages, or its application on account of the Purchase Price, as the case may be, in
accordance with the Agreement.
The Deposit, at the option of the Developer, may be in
the form of (1) cash, (2) cashier's or certified check, (3) irrevocable letter of credit, (4) negotiable
certificates of deposit issued by a Federal or State
bank, or (5) any combination of such checks, letter of
credit, certificates and cash. The Deposit, if cash or
cashier's check, shall be deposited in an account of the City in a bank or trust company selected by it.
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(b) Developer's Bonds. The Developer will furnish
to the City copies of bonds or other instruments of
surety as may be required by HUD for the financing of the project.
(c) Interest. The City shall be under no obligation
( d)
( e)
( f)
to pay or earn interest on the Deposit; but if interest is payable thereon, such interest, when received by the City, shall be promptly paid to the Developer.
Application to Purchase Price. In the event the
Developer is otherwise entitled to return of the Deposit pursuant to paragraph (f) of this Section, upon written request of the Developer the amount of the Deposit if
paid in cash or by certified or cashier's check shall be applied on account of the Purchase Price at the time
payment of the Purchase Price is made. Any amount the
Deposit exceeds the Purchase Price, that amount will be returned to Developer.
Retention by City. Upon termination of this
Agreement prior to conveyance as.provided in Section 603 hereof, the Deposit or the proceeds of the Deposit, if
not theretofore returned to the Developer pursuant to
paragraph (f) of this Section, including all interest
payable on such Deposit or the proceeds thereof .after
such termination, shall be retained by the City as
provided in Section 603 hereof.
Return to Developer. Upon termination of this
Agreement prior to conveyance as provided in Section 602 hereof, the Deposit shall be returned to the Developer by the City. If the Agreement shall not have been
theretofore terminated, and if no cause for termination then exists, the City shall return the Deposit to the
Developer upon receipt by the City of the following:
(i) A copy of the commitment or commitments obtained
by the Developer for the mortgage loan or loans to
assist in financing the construction of the
Improvements (as defined in Section 201 hereof),
certified by the Developer to be a true and
correct copy or copies thereof.
(ii) Evidence satisfactory to the City that the interim mortgage loan to assist in financing the
construction of the Improvements has been
initially closed.
(iii) A copy of the contract between the Developer and
the general contractor for the construction of
Improvements, certified by the Developer to be a
true and correct copy thereof.
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(iv) A copy of the contract bond provided by the
general contractor in connection with the
aforesaid construction contract which bond shall
be in a sum equal to not less than one hundred
percent (100%) of the contract price under said
construction contract, certified by the Developer
to be a true and correct copy thereof. As an
alternative to the abovementioned bond, Developer
shall furnish a copy of an Assurance of Completion
Agreement and a Letter of Credit (both hereinafter
called "said Letter.of Credit") in favor of the
project lender in an amount equal to not less than
fifteen percent (15%) of the HUD estimate of the
cost for construction of the project as an
assurance of completion. Said Letter of Credit
shall be certified by the Developer to be a true
and correct copy thereof.
SECTION 4. TIME FOR COMMENCEMENT AND COMPLETION OF IMPROVEMENTS The construction of the Improvements referred to in Section 201 hereof shall commence and be completed within the times set forth in the Schedule of Performance. Such periods of time may be extended from time-to-time by the City and shall be extended as necessary to comply with the provisions of Section 607 which are incorporated in this Section 4 as fully set forth.
SECTION 5. TIME FOR CERTAIN OTHER ACTIONS
(a) Time for Submission of Construction Plans. The time within which the Developer shall submit its Construction Plans (as defined in Section 201 hereof) to the City in any event shall not be later than the dates set forth in the Schedule of Performance.
(b) Time for Submission of Corrected Construction Plans.
Except as provided in paragraph (c) of this Section 5,
the time within which the Developer shall submit any new or corrected Construction Plans as provided for in
Section 201 hereof shall be not later than thirty (30)
days after the date the Developer receives written notice from the City of the City's rejection of the Construction Plans referred to in the latest such notice.
(c) Maximum Time for Approved Construction Plans. In
any event, the time within which the Developer shall
submit Construction Plans which conform to the requirements of Section 201 hereof and are approved by the City shall be not later than dates set forth in the Schedule of Performance for the approval of such plans by the
City.
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(d) Time for City Action on Change in Construction Plans.
The time within which the City may reJect any change in the Construction Plans as provided in Section 202 hereof shall be fifteen (15) days after the date of the City's receipt of notice of such change.
(e) Time for Submission of Evidence of Equity Capital and Mortgage Financing. The time within which the Developer shall submit to the City, in any event, evidence as to
equity capital and any commitment necessary for mortgage financing as provided in Section 203 hereof shall be not later than the date set forth in the Schedule of
Performance for the submission of such evidence.
SECTION 6. PERIOD OF DURATION OF COVENANT ON USE
The covenants pertaining to the uses of the Property, set forth in this Agreement and 'the Deed, shall remain in effect until thirty ( 30) years from the date of the Deed or until the maturity date of the mortgage, whichever is longer, except that the covenants against discrimination shall remain in perpetuity.
Except as otherwise expressly provided in Section 604 hereof, breach of any of the covenants or provisions contained in this Agreement shall not give rise to any right of reverter, to any estate of reverter, nor to any right of reentry or forfeiture of the Property or any part thereof or of any interest therein to the City.
SECTION 7. NOTICES AND DEMANDS
A notice, demand, or other communication under the Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and
(i) in the case of the Developer, is addressed to or
delivered personally to the Developer at 15233
Ventura Blvd., Suite 816, Sherman Oaks, CA 91403;
and,
(ii) in the case of the City, is addressed to or
delivered personally to the City at City Hall,
1685 Main Street, Santa Monica, CA 90401;
or at such other address with respect to either such party as that party may from time-to-time designate in writing and transmitted to the other as provided in this Section.
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SECTION 8. SPECIAL PROVISIONS
(a) Low and Moderate Income Housing. The purpose of
this Agreement is to provide for the construction and
maintenance of low and moderate income housing. The City wishes to ensure that after completion of development,
the housing constructed hereunder will remain available to families of low and moderate income. Therefore, the
Developer agrees for itself, its successors and assigns, and every successor in interest to the Property, or any part thereof, and the Deed shall contain covenants to the effect, that:
(i) Developer nor his successors in interest shall not
pay or cause the satisfaction or discharge of the
mortgage debt on the Property before the due date
therefor without the prior written approval of the
City.
(ii) At the end of thirty (30) years after completion
of development of the Property, or after maturity
date of the mortgage, whichever is longer, the
City shall have the right to purchase the Property
and all Improvements thereon at a price equal to
the amount of the original mortgage. The City
shall notify Developer of its intent to exercise
its option to purchase the Property and Improvements within ninety (90) days after the end of the term of the mortgage. Thereafter, the City shall
have an additional ninety (90) days in which to
purchase the Property and Improvements.
If the City fails to exercise its option to purchase the Property and the Improvements, then the Developer shall, within ninety (90) days following
receipt of the appraisal described below, pay to
the City a sum equal to the fair market value of
the land which shall be appraised pursuant to the
procedures set forth below on the basis of highest
and best use. The amount of the original Purchase
Price shall be deducted from the fair market value
of the land. If the Developer fails to pay to the
City such fair market value of the land, then the
City shall have the right to reenter and take
possession of the land and the Improvements, and
title of Developer to said land and Improvements
shall terminate and revest in the City.
The fair market and value of the land shall be
determined within ninety (90) days following the
City's failure to exercise its option, by an
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M.A.!. appraiser agreed to and paid equally by
both parties. If the parties cannot agree upon
the selection of an appraiser, then each party
shall appoint an appraiser, and the two (2)
appraisers shall in turn appoint a third
appraiser. The third appraiser shall then
determine the fair market value of the land.
If the City thereafter operates and maintains the
housing, said operation and maintenance shall be
in accordance with the then existing laws.
(b) Bodily Injury and Property Damage Insurance. Before commencement of any work of Improvements upon the Property, the Developer shall furnish or cause to be furnished to the City duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least Five Hundred Thousand Dollars ($500,000) for any person, Two Million Dollars ($2,000,000) for any occurrence and Three Hundred Thousand Dollars ($300,000) property damage, naming the City of Santa Monica, members of its City Council, boards or commissions, officers, agents, servants, and employees while acting as such, as co-insured as their interest
might appear.
(c} Maintenance of Land Prior to Construction. The Developer shall maintain the cleared land it acquires in a neat and orderly condition between the date of acquisition and the commencement of construction.
(d) Tax Exemption. The Property shall not be removed
from the property tax rolls and shall not be exempted
from property tax payments, except under programs now or hereafter enacted by the State of California for the
general relief of homeowners, and the Deed shall contain covenants to that effect. Developer for itself and for
its successors and assigns agrees not to file an
application for exemption from property tax assessment
and payment, except for those exemptions which may now
exist or hereafter be enacted by the State of California for the general relief of homeowners. This in no way
limits Developer's right to question or seek reduction of any assessed valuation of the Property.
(e} Joint Ventures and Partnerships. Notwithstanding
any other provision of this Agreement, including the
provisions contained in Part II hereof, the Developer
reserves the right at its discretion to join and
associate with other entities in joint venture, limited or general partnerships or otherwise for the purpose of acquiring and developing the Property or a portion
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\
thereof, provided that at all times prior to the
recordation of a Certificate of Completion by the City
for the Property, Jona Goldrich, Sol Kest, Robert Hirsch and Warren Breslow will remain fully responsible to the City, and provided that such joint venture, partnership or other entity agrees in writing to be bound by all of the provisions of this Agreement. It is particularly
anticipated that a partnership may be formed in which
the Developer will be a general partnef and that other
persons or entities will be associated as limited and/or general partners. Such an agreement is acceptable to
the City subject to all of the provisions of this
Section 8. Section 403 (bl (4l shall not apply to or
limit the amount of capital or equity contributed by
any person or entity participating in the development
entity.
