HomeMy WebLinkAboutRDA 03 REDEV PROPERTY 09-21-98AGar, DA
PI)A** NO.
9-21-98
In t e r-C o
DATE:
TO:
FROM:
SUBJECT:
SEPTEMBER 21, 1998
WILLIAM A. HUSTON, EXECUTIVE DIRECTOR
REDEVELOPMENT AGENCY STAFF
APPROVAL OF DISPOSITION AND DEVELOPMENT AGREEMENTS FOR THE
REDEVELOPMENT OF PROPERTY LOCATED IN THE VICINITY OF SIXTH.
STREET AND EL CAM1NO REAL
SUMMARY: Agency approval is requested for two Disposition and Development
Agreements (DDAs) for two adjacent sites to be redevel0ped in the Town Center Project
Area.
RECOMMENDATION
Staff recommends the Redevelopment Agency take the following actions:
1. Adopt Resolutions No. RDA 98-6 and No. RDA 98-7 certifying the Negative Declarations as
adequate for both proposed DDAs.
.
b.
Subject to non-substantive modifications approved by the Executive Director and Agency
Counsel, authorize the Executive Director to execute:
a. The DDA among the Tustin Community Redevelopment Agency and Warmin~on
Old Town Associates, L.P. for a new 38-unit single family residential development
project on the site located at 120- 250 Sixth Street; and
The DDA between the Tustin Community Redevelopment Agency, Ford Family
Trust ("Owner"), DeBeikes Investment Company ("Developer") and Wmmington
Homes California ("Contractor") for rehabilitation of the commercial properties
located at 715 - 765 E1Camino Real.
.
Appropriate $1,665,500 out of the Housing Set-Aside Fund for the Town Center
Redevelopment Project for the development of affordable housing units and $165,000 out of
the Town Center Redevelopment Project tax increment funds for the rehabilitation of the
commercial properties~
FISCAL IMPACT
Agency Assistance for the residential project is estimated not to exceed $1,665,500. The Agency
will be responsible for additional tenant relocation costs in the amount of $652,690, which is
included in the 1998 - 1999 Redevelopment Agency budget.
Agency Assistance for the commercial rehabilitation project is estimated not to exceed $165,000
from Town Center Redevelopment Project tax increment funds.
BACKGROUND AND DISCUSSION
On December 23, 1997 the Agency authorized exclusiVe negotiations with DeBeikes Im, estment
Company for the redevelopment of the property commonly referred to as .the Tustin Meadows
Apartments, a 56-unit apartment complex at 120- 250 Sixth Street and commercial property at
715 - 765 E1 Camino Real. DeBeikes Investment Company has negotiated with