Whenever the term "Developer" is used herein, such term shall include any permitted assignee as herein provided. (fl Execution of Documents. The City and the Developer
agree to execute any and all documents that may be
necessary or properly required by HUD in connection with this Project.
(gl Occupant Selection. Developer agrees that initial and subsequent occupants shall be selected by lottery or
other equitable method as permitted by Federal Section 8 regulations, and approved by the City.
The Developer additionally agrees to use its best efforts to assure that the City's ethnic and racial minorities
are given equal access to the units to be developed, and that the Developer will provide a report to the City on the ethnic and racial composition of the tenants at the time of original leaseup and annually thereafter during the term of this Agreement.
SECTION 9. CONFLICTS WITH PART II
In the event of any inconsistency or conflict between the provisions of this Part I and Part II of this Agreement, the provisions of Part I shall prevail over those contained in Part II.
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SECTION 10. BEST EFFORT AND DUE DILIGENCE
Both City and Developer agree to use all best efforts and due diligence to timely perform and satisfy all of their respective cove nan ts and conditions imposed under the Agreement.
SECTION 11. COUNTERPARTS
This Agreement is executed in five (5) counterparts, each of which is deemed to be an original.
SECTION 12. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the City or the Developer, and all amendments hereto must be in writing by the appropriate authorities of the City and the Developer.
SECTION 13. TIME FOR ACCEPTANCE OF AGREEMENT BY CITY'
This Agreement, when executed by the Developer and delivered to the City, must be authorized, executed and delivered by the City within sixty (60} days after the date of signature by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when the Agreement shall have been signed by the City.
IN WITNESS WHEREOF, the City and the Developer have signed this Agreement as of the dates set opposite their signatures.
Date:
Date:
OCEAN
By _________ ---=--------,-=--=--
General Partner
Date:
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PART II
TERMS AND CONDITIONS
ARTICLE I. RIGHTS OF ACCESS TO PROPERTY
SECTION 101. Right of Entry for Utility Service.
The City reserves for itself, and any public utility
company as may be appropriate, the unqualified right to enter upon the Property at all reasonable times for the purpose of reconstructing, maintaining, repairing, or
servicing the public utilities located within the
Property boundary lines and provided for in the
easements described or referred to in paragraph (a)
Section 2 Part I hereof.
SECTION 102. Developer Not to Construct Over Utility
Easements.
The Developer shall not construct any building or other structure or improvement on, over, or within the boundary lines of any easement for public utilities described or referred to in paragraph (a) Section 2 Part I hereof, unless such construction is provided for in
such easement or has been approved by the City. If
approval for such construction is requested by the
Developer, the City shall use its best efforts to assure that such approval shall not be withheld unreasonably.
SECTION 103. Access to Property.
Prior to conveyance of the Property by the City to the
Developer, the City shall permit representatives of the Developer to have access to any part of the Property to which the City holds title at all reasonable times for
the purpose of obtaining data and making various tests
concerning the Property necessary to carry out the
Agreement. After the conveyance of the Property by the
City to the Developer, the Developer shall permit the
representatives of the City access to the Property at
all reasonable times which any of them deems necessary
for the purposes of the Agreement i.ncluding, but not
limited to, inspection of all work being performed in
connection with the construction of the Improvements.
No compensation shall be payable nor shall any charge be made in any form by any party for the access provided
for in this Section.
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ARTICLE II. CONSTRUCTION PLANS; CONSTRUCTION OF IMPROVEMENTS; CERTIFICATE OF COMPLETION.
SECTION 201. Plans for Construction of Improvements.
Plans and specifications for the development of the
Property and the construction of improvements thereon
( hereinafter referred to as the "Improvements") shall -be in conformity with the Scope of Development, the Basic
Concept Drawings, and all applicable State and local
laws and regulations.
(a) Scope of Development. The Property shall be
developed within the limitations established in the
"Scope of Development" incorporated herein and
attached to this Agreement as Attachment No. 4.
(b) Basic Concept Drawings. The Developer has prepared
and submitted to the City, Basic Concept Drawings
and related documents for the development of the
Property. The City and the Developer have
initialed and dated each page of those drawings and
documents. The Property shall be developed as
established in the Basic Concept Drawings and
related documents except as changes may be mutually
agreed upon between the Developer and the City.
Any such changes shall be within the limitations of
the Scope of Development.
(c) Construction Drawings and Related Documents. The
Developer shall prepare and submit construction
drawings and related documents to the City for
architectural review and written approval for the
Property as provided in the Schedule of
Performance. Such construction drawings and
related documents shall be submitted in two
stages--preliminary and final working drawings.
Final drawings and plans are hereby defined as
those in sufficient detail to obtain a building
permit. Approval of progressively more detailed
drawings and spec,ifications will be promptly
granted by the City if they are not in conflict
with drawings or specifications theretofore
approved. Any items so submitted and approved in
writing by the City shall not be subject to
subsequent disapproval.
During the preparation of all drawings and plans,
the City and the Developer shall hold regular
progress meetings to coordinate the preparation of,
submission to, and review of construction plans and
related documents by the City. Said parties shall
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communicate and consult informally as frequently as
is necessary to insure that the formal submittal of
any documents to the City can receive prompt and
speedy consideration.
If any revisions or corrections shall be required
by any Government official, agency, department or
bureau having jurisdiction, or any lending
institution involved in the financing, the
Developer and the City shall cooperate in efforts
to ·obtain waiver of such requirement or to develop
a mutually acceptable alternative. If no such
waiver is obtained and no such alternative is
developed, the City shall be bound by such
revisions or corrections if they are not
inconsistent with the Scope of Development.
(d) Landscaping Plan. The Developer shall prepare and
submit to the City for approval preliminary and
final landscaping and finish grading plans for the
Property. Said plans shall be prepared and
submitted within the times set forth in the
Schedule of Performance.
(e) City Approval of Construction Plans and Drawings.
The City shall have the right of architectural
review of all plans and submissions, including
changes therein.
The City shall approve or disapprove the plans,
drawings and related documents referred to in
paragraphs (c) and {d) of this Section within the
times established in the Schedule of Performance.
Failure by the City to either approve or disapprove
within the times established in the Schedule of
Performance shall be deemed an approval. Any
disapproval shall state' in writing the reasons for
disapproval. All subsequent time limits imposed on
Developer shall be automatically extended by the
elapsed time of such disapproval process, All
plans, drawings and related documents approved in
writing by the City shall not be subject to
subsequent disapproval.
SECTION 202. Changes in Construction Plans.
If prior to commencement of construction the Developer
desires to make any change in the construction plans
after their approval by the City, the Developer shall
submit the proposed change to the City for its approval.
If the construction plans, as modified by the proposed
change, conform to the requirements of Section 201
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hereof and the Scope of Development, the City shall
approve the proposed change and notify the Developer in writing within fifteen (15) days after receipt thereof
by the City. Such change in construction plans, in any
event, shall be deemed approved by the City unless
rejected by the City, in whole or in part, by written
notice to the Developer within said fifteen (15) day
period setting forth in detail the reasons therefor.
If, after commencement of construction, the Developer
desires to make any modifications in construction,
Developer shall submit such proposed modifications to
the City for approval which approval shall be timely
given with all due regard for circumstances then
prevailing. And, in any event, such proposed modification shall be deemed approved unless rejected by the City within three (3) working days after receipt of such modifications.
SECTION 203, Evidence of Equity Capital and Mortgage
Financing.
As promptly as possible after approval by the City of
the Construction Plans, and, in any event, no later than the time specified therefor in paragraph {e) Section 5
Part I hereof, the Developer shall submit to the City
evidence satisfactory to the City that the Developer has the equity capital and commitments for mortgage
financing necessary for the construction of the
Improvements.
SECTION 204, Approvals of Construction Plans and Evidence of Financing as Conditions Precedent to Conveyance.
The submission of Construction Plans and their approval by the City as provided in Section 201 hereof, and the
submission of evidence of equity capital and commitments for mortgage financing as provided in Section 203
hereof, are conditions precedent to the obligation of
the City to convey the Property to the Developer.
SECTION 205, Commencement and Completion of Construction of Improvements.
The Developer agrees for itself, its successors and
assigns, and every successor in interest to the Property, or any part thereof, and the Deed shall contain covenants on the part of the Developer for itself and
such successors and assigns, that the Developer, and
such successors and assigns, shall promptly begin and
diligently prosecute to completion the development of
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the Property through the construction of the Improvements thereon, and that such construction shall in any event begin within the period specified in Section 4
Part I hereof and be completed within the period
specified in such Section 4. It is intended and agreed, and the Deed shall so expressly provide, that such
agreements and covenants shall be covenants running with the land and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in the Agreement itself, be, to the fullest
extent permitted by law and equity, binding for the
benefit of the community and the City and enforceable by the City against the Developer and its successors and
assigns to or of the Property or any part thereof or any interest therein.
SECTION 206. Progress Reports.
Subsequent to conveyance of the Property or any part
thereof to the Developer, and until construction of the Improvements has been completed, the Developer shall
make reports in such detail and at such times as may
reasonably be requested by the City as to the actual
progress of the Developer with respect to such
construction.
SECTION 207. Certificate of Completion.
(a} Promptly after completion of the Improvements in
accordance with those provisions of the Agreement
relating solely to the obligations of the Developer
to construct the Improvements (including the dates
for beginning and completion thereof) and subject
to the issuance of a Certificate of Occupancy by
the Building Department of the City, the City
through its City Manager will furnish the Developer
with an appropriate instrument so certifying. Such
certification by the City shall be (and it shall be
so provided in the Deed and in the certification
itself) a conclusive determination of satisfaction
and termination of the agreements and covenants in
the Agreement and in the Deed with respect to the
obligations of the Developer, and its successors
and assigns, to construct the Improvements and the
dates for the beginning and completion thereof.
Such certification and such determination shall not
constitute evidence of compliance with or
satisfaction of any obligation of the Developer to
any holder of a mortgage, or any insurer of a
mortgage, securing money loaned to finance the
Improvements, or any part thereof.
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(b) With respect to such individual parts or parcels of the Property which, if so provided in Part I
hereof, the Developer may convey or lease as the
Improvements to be constructed thereon are
completed, the City will also, upon proper completion of the Improvements relating to any such part or parcel, certify to the Developer that such
Improvements have been made in accordance with the
provisions of the Agreement.
(c) Each certification provided for in this Section 207 shall be in such form as will enable it to be
recorded in the proper office for the recordation
of deeds and other instruments pertaining to the
Property, including the Deed. If the City shall
refuse or fail to provide any certification in
accordance with the provisions of this Section, the
City shall, within thirty (30) days after written
request by the Developer, provide the Developer
with a written statement, indicating in adequate
detail in what respects the Developer has failed to
complete the Improvements in accordance with the
provisions of the Agreement, or is otherwise in
default, and what measures or acts it will be
necessary, in the opinion of the City, for the
Developer to take or perform in order to obtain
such certification.
ARTICLE III. RESTRICTIONS UPON USE OF PROPERTY
SECTION 301. Restrictions on use.
The Developer agrees for itself, its successors and
assigns, and every successor in interest to the
Property, or any part thereof, and the Deed shall
contain covenants on the part of the Developer for
itself, and such successors and assigns, that the
Developer, and such successors and assigns, shall:
(a) Devote the Property to, and only to and in
accordance with, the uses specified in the Deed and
the Scope of Development.
(b) Not discriminate upon the basis of race, color,
ancestry, national origin, religious creed, age,
sex, marital status, or physical handicap in the
sale, lease, or rental or in the use or occupancy
of the Property or any improvements erected or to
be erected thereon, or any part thereof.
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(c) Include the legend, "An Open Occupancy Building" in type or lettering of easily legible size and design
in all advertising (including signs) for the sale
and/or rental of the whole or any part of the
Property. The word "Project" or "Development" may
be substituted for the word "Building" where
circumstances require substitution.
(d) Comply with regulations issued by the Secretary of
Housing and Urban Development set forth in 37 F.R.
22732-3 and all applicable rules and orders issued
thereunder which prohibit the use of lead-based
paint in residential structures undergoing
Federally-assisted construction or rehabilitation
and require the elimination of lead-based paint
hazards.
The Developer shall refrain from restricting the
rental, sale or lease of the Property on the basis
of race, color, ancestry, national origin,
religious creed, age, sex, marital status, or
physical handicap of any person. All deeds, leases
or contracts for the sale, lease, sublease, or
other transfer of the Property shall contain or be
subject to the following nondiscrimination and
nonsegregation clauses:
( i) In deeds: "The grantee herein covenants by
and for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through them, that
there shall be no discrimination against or
segregation of any person or group of persons
on account of race, color, ancestry, national
origin, religious creed, age, sex, marital
status, or physical handicap in the sale,
lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein
conveyed·, nor shall the grantee himself or
herself or any person claiming under or
through him or her, establish or permit any
such practice or practices of discrimination
or segregation with reference to the
selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
( ii) In leases: "The lessee herein covenants by
and for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through him or her,
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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, ancestry, national
origin, religious creed, age, sex, marital
status, or physical handicap in the leasing,
subleasing, transferring, use or enjoyment of
the land herein leased nor shall the lessee
himself or herself, or any person claiming
under or through him or her, establish or
permit any 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."
( iii) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color,
ancestry, national origin, religious creed,
age, sex, marital status, or physical handicap
in the sale, lease, sublease, transfer, use or
occupancy, tenure or enjoyment of the land,
nor shall the transferee himself or herself or
any person claiming under or through him or
her, establish or permit any such practice or
practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the
land. 11
SECTION 302, Covenants; Binding Upon Successors in Interest; Period of Duration.
It is intended and agreed, and the Deed shall so
expressly provide, that the agreements and covenants
provided in Section 301 hereof shall be covenants
running with the land and that they shall, in any event, and without regard to technical classification or
designation, legal or otherwise, and except only as
otherwise specifically provided in the Agreement, be
binding, to the fullest extent permitted by law and
equity, for the benefit and in favor of, and enforceable by, the City and any successor in interest to the
Property, or any part thereof, and the United States (in the case of the covenant provided in paragraph (b)
Section 301 hereof), against the Developer, its
successors and assigns and every successor in interest
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to the Property, or any part thereof or any interest
therein, and any party in possession or occupancy of the Property or any part thereof. It is further intended
and agreed that the agreement and covenant provided in
paragraph (a) Section 301 hereof shall remain in effect for the period of time, or until the date, specified or referred to in Section 6 Part I hereof (at which time
such agreement and covenant shall terminate) and that
the agreements and covenants provided in paragraph (b)
Section 301 hereof shall remain in effect without
limitation as to time: Provided, that such agreements
and covenants shall be binding on the Developer itself, each successor in interest to the Property, and every
part thereof, and each party in possession or occupancy, respectively, only for such period as such successor
or party shall have title to, or an interest in, or
possession or occupancy of, the Property or part thereof.
SECTION 303. City and United States Rights to Enforce.
In amplification, and not in restriction of the
provisions of the preceding Section, it is intended and agreed that the City and its successors and assigns
shall be deemed beneficiaries of the agreements and
covenants provided in Section 301 hereof, and the United States shall be deemed a beneficiary of the covenant
provided in paragraph (b) Section 301 hereof, both
for and in it's own right and also.for the purposes of
protecting the interests of the community and other
parties, public or private, in whose favor or for whose benefit such agreements and covenants have been provided.
Such agreements and covenants shall (and the Deed shall so state) run in favor of the City and the United
States, for the entire period during which such
agreements and covenants shall be in force and effect,
without regard to whether the City or the United States has at any time been, remains, or is an owner of any
land or interest therein to or in favor of which such
agreements and covenants relate. The City shall have
the right, in the event of any breach of any such
agreement or covenant, and the United States shall have the right in the event of any breach of the covenant
Frovided in paragraph (b) Section 301 hereof, to
exercise all the 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 breach of
agreement or covenant, to which it or any other
beneficiaries of such agreement or covenant may be
entitled.
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ARTICLE IV. PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER SECTION 401. Representations As to Development.
The Developer represents and agrees that its purchase of the Property, and its other undertakings pursuant to the Agreement, are and will be used for the purpose of
development of the Property and not for speculation in
land holding. The Developer further recognizes that, in view of
(a) the importance of the development of the Property
to the general welfare of the community;
(b) the substantial financing and other public aids
that have been made available by law and by the
Federal and local governments for the purpose of
making such development possible; and
(c) the fact that a transfer of the stock in the
Developer or of a substantial part thereof, or any
other act or transaction involving or resulting in
a significant change in the ownership or distribution of such stock or with respect to the identity of the parties in control of the Developer or the degree thereof, is for practical purposes a
transfer or disposition of the Property then owned
by the Developer,
the qualifications and identity of the Developer, and
its stockholders, are of particular concern to the City.
The Developer further recognizes that it is because of
such qualifications and identity that the City is
entering into the Agreement with the Developer, and, in so doing, is further willing to accept and rely on the
obligations of the Developer for the faithful performance of all undertakings and covenants herein by it to be performed without requiring in addition a surety bond or similar undertaking for such performance of all
undertakings and covenants in the Agreement.
SECTION 402. Prohibition Against Transfer of Shares of
Stock; Binding Upon Stockholders Individually.
For the foregoing reasons, the Developer represents and agrees for itself, its stockholders, and any successor
in interest of itself and its stockholders, respectively, that: Prior to completion of the Improvements as certified by the City, and without the prior written approval of the City, ( a) there shall be no transfer by any party owning ten percent (10%) or more of the stock -10-
in the Developer (which term shall be deemed for the
purposes of this and related provisions to include
successors in interest of such stock or any part thereof or interest therein), {b) nor shall any such owner
suffer any such transfer to be made, {c) nor shall there be by the Developer, or by any owner of ten percent
(10%) or more of the stock therein, any other similarly significant change in the ownership of such stock or in the relative distribution thereof, or with respect to
the identity of the parties in control of the Developer or the degree thereof, by any other method or means,
whether by increased capitalization, merger with another corporation, corporate or other amendments, issuance of additional or new stock or classification of stock, or
otherwise. With respect to this provision, the
Developer and the parties signing the Agreement on
behalf of the Developer represent that they have the
authority of all of its existing stockholders to agree
to this provision on their behalf and to bind them with respect thereto.
SECTION 403. Prohibition Against Transfer of Property and Assignment of Agreement.
Also, for the foregoing reasons, the Developer represents and agrees for itself, its successors and assigns, that:
{a) Except only
(1) by way of security for, and only for, (i) the
purpose of obtaining financing necessary to
enable the Developer or any successor in
interest to the Property, or any part thereof,
to perform its obligations with respect to
making the Improvements under the Agreement,
and (ii) any other purpose authorized by the
Agreement, and
(2) as to any individual parts or parcels of the
Property on which the Improvements to be constructed thereon have been completed, and which, by the terms of the Agreement, the
Developer is authorized to convey or lease as
such Improvements are completed, the Developer
(except as so authorized) has not made or
created, and that it will not, prior to the
proper completion of the Improvements as certified by the City, make or create, or suffer to be made or created, any total or partial sale,
assignment, conveyance, or lease, or any trust
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or power, or transfer in any other mode or form
of or with respect to the Agreement or the
Property, or any part thereof or any interest
therein, or any contract or agreement to do any
of the same, without the prior written approval
of the City.
(b) the City shall bff entitled to require, except as
otherwise provided in the Agreement, as conditions
to any such approval that:
(1) Any proposed transferee shall have the qualifications and financial responsibility, as determined by the City, necessary and adequate
to fulfill the obligations undertaken in the
Agreement by the Developer (or, in the event
the transfer is of or relates to part of the
Property, such obligations to the extent that
they relate to such part).
(2) Any proposed transferee, by instrument in
writing satisfactory to the City, and in form
recordable among the land records, shall, for
itself and its successors and assigns, and
expressly for the benefit of the City, have
expressly assumed all of the obligations of the
Developer under the Agreement and agreed to be
subject to all the conditions and restrictions
to which the Developer is subject (or, in the
event the transfer is of or relates to part of
the Property, such obligations, conditions, and
restrictions to the extent that they relate to'
such part): Provided, that the fact that any
transferee of, or any other successor in
interest whatsoever to, the Property, or any
part thereof, shall, whatever the reason, not
have assumed such obligations or so agreed,
shall not (unless and only to the extent otherwise specifically provided in the Agreement or agreed to in writing by the City) relieve or
except such transferee or successor of or from
such obligations, conditions, or restrictions,
or deprive or limit the City of or with respect
to any rights or remedies or controls with
respect to the Property or the construction of
the Improvements; it being the intent of this,
together with other provisions of the Agreement, that (to the fullest extent permitted by law and equity and excepting only in the manner
and to the extent specifically provided otherwise in the Agreement) no transfer of, or change with respect to, ownership in the
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Property or any part thereof, or any interest
therein, however consummated or occurring, and
whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the City of or with respect to any rights
or remedies or controls provided in or resulting from the Agreement with respect to the Property and the construction of the Improvemen ts that the City would have had, had there been no such transfer or change.
(3) There shall be submitted to the City for review
all instruments and other legal documents
involved in effecting transfer, and if approved
by the City, its approval shall be indicated to
the Developer in writing.
(4) The consideration payable for the transfer by
the transferee or on its behalf shall not
exceed an amount representing the actual cost
(including carrying charges) to the Developer
of the Property (or allocable to the part
thereof or interest therein transferred) and
the Improvements, if any, theretofore made
thereon by it; it being the intent of this
provision to preclude assignment of the Agreement or transfer of the Property (or any parts thereof other than those referred to in
paragraph (a) (2) of this Section 403)
for profit prior to the completion of the
Improvements and to provide that in the event
any such assignment or transfer is made (and is
not canceled), the City shall be entitled to
increase the Purchase Price to the Developer by
the amount that the consideration payable for
the assignment or transfer is in excess of the
amount that may be authorized pursuant to this
paragraph (4), and such consideration shall,
to the extent it is in excess of the amount so
authorized, belong to and forthwith be paid to
the City.
(5) The Developer and its transferee shall comply
with such other conditions as the City may find
desirable in order to achieve and safeguard the
purposes of this Agreement.
Provided, that in the absence of specific written
agreement by the City to the contrary, no such
transfer or approval by the City thereof shall be
deemed to relieve the Developer, or any other party
bound in any way by the Agreement or otherwise with
respect to the construction of the Improvements,
from any of its obligations with respect thereto.
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SECTION 404. Information As to Stockholders.
In order to assist in the effectuation of the purposes
of this Article· IV and the statutory objectives
generally, the Developer agrees that during the period
between execution of the Agreement and completion of the Improvements as certified by the City, (a) the Developer will promptly notify the City of any and all changes
whatsoever in the ownership of stock, legal or
beneficial, or of any other act or transaction involving or resulting in any change in the ownership of such
stock or in the relative distribution thereof, or with
respect to the identity of the parties in control of the Developer or the degree thereof, of which it or any of
its officers have been notified or otherwise have
knowledge or information; and (b) the Developer shall,
at such time or times as the City may request, furnish
the City with a complete statement, subscribed and sworn to by the President or other executive officer of the
Developer, setting forth all of the stockholders of the Developer and the extent of their respective holdings,
and in the event any other parties have a beneficial
interest in such stock their names and the extent of
such interest, all as determined or indicated by the
records of the Developer, by specific inquiry made by
any such officer, of all parties who on the basis of
such records own ten percent (10%) or more of the stock in the Developer, and by such other knowledge or
information as such officer shall have. Such lists,
data, and information shall in any event be furnished
the City immediately prior to the delivery of the Deed
to the Developer and as a condition precedent thereto,
and annually thereafter on the anniversary of the date
of the Deed until the issuance of a certificate of
completion for all the Property.
ARTICLE V. MORTGAGE FINANCING; RIGHTS OF MORTGAGEES
SECTION 501. Limitation Upon Encumbrance of Property.
Prior to the completion of the Improvements, as
certified by the City, neither the Developer nor any
successor in interest to the Property or any part
thereof shall engage in any financing or any other
transaction creating any mortgage or other encumbrance
or lien upon the Property, whether by express agreement or operation of law, or suffer any encumbrance or lien
to be made on or attached to the Property, except for
purposes of obtaining construction and permanent loans
in the maximum amounts insurable for the Project, as
determined by HUD. The Developer (or successor in
-14-
interest) shall notify the City in advance of any
financing, secured by mortgage or other similar lien
instrument, it proposes to enter into with respect to
the Property, or any part thereof, and in any event it
shall promptly notify the City of any encumbrance or
lien that has been created on or attached to the
Property, whether by voluntary act of the Developer or
otherwise. For the purposes of such mortgage financing
as may be made pursuant to the Agreement, the Property
may, at the option of the Developer (or successor in
interest), be divided into several parts or parcels,
provided that such subdivision, in the opinion of the
City, is not inconsistent with the purposes of this
Agreement and is approved in writing by the City.
SECTION 502, Mortgagee Not Obligated to Construct.
Notwithstanding any of the provisions of the Agreement, including but not limited to those which are or are
intended to be covenants running with the. land, the
holder of any mortgage authorized by the Agreement
(including any such holder who obtains title to the
Property or any part thereof as a result of foreclosure proceedings, or action in lieu thereof, but not
including (a) any other party who thereafter obtains
title to the Property or such part from or through such holder or (b) any other purchaser at foreclosure sale
other than the holder of the Mortgage itself) shall in
no wise be obligated by the provisions of the Agreement to construct or complete the Improvements or to
guarantee such construction or completion; nor shall any covenant or any other provision in the Deed be construed to so obligate such holder: Provided, that nothing in
this Section or any other section or provision of the
Agreement shall be deemed or construed to permit or
authorize any such holder to devote the Property or any part thereof to any uses, or to construct any
improvements thereon, other than those uses or
improvements provided or permitted in the Agreement.
SECTION 503, Copy of Notice of Default to Mortgagee,
Whenever the City shall deliver any notice or demand to the Developer with respect to any breach or default by
the Developer in its obligations or covenants under the Agreement, the City shall at the same time forward a
copy of such notice or demand to each holder of any
mortgage authorized by the Agreement at the last address of such holder shown in the records of the City.
-15-
SECTION 504. Mortgagee's Option to Cure Defaults,
After any breach or default referred to in Section 503
hereof, each such holder shall (insofar as the rights of the City are concerned) have the right, at its option,
to cure or remedy such breach or default (or such breach or default to the extent that it relates to the part of the Property covered by its mortgage) and to add the
cost thereof to the mortgage debt and the lien of its
mortgage: Provided, that if the breach or default is
with respect to construction of the Improvements,
nothing contained in this Section or any other section
of the Agreement shall be deemed to permit or authorize such holder, either before or after foreclosure or
action in lieu thereof, to undertake or continue the
construction or completion of the Improvements (beyond
the extent necessary to conserve or protect Improvements or construction already made) without first having
expressly assumed the obligation to the City, by written agreement satisfactory to the City, to complete, in the manner provided in the Agreement, the Improvements on
the Property or the part thereof to which the lien or
title of such holder relates. Any such holder who shall properly complete the Improvements relating to the
Property or applicable part thereof shall be entitled,
upon written request made to the City, to a
certification or certifications by the City to such
effect in the manner provided in Section 207 of the
Agreement, and any such certification shall, if so
requested by such holder, mean and provide that any
remedies or rights with respect to recapture of or
reversion or revesting of title to the Property that the City shall have or be entitled to because of failure of the Developer or any successor in interest to the
Property, or any part thereof, to cure or remedy any
default with respect to the construction of the Improvements on other parts or parcels of the Property, or because of any other default in or breach of the
Agreement by the Developer or such successor, shall not apply to the part or parcel of the Property to which
such certification relates.
SECTION 505, City's Option to Pay Mortgage Debt or Purchase Property.
In any case, where subsequent to default or breach by
the Developer (or successor in interest) under the
Agreement, the holder of any mortgage on the Property or part thereof
-16-
(a) has, but does not exercise, the option to construct or complete the Improvements relating to the
Property or part thereof covered by its mortgage or
to which it has obtained title, and such failure
continues for a period of sixty (60) days after the
holder has been notified or informed of the default
or breach; or
(b) undertakes construction or completion of the
Improvements but does not complete such
construction within the period as agreed upon by
the City and such holder (which period shall in any
event be at least as long as the period prescribed
for such construction or completion in the
Agreement), and such default shall not have been
cured within sixty (60) days after written demand
by the City so to do,
the City shall (and every mortgage instrument made prior to completion of the Improvements with respect to the
Property by the Developer or successor in interest shall so provide) have the option of paying to the holder the amount of the mortgage debt and securing an assignment
of the mortgage and the debt secured thereby, or, in the event ownership of the Property (or part thereof) has
vested in such holder by way of foreclosure or action in lieu thereof, the City shall be entitled, at its option, to a conveyance to it of the Property or part thereof
(as the case may be) upon payment to such holder of an
amount equal to the sum of: (i) the mortgage debt at
the time of foreclosure or action in lieu thereof (less all appropriate credits, including those resulting from collection and application of rentals and other income
received during foreclosure proceedings); (ii) all
expenses with respect to the foreclosure; (iii) the net expense, if any (exclusive of general overhead),
incurred by such holder in and as a direct result of the subsequent management of the Property; (iv) the costs of any Improvements made by such holder; and (v) an amount equivalent to the interest that would have accrued on
the aggregate of such amounts had all such amounts
become part of the mortgage debt and such debt had
continued in existence.
SECTION 506. City's Option To Cure Mortgage Default.
In the event of a default or breach prior to the completion of the Improvements by the Developer, or any successor in interest, in or of any of its obligations
under, and to the holder of, any mortgage or other
instrument creating an encumbrance or lien upon the
-17-
Property or part thereof, the City may at its option
cure such default or breach, in which case the City
shall be entitled, in addition to and without limitation upon any other rights or remedies to which it shall be
entitled by the Agreement, operation of law, or
otherwise, to reimbursement from the Developer or
successor in interest of all costs and expenses incurred by the City in curing such default or breach and to a
lien upon the Property (or the part thereof to which the mortgage, encumbrance, or lien relates) for such
reimbursement: Provided, that any such lien shall be
subject always to the lien of (including any lien
contemplated, because of advances yet to be made, by)
any then existing mortgages on the Property authorized
by the Agreement.
SECTION 507. Mortgage and Holder.
For the purposes of the Agreement, the term "mortgage"
shall include a deed of trust or other instrument
creating an encumbrance or lien upon the Property, or
ariy part thereof, as security for a loan. The term
"holder" in reference to a mortgage shall include any
insurer or guarantor of any obligation or condition
secured by such mortgage or deed of trust, including,
but not limited to, the Federal Housing Commissioner,
the Administrator of Veterans Affairs, and any successor in office of either such official.
ARTICLE VI. REMEDIES
SECTION 601. In General.
Except as otherwise provided in the Agreement, in the
event of any default in or breach of the Agreement, or
any of its terms or conditions, by either party hereto, or any successor to such party, such party (or
successor) shall, upon written notice from the other,
proceed immediately to cure or remedy such default or
breach, and, in any event, within sixty (60) days after receipt of such notice. In case such action is not
taken or not diligently pursued, or the default or
breach shall not be cured or remedied within a
reasonable time, the aggrieved party may institute such proceedings as may be necessary or desirable in its
opinion to cure and remedy such default or breach,
including, but not limited to, proceedings to compel specific performance by the party in default or breach of its obligations.
-18-
SECTION 602. Termination by Developer Prior to Conveyance.
In the event that
(a) prior to conveyance of Property, the City breaches
or defaults in performance of any material
provisions of the Agreement, and such breach or
default is not cured within thirty (30) days after
the date of written demand by the Developer; or
(b) the City does not tender conveyance of the
Property, or possession thereof, in the manner and
condition, and by the date, provided in the
Agreement, and any such failure shall not be cured
within thirty (30) days after the date of written
demand by the Developer; or
(c) the Developer shall furnish evidence satisfactory
to the City that it has been unable, after and
despite diligent effort, to obtain an Agreement to
Enter Into a Housing Assistance Payments Contract
for one hundred percent (100%) of the proposed
units and a Final Commitment from HUD for insurance
of construction and permanent financing in an
amount not less than ninety percent (90%) of the
replacement cost as set forth in the Developer's
application to HUD for such commitment, and a loan
commitment for interim and permanent financing in
an amount not exceeding the amount of the HUD Final
Commitment, and the Developer shall, after having
submitted such evidence and if so requested by the
City, continue to make diligent efforts to obtain
such commitment for a period of sixty (60) days
after such request, but without success; or
(d) HUD shall fail to timely disperse any part of funds theretofore committed to Developer,
then the Agreement shall, at the option of the
Developer, be terminated by written notice thereof to
the City, and, except with respect to the return of the Deposit as provided in paragraph (f) Section 3 Part I
hereof, neither the City nor the Developer shall have
any further rights against or liability to the other
under the Agreement.
SECTION 603. Termination by City Prior to Conveyance.
In the event that prior to conveyance of the Property to the Developer and in violation of the Agreement,
(a) the Developer (or any successor in interest)
assigns or attempts to assign the Agreement or
any rights therein, or in the Property; or
-19-
(b) there is any change in the ownership or distribution of the stock of the Developer or with respect to the identity of the parties in control
of the Developer or the degree thereof; or
(c) the Developer does not submit Construction Plans,
as required by the Agreement, or (except as excused
under paragraph (3r Section 602 hereof) evidence
that it has the necessary equity capital and
mortgage financing, in satisfactory form and in the
manner and by the dates respectively provided in
the Agreement therefor; or
(d) the Developer does not pay the Purchase Price and
take title to the Property upon tender of
conveyance by the City pursuant to the Agreement,
and if any default or failure referred to in
paragraphs (b) and (c) of this Section 603 shall
not be cured within thirty (30) days after the date
of written demand by the City,
then the Agreement, and any rights. of the Developer, or any assignee or transferee, in the Agreement, or arising therefrom with respect to the City or the Property,
shall, at the option of the City, be terminated by the
City, in which event, as provided in paragraph (e)
Section 3 Part I hereof, the Deposit shall be retained
by the City as liquidated damages and as its property
without any deduction, offset, or recoupment whatsoever, and neither the Developer (or assignee or transferee)
nor the City shall have any further rights against or
liability to the other under the Agreement.
SECTION 604. Revesting Title in City Upon Happening of Event Subsequent to Conveyance to Developer.
In the event that subsequent to conveyance of the
Property or any part thereof to the Developer and prior to completion of the Improvements as certified by the
City,
(a) the Developer (or successor in interest) shall
default in or violate its obligations with respect
to the construction of the Improvements (including
the nature and the dates for the beginning and
completion thereof), or shall abandon or substantially suspend construction work, any such default, violation, abandonment or suspension shall not be
cured, ended, or remedied within three (3) months
after written demand by the City so to do; or
-20-
(b) the Developer (or successor in interest) shall fail to pay real estate taxes or assessments on the
Property or any part thereof when due, or shall
place thereon any encumbrance or lien unauthorized
by the Agreement, or shall suffer any levy or
attachment to be made, or any materialmen's or
mechanics' lien, or any other unauthorized
encumbrance or lien to attach, and such taxes or
assessments shall not have been paid, or the
encumbrance or lien removed or discharged or
provision satisfactory to the City made for such
payment, removal, or discharge, within ninety (90)
days after written demand by the City so to do; or
(c) there is, in violation of the Agreement, any
transfer of the Property or any part thereof, or
any change in the ownership or distribution of the
stock of the Developer, or with respect to the
identity of the parties in control of the Developer
or the degree thereof, and such violation shall not
be cured within sixty (60) days after written
demand by the City to the Developer,
then the City shall have the right to reenter and take
possession of the Property and to terminate (and revest in the City) the estate conveyed by the Deed to the
Developer, it being the intent of this provision,
together with other provisions of the Agreement, that
the conveyance of the Property to the Developer shall be made upon, and that the Deed shall contain, a condition subsequent to the effect that in the event of any
default, failure, violation, or other action or inaction by the Developer specified in paragraphs (a), (b) and
{c) of this Section 604, failure on the part of the
Developer to remedy, end, or abrogate such default,
failure, violation, or other action or inaction, within the period and in the manner stated in such paragraphs, the City at its option may declare a termination
in favor of the City of the title, and of all the rights and interests in and to the Property conveyed by the
Deed to the Developer, and that such title and all
rights and interests of the Developer, 'and any assigns or successors in interest to and in the Property, shall revert to the City: Provided, that such condition
subsequent and any revesting of title as a result
thereof in the City
{a) shall always be subject to and limited by, and
shall not defeat, render invalid, or limit in any
way, (i) the lien of any mortgage authorized by the
Agreement, and (ii) any rights or interests
provided in the Agreement for the protection of the
holders of such mortgages; and
-21-
(b) shall not apply to individual parts or parcels of
the Property (or, in the case of parts or parcels
leased, the leasehold interest) on which the
Improvements to be constructed thereon have been
completed in accordance with the Agreement and for
which a certificate of completion is issued
therefor as provided in Section 207 hereof.
In addition to, and without in any way limiting the
City's right to reentry as provided for in the preceding sentence, the City shall have the right to retain the
Deposit, as provided in paragraph ( d) Section 3 Part I hereof, without any deduction, offset, or recoupment
whatsoever, in the event of a default, violation or
failure of the Developer as specified in the preceding
sentence.
SECTION 605. Resale of Reacquired Property; Disposition of Proceeds.
Upon the revesting in the City of title to the Property or any part thereof as provided in Section 604, the City shall, pursuant to its responsibilities under State law, use its best efforts to resell the Property or part
thereof (subject to such mortgage liens and leasehold
interests as in Section 604 set forth and provided) as
soon and in such manner as the City shall find feasible and consistent with the objectives of such law to a
qualified and responsible party or parties (as
determined by the City) who will assume the obligation
of making or completing the Improvements or such other
improvements in their stead as shall be satisfactory to the City and in accordance with the uses specified for
such Property or part thereof in the Agreement. Upon
such resale of the Property, the proceeds thereof shall be applied:
(a) First, to reimburse the City for all costs and
expenses incurred by the City including, but not
limited to, salaries of personnel in connection with
the recapture, management, and resale of the
Property or part thereof (but less any income
derived by the City from the Property or part
thereof in connection with such management); all
taxes, assessments, water and sewer charges with
respect to the Property or part thereof (or, in the
event the Property is exempt from taxation or
assessment or such charges during the period of
ownership thereof by the City, an amount, if paid,
equal to such taxes, assessments, or charges as
would have been payable if the Property were not so
exempt); any payments made or necessary to be made
to discharge any encumbrances or liens existing on
the Property or part thereof at the time of
-22-
revesting of title thereto in the City or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Developer, its successors or transferees; any expenditures made or
obligations incurred with respect to the making or
completion of the Improvements or any part thereof
on the Property or part thereof; and any amounts
otherwise owing the City by the Developer and its
successor or transferee; and
(b) Second, to reimburse the Developer, its successor
or transferee, up to the amount equal to ( l) the
sum of the Purchase Price paid by it for the
Property (or allocable to the part thereof) and the
cash actually invested by it in making any of the
Improvements on the Property or part thereof, less
(2) any gains or income withdrawn or made by it
from the Agreement or the Property.
Any balance remaining after such reimbursements shall be retained by the City as its property.
SECTION 606. Other Rights and Remedies of City; No Waiver by Delay.
The City shall have the right to institute such actions or proceedings as it may deem desirable for effectuating the purpose of this Article VI including also the right to execute and record or file among the public land
records in the office in which the Deed is recorded a
written declaration of the termination of all the right, title, and interest of the Developer, and (except for
such individual parts or parcels upon which construction of that part of the Improvements required to be
constructed thereon has been completed, in accordance
with the Agreement, and for which a certificate of completion as provided in Section 207 hereof is to be delivered, and subject to such mortgage liens and leasehold interests as provided in Section 604 hereof) its successors in interest and assigns, in the Property, and the revesting of title thereto in the City: Provided,
that any delay by the City in instituting or prosecuting any such actions or proceedings or otherwise asserting
its rights under this Article VI shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way (it being the intent of this provision that the City should not be constrained--so as to avoid the risk of being deprived of or limited in the exercise of the remedy provided in this Section because of concepts of waiver, laches, or otherwise--to exercise such -23-
remedy at a time when it may still hope otherwise to
resolve the problems created by the default involved);
nor shall any waiver in fact made by the City with
respect to any specific default by the Developer under
this Section be considered or treated as a waiver of the rights of the City with respect to any other defaults by the Developer under this Section or with respect to the particular default except to the extent specifically
waived in writing.
SECTION 607. Enforced Delay in Performance for Causes Beyond Control of Party.
For the purpose of any of the provisions of the
Agreement, neither the City nor the Developer, as the
case may be, nor any successor in interest, shall be
considered in breach of, or default in, its obligations with respect to the preparation of the Property for
development, or the beginning and completion of
construction of the Improvements, or progress in respect thereto, in the event of enforced delay in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not restricted to, acts of God, acts of
the public enemy, acts of the Federal Government, acts
of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such
causes; it being the purpose and intent of this provision that in the event of the occurrence of any such enforced delay, the time or times for performance of the obligations of the City with respect to the preparation of the Property for development or of the Developer with respect to construction of the Improvements, as the case may be, shall be extended for the period of the enforced delay as determined by the City: Provided, that the
party seeking the benefit of the provisions of this
Section shall, within ten (10) days after the beginning of any such enforced delay, have first notified the
other party thereof in writing, and of the cause or
causes thereof, and request an extension for the period of the enforced delay.
SECTION 608. Rights and Remedies Cumulative.
The rights and remedies of the parties to the Agreement, whether provided by law or by the Agreement, shall be
cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise -24-
by it, at the same or different times, of any other such remedies for the same default or breach or of any of its remedies for any other default or breach by the other
party. No waiver made by either such party with respect to the performance, or manner or time thereof, or any
obligation of the other party or any condition to its
own obligation under the Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligation of the other party or condition to its own obligation beyond those
expressly waived in writing and to the extent thereof,
or a waiver in any respect in regard to any other rights of the party making the waiver or any other obligations of the other party.
SECTION 609, Party in Position of Surety With Respect to Obligations.
The Developer, for itself and its successors and
assigns, and for all other persons who are or who shall become, whether by express or implied assumption or
otherwise, liable upon or subject to any obligation or
burden under the Agreement, hereby waives, to the
fullest extent permitted by law and equity, any and all claims or defenses otherwise available on the ground of its (or their) being or having become a person in the
position of a surety, whether real, personal, or
otherwise or whether by agreement or operation of law,
including, without limitation on the generality of the
foregoing, any and all claims and defenses based upon
extension of time, indulgence, or modification of terms of the Agreement.
ARTICLE VII, MISCELLANEOUS
SECTION 701, Conflict in Interests; City Representatives Not Individually Liable.
No member, official, or employee of the City shall have any personal interest, direct or indirect, in the
Agreement, nor shall any such member, official, or
employee participate in any decision relating to the
Agreement which affects his or her personal interests or the interests of any corporation, partnership, or
association in which he or she is, directly or
indirectly, interested. No member, official, or
employee of the City shall be personally liable to the
Developer, or any successor in interest, in the event of any default or breach by the City or for any amount
which may become due to the Developer or successor or on any obligations under the terms of the Agreement.
-25-
SECTION 702. Equal Employment Opportunity.
The Developer, for itself and its successors and
assigns, agrees that during the construction of the
Improvements provided for in the Agreement:
(a) The Developer will not discriminate against any
employee or applicant for employment because of
race, color, ancestry, national origin, religious
creed, age, sex, marital status, medical condition
(related to cancer only), or physical handicap.
The Developer will take affirmative action to
insure that applicants are employed, and that
employees are treated during employment, without
regard to their race, color, ancestry, national
origin, religious creed, age, sex, marital status,
medical condition (related to cancer only), or
physical handicap. Such action shali include, but
,not be limited to, the following: employment;
upgrading; demotion or transfer; recruitment or
recruitment advertising; layoff or termination;
rates of pay or other forms of compensation; and
selection for training, including apprenticeship.
The Developer agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this nondiscrimination
clause.
(b) The Developer will, in all solicitations or advertisements for employees placed by or on behalf of the Developer, state that all qualified applicants will receive consideration for employment without regard to race, color, ancestry, national
origin, religious creed·, age, sex, marital status,
medical condition (related to cancer only), or
physical handicap.
(c) The Developer will send to each labor union or
representative of workers with which the Developer
has a collective bargaining agreement or other contract or understanding, a notice, to be provided, advising the labor union or workers' representative
of the Developer's commitments under Section 202 of
Executive Order 11246 of September 24, 1965, and
shall post copies of the notice in conspicuous
places available to employees and applicants for
employment.
-26-
(d) The Developer will comply with all provisions of
Executive Order 11246 of September 24, 1965, and of
the rules, regulations, and relevant orders of the
Secretary of Labor.
(e) The Developer will furnish all information and
reports required by Executive Order 11246 of
September 24, 1965, and by the rules, regulations,
and orders of the Secretary of Labor or the
Secretary of Housing and Urban Development pursuant
thereto, and will permit access to the Developer's
books, records, and accounts by the City, the
Secretary of Housing and Urban Development, and the
Se9retary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations,
and orders.
( f) In the event of the Developer's noncompliance with the nondiscrimination clause of this Section, or
with any of the said rules, regulations or orders,
the Agreement may be canceled, terminated, or suspended in whole or in part and the Developer may be declared ineligible for further Government contracts or Federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and
such other sanctions may be imposed and remedies
invoked as provided in Executive Order 11246 of
September 24, 1965, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise
provided by law.
(g) The Developer will include the provisions of
paragraphs (a) through (g) of this Section in every
contract or purchase order, and will require the
inclusion of these provisions in every subcontract
entered into by any of its contractors, unless
exempted by rules, regulations, or orders of the
Secretary of Labor issued pursuant to Section 204
of Executive Order 11246 of September 24, 1965, so
that such provisions will be binding upon each such
contractor, subcontractor, or vendor, as the case
may be. The Developer will take such action with
respect to any construction contract, subcontract,
or purchase order as the City or thB Department of
Housing and Urban Development may direct as a means
of enforcing such provisions, including sanctions
for noncompliance: Provided, however, that in the
event the Developer becomes involved in, or is
threatened with, litigation with a subcontractor or
-27-
vendor as a result of such direction by the City or
the Department of Housing and Urban Development,
the Developer may request the United States to
enter into such litigation to protect the interests
of the United States. For the purpose of including
such provisions in any construction contract, subcontract, or purchase order, as required hereby, the first three lines of this Section shall be
changed to read "During the performance of this
Contract, the Contractor agrees as follows:" and
the term "Developer" shall be changed to
"Contractor. 11
SECTION 703. Provisions Not Merged With Deed.
None of the provisions of the Agreement are intended to or shall be merged by reason of any deed transferring
title to the Property from the City to the Developer or any successor in interest, and any such deed shall not
be deemed to affect or impair the provisions and
covenants of the Agreement.
SECTION 704. Titles of Articles and Sections.
Any titles of the several parts, Articles, and Sections of the Agreement are inserted for convenience of
reference only and shall be disregarded in construing or interpreting any of its provisions.
-28-
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ATTACHMENT NO. 2
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL 1:
Lots 15 and 16 in Block "E" of Ocean Spray Tract, in the City of Santa Monica, as per map recorded in Book 19 Page 83 of Miscellaneous Records, in the office of the County Recorder, County of Los Angeles, State of California.
PARCEL 2:
Lots 12 and 13 in Block "F" of Ocean Spray Tract, in the City of Santa Monica, as per map recorded in Book 19 Page 83 of Miscellaneous Records, in the office of the County Recorder, County of Los Angeles, State of California.
ATTACHMENT NO, 3
SCHEDULE OF PERFORMANCE
City is aware and acknowledges that Developer will perform the following events subject to other agencies over which it has no control, and while the City and Developer have each exercised their best judgment in establishing the following schedule, there may arise unavoidable delays in the performance required. Accordingly, the City and the Developer agree that (a) each of the following events shall be merely conditions to the performance otherwise required of a party and not covenants; (b) that such delays caused without fault of a party shall automatically extend the times or subsequent performance by a like period as the time delay; and, (c) such delays caused through the fault of a party shall, at the election of the party not at fault, be deemed to extend such parties' time for subsequent performance by a like period as the time of delay.
SCHEDULE
Execution of Agreement
Agreement authorized, executed
and delivered to Developer by
City.
Submission and Approval -
Basic Concept Drawings
Developer shall have submitted
to the City and the City shall
have approved the Basic Concept
Drawings,
Approval - All Required
Variances
Developer will obtain
all required variances; i.e.,
,Santa Monica City Zoning.
Submission - Basic Concept
Drawings to HUD
The Developer shall submit
Basic Concept Drawings to HUD,
Approval - Basic Concept
Drawings to HUD
HUD will approve or disapprove
Basic Concept Drawings.
TIME OF PERFORMANCE
Within ten (10) days after the
Agreement is approved by the City.
Concurrent with submission of the
Agreement.
Within sixty (60) days following
execution of the Agreement.
Concurrent with execution of the
Agreement.
Within ninety (90) days following
submission of Basic Concept Drawings.
SCHEDULE
Submission - Documents for HUD
Conditional Finance Commitment
Developer shall submit all
related documents requested by
HUD for the purpose of a Conditional Finance Commitment.
Approval - HUD Conditional
Finance Commitment
HUD will approve or disapprove
Conditional Financing for
project.
Submission - Coastal Commission
Permit
Developer shall prepare and
submit application for permit
to the Coastal Commission.
Approval - Coastal Commission
Permit
The Coastal Commission shall
approve or disapprove the permit
application.
Submission-Preliminary Design
and Preliminary .Construction
Drawings and Landscape Plan
Developer shall prepare and
submit to the City Preliminary
Design and Preliminary Construction Drawings and Landscape Plan.
Approval-Preliminary Drawings
and' Landscape Plan
City shall approve or disapprove
the Preliminary Construction
Drawings and Landscape Plan.
"Approval-HUD Firm Finance
Commitment
HUD will approve or disapprove
Firm Finance Commitment for
project.
-2-
TIME OF PERFORMANCE
Within ninety (90) days following
receipt·of City and HUD approval
of Basic Concept Drawings.
Within ninety (90) days following
submission of documents for HUD
Conditional Finance Commitment.
Within thirty (30) days following
receipt of City and HUD approval
of Basic Concept Drawings.
Within sixty (60) days following
submission of application.
Within sixty (60) days following
receipt of Coastal Commission
permit approval.
Within thirty (30) days following
receipt by City.
Within ninety (90) days following
approval by the City of Preliminary
Construction Drawings and Landscape
Plan.
SCHEDULE
Submission-Final Construction
Drawings and Landscaping Plan
The Developer shall prepare
and submit to City Final Construction Drawings, Final Landscape Plan, Finish Grading and Parking Plans: to include
correction and resubmittal,
Approval-Final Drawings and
Plans
After securing approval of Final
Drawings and Plans from the City
Building Department in the form
of appropriate building permits,
the City Council shall approve
or disapprove Final Drawings,
Final Landscaping, Finish
Grading and Parking Plans.
Submission-Evidence of Equity
Capital and HUD Mortgage
Financing
Developer shall submit to the
City satisfactory evidence that
Developer has the necessary
equity capital and HUD mortgage
financing commitments for the
construction of the Improvements.
Opening of Escrow
City shall open an escrow with
escrow agent.
Conveyance of Title
City shall convey title to
Developer, and Developer
shall accept conveyance of
parcels.
Commencement of Construction
Developer shall commence construction of the Improvements.
Completion of Construction
Developer shall complete the
construction of the Improvements.
TIME OF PERFORMANCE
Within one hundred twenty (120) days
following approval by the City of
the Preliminary Drawings and
Landscape Plan.
Within thirty (30) days following
issuance of valid building permits
secured from City Building Department.
Within thirty (30) days following
approval by the City of Final
Construction Drawings.
Within five (5) days following receipt
of written request from Developer,
but in any event no later than
January 1, 198 2,
Within (i) thirty (30) days following
opening of escrow, (ii) by February 1,
1982, or (iii) at time of availability
of mortgage funds by HUD, whichever
is later.
Within thirty (30) days following
conveyance of title.
Within three hundred sixty-five (365)
days following commencement of construction, notwithstanding terms of this Agreement.
-3-
ATTACHMENT NO. 4
SCOPE OF DEVELOPMENT
Land Use and Design Objectives
The Developer shall develop the Property .for high density multifamily rental housing for low and moderate income families pursuant to Section 8 of the National Housing Act. Said housing shall consist of townhouse apartments. The development shall show a high quality of site planning and architectural design which provides for individual and family privacy and a pleasing, safe and well-maintained residential environment. The complex of apartments shall maintain certain unifying characteristics of structure, materials, color and landscaping which identify all elements of the development as part of a larger single entity and, in turn, compatible with the total Ocean Park neighborhood.
All structures shall comply with the Minimum Property Standards of the Federal Housing Administration.
Building Controls
The Developer shall construct residential buildings with a total of twenty-four (24) dwelling units on the Property. The buildings shall be no more than two (2) stories in height over parking. The amount of land which may be covered by buildings shall not exceed fifty-five percent (55%) of the site area. The ratio of gross floor area of buildings to the parcel area upon which they are situated shall not exceed 1.5 to l.
The minimum setback from all property lines shall be as follows:
5 feet from north property line
5 feet from south property line
8 feet from east property line
8 feet from west property line
Parking
Developer shall provide a minimum of forty (40) spaces of on-site underground parking for the entire development. All parking areas shall be designed and improved in accordance with applicable sections of the Santa Monica Municipal Code.
Solar Hot Water System
The Developer will use its best efforts to secure financing from HUD for an active solar hot water system.
Landscaping
All areas of the Property that are not used for buildings, driveways and parking shall be professionally landscaped and maintained. A permanent water sprinkler system shall be provided in all landscaped areas to ensure proper maintenance.
Refuse
Enclosed refuse areas shall be provided at loc.ations convenient for all dwelling units.
Utilities
All electrical, telephone, C.A.T.V. and similar utility services, wires or cables which provide direct service to the Property and are within the exterior boundary line of said Property shall be installed underground. No mechanical equipment or meters will be left exposed in yard areas or on roofs. (Plumbing stacks and heating and ventilation vents are permitted to project through roof or walls.)
Signs
The City
cation.
approval
shall permit only those signs necessary for identifiAll signing or identification will be subject to the of the City.
Open Space
Forty-five percent (45%) of the site will be usable for recreational activities. Tot lots will be provided for young children and will include playground equipment and sandboxes.
-2-
AMENDMENT NUMBER 1
That certain Agreement For Sale of Land For
Private Development, By and Between The City of Santa
Monica (the "City") and Ocean Park Villas, a limited
partnership organized and existing under the laws of the State of California (the "Developer") adopted February
14, 1981, together with its Attachments numbered 1
through 4, (collectively the "Agreement"), concerning
that certain property located in the City of Santa
Monica, County of Los Angeles, State of California,
which is more particularly described in Exhibit "A"
attached hereto and incorporated herein by this
reference is hereby amended and it is hereby declared as follows:
Part I, Section 1, Page 2 (Sale: Purchase Price).
Section 1 is hereby deleted in its entirety and
the following new Section 1 is hereby added:
Subject to all the terms, covenants,
and conditions of the Agreement, including
but not limited to Section B(a) (ii), the
City agrees to sell the Property to the
Developer for, and the Developer agrees to
purchase the Property from the Agency and
pay therefor, the amount of Three Hundred
Thirty Thousand, Nine Hundred Seventy-Nine
Dollars ($330,979.00) allowed by the HUD for
land costs.
In Witness Whereof, the City and the Developer
have signed this Amendment as of the dates set opposite their signatures.
July '-Z-4 , 1982
July}/fp , 1982
APPROVED AS TO FORM:
ftr(...,r4...;t·- t,,.-. i-.-~--~~--.
ROBERT M. MYERS \;
City Attorney
July /f, 1982
July , 1982
City of Santa Monica
nager
Mayor
Developer:
Ocean Park Villas, a
limited partnership
By-----------
AMENDMENT NUMBER 2
AMENDMENT TO AGREEMENT FOR
SALE OF LAND FOR PRIVATE DEVELOPMENT
BY AND BETWEEN
CITY OF SANTA MONICA
AND
OCEAN PARK VILLAS
Whereas, the City of Santa Monica (hereinafter "City") and Ocean Park Vil las (hereinafter "Developer") entered into an Agreement for Sale of Land for Private Development (hereinafter "Agreement") dated February 23, 1981, for the purchase of certain land in the City of Santa Monica (hereinafter "project site"); Whereas, under the terms of said Agreement, it was contemplated that Developer would obtain a loan for the construction of low and moderate income housing on the project site, said loan to be insured by the Secretary of Housing and Urban Development (hereinafter "Secretary");
Whereas, on July 15, 1982, the Secretary issued to Active Mortgage Corporation an amended Commitment for Insurance of Advances which committed the Secretary, in accordance with its terms and upon satisfaction of certain conditions, to endorse for insurance a mortgage note in the amount of $1,557,000.00 to be secured by a mortgage on the project site and the project designated as FHA Project No. 122-35547 to be constructed thereon;
Now, Therefore, in order to induce the Secretary to insure said mortgage note in accordance with the Regulations of the Department of Housing and Urban Development (hereinafter "Department"), the parties hereto agree to amend the Agreement as follows:
1. Notwithstanding anything in the Agreement to the contrary, in the event that any provision of the Agreement in any way tends to contradict, modify or in any way change the terms of the Regulatory Agreement encumbering the project, entered into between the Secretary and the Developer, the terms of the Regulatory Agreement shall prevail and govern and said Agreement shall be subordinate to the U.S. Housing Act of 1937; or if any provision of the Agreement in any way tends to 1 imit the Department in its administration of the National Housing Act, as amended, or the regulations and instructions issued pursuant thereto, the Agreement shall be deemed amended so as to comply with the National Housing Act.
2. In the event that the Secretary, or his successors in office, shall acquire title to the project and the project site, through the operation of his contract of mortgage insurance, either by foreclosure or deed in lieu of foreclosure, the City shall have 90 days from the date of acquisition by the Secretary, or his successors in office, upon terms and conditions as approved by the Secretary, within which to exercise its right to purchase under Section 8(a)(ii) of the Agreement.
Should the City fail to exercise its option to purchase, within the 90 day period or such period as it may be extended at the sole discretion of the Secretary, the option to purchase shall be null and void.
3. The City hereby agrees that its right to reenter and take control of the project site under the terms of Section 604 of the Agreement is subject and subordinate to the rights of the Secretary, or the holder of any mortgage insured by the Secretary, under the terms of the Mortgage, the Regulatory Agreement, the
Building Loan Agreement, the Performance Bond, or other form of Assurance of Completion, all of which documents will be entered into pursuant to the Secretary's endorsement of the mortgage note under the terms of the Commitment of Insurance of Advances. Nothing in the Agreement shall be deemed in any way to impair the rights of the Secretary, or the holder of any mortgage, under the terms of said documents.
4. Any right of reentry shall be subject and subordinate to the Supplemental Agreement entered into between the California Housing Finance Agency and Developer that is in substantially the form attached hereto as Exhibit A.
5. No agreement entered into between the City and the Developer subsequent to the date of this Amendment shall in any way be deemed to supersede or modify this Amendment without the prior written approval of the Secretary.
IN WITNESS WHEREOF, the City and the Developer have signed this Amendment as of the dates set opposite their signatures.
APPROVED AS TO FORM:
ROBERT M. MYERS
City Attorney
, 1982
SE.pf. 11 , 1982
City of Santa Monica
Deve 1 oper:
Ocean Park Villas, a limited partnership
,,~-<'L
EXHIBIT A
- :......__ - i
SUPPLEMENTAL AGREEMENT
'T'hi.s Agreement is made by and between • •
____ -.-,-.-------"------ 1 ( "Deve 1 ope r" ) and the -C-a---c-1-i_f_orni a Housing Finance Agency ("Agency") as of this 7th clay of September, 1982.
Recitals
A. Agency has conditionally committed to provide
construction loan and permanent mortgage financing through the issuance of its Rental Housing Revenue Bonds (FHA Insured Loans) 1982 Series A (the "Bonds") for a housing development (the "Development") to be built and managed by Developer.
The Development is generally described_ as
(name) consisting of approxirna~e:ly ______ dwelling units located in the .. , :·
( City/County) ' further de s_c_r_,i,-::b--'e'--d~---=-i-n---=F,=-x..,,.h-i~"b-1.--:-. t-...,,,,---,-A..., 11 ......... h_e_r_e_t_o __ --- B. Construction loan advances by the Agency to
finance the Development will be insured by the Federal
Housing Administration ("FHA") pursuant to Section 220, 22l(d)(3) or 22l(d)(4) of the National Housing Act, as
amended.
C. This Agreement is part of that certain
Development Loan Commitment between Developer and Agency dated___ _ __ , 1982, incorporated by reference herein.
NOW, THEREFORE, in order to provide further
as~urances to Agency as a lender of the financial integrity of the Development, and to insure the timely payment by Developer of principal and interest on th_e Agency's loan ("Loan") to finance the Development,. and for the Agency to be in a position to comply with FHA's requirements imposed on FHA mortgagees, the Zenovich-Moscone-Chacon Housing·and Home Finance Act, as amended, ("Acttl) and the Mortgage Subsidy Bond Tax Act of 1980, as·amended, the parties hereto agree as follows:
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1. Developer agrees to execute in ·a timely
manner any extensions of the "Housing Assistance
_fayments Contract'1 referred to in paragraph l(c) of the Vevelopment Loan Commitment. •
2. Any impounds for taxes, hazard insurance,
mortgage insurance, reserves for replacement, or any
other accounts established under the FHA loan documents for the Development shall be held and maintained by the Agency and disbursed upon the request or with the
approval of FHA by the Agency for the purposes for which such accounts were established.
3. Agency shall be maintained as a loss
payee or coinsured on any policy of fire, casualty,
construction or liability insurance obtained or
maintained by the Developer in connection with the
construction and management of the Development.
4. Agency shall have the right to inspect
the buildings (including the interior units thereof)
grounds, books and records, and any financial records
maintained for the Development, upon request of the
Agency, during normal business hours.
5. Developer shall provide Agency with
copies of the following documen-ts at such time as they are furnished to or received from the Department of
Housing and Urban Development ("HUD") and/or FHA:
a. Annual audited financial statements in a
format approved by HUD.
b. HUD annual management reviews of the
project.
c. HUD's approval of all rent increases.
6. During the first three years of the
Development's operations, Developer agrees to maintain
with the Agency, in cash or cash equivalent, an
operating deficit escrow meeting the terms set forth in the Agency's Development Loan Commitment.
7. The Developer covenants and agrees with
the Agency that not less than 20 percent of the total
number of units in the Development shall be for
occupancy on a pri_ori ty basis by lower-income
households, as defined in Section S0079.S of the Act at affordable rents, as defined by the Act, for a period of 2 O40024-0002-068-0393j 08/24/82
( (
not less than 20 years f1·om the date the Loan is made.
The provisions of this paragraph 7 shall be binding upon all successors in interest of the Developer. - ·.:::.::
8. The-Developer covenants with respect to . the Development that:
a. At all times during a twenty-year period,
commencing with the date the Development is first
available for occupancy, the Developer will take
all necessary actions to ensure that 100 percent of
the dwelling units in the Development are rented
and occupied, or available for rental by, persons
and families other than the owner of the
Development or an individual related to such owner
who are members of the general public, and at least
20 percent of the dwelling units in the Development
are occupied by persons and families of low or
moderate income within the meaning of Section
l67(k)(3)(B) of the Internal Revenue Code of 1954,
as amended (referred to herein as "persons and
families of low or moderate income" or "persons or
families of low or moderate income"). The status
of a tenant as "the owner of the Development or en
individual related to such owner" shall be
determined in accordance with Section 103(b)(4)(A)
of the Internal Revenue Code of 1954, and any
proposed, temporary or final regulations
promulgated thereunder applicable to the
Development. For the purpose of compliance with
this paragraph, tenants who qualify as persons or
families of low or moderate income at the
commencement of their tenancy shall be deemed to be
persons or families of low or moderate income for
the duration of their tenancy, and vacant units as
to which the immediately preceding tenants were
persons or families of low or moderate income shall
be deemed to be occupied by persons or families of
low or moderate income so long as they remain
available for rent by persons and families of low
or moderate income. In the event such a vacant
unit remains vacant for _more than thirty (30) days,
and the number of dwelling units occupied·by
persons and families of low or moderate income
(excluding vacant units) constitutes less than 20%
of the units in the Development, the Developer
shall make such vacant unit available to persons
and families of low or moderate income at annual
rentals not -exceeding 30% of the low or moderate
income level, as determined pursuant to Section
167(k)(3)(B) of the- Internal Revenue -Code of 1954,
as amended.
3 040024-0002-068-0393j 08/24/82
(
b. The Developer and the Agency shall at all
times do and perform all acts and things permitted
by law and necessary or desirable in order to
assure that interest paid by the Agency on the
Bonds of the Agency the proceeds of which are being
used to make the Loan shall, for the purposes of
·• Federal income taxes and State of California
personal income taxes, be exempt from all in=ome
taxation under any valid provision of law, except
that the Developer and the Agency shall r.ot be in
violation of this covenant as a result of any Bond
being held by a person who, within the meaning of
Section 103(b)(10) of the Internal Revenue Code of
1954, as amended, is a "substantial user" of the
facilities with respect to which the proceeds of
the lbnds were used or is a "related person" within
the meaning of Section 103(b)(6)(C) of the Internal
Revenue Code of 1954, as amended.
9. In the event that the Developer transfers
title or the rights of possession and control of the
Development to·a third party, the Developer hereby
covenants and agrees to include provisions, in a form
substantially similar to Exhibit B hereto, in all
documents involved with such transfer which require the acquiring party, as well as any successors in interest
to such party, to assume the obligations of the
Developer imposed by paragraph 8 ·of this Agreement. In the event that such provisions are not included in any
such document, such provisions shall be deemed to be
included in such document. The Agency is a third party
beneficiary of any transfer document provisions required pursuant to this Section with the right to enforce such provisions against any third party transferee of the
Development. The Developer hereby assigns to the Agency any and all rights that it may have to enforce against
third party transferees those transfer document
provisions required pursuant to this Section.
10. Notwithstanding any other provisions of
this Agreement, if an involuntary loss or the
substantial destruction of the Development as a result
of unforeseen events such as fire, seizure, requisition, foreclosure or condemnation occurs which would render
compliance with the provisions of Sections 7 through 9
of this Agreement unnecessary to preserve the exemption from federal income taxes of interest on the Bonds and
to comply with the provisions of the Act, and the
Secretary of Housing and Urban Development or his
successor has been assigned the loan relating to the
Development or holds title to the Development, said
4 040024-0002-068-0393j 08/24/82
(
Secretary shall not be bound by the covenants,
co-bdi tions and restrictions of Sections 7 througr .. 9 of this Agreement.
DEVELOPER
b~
CALIFORNIA Housrl\11,j -yr~AWcc-~
AGENCY ~
byH~
Development Officer
5 040024-0002-06B-0393j OB/24/82
. ·, ..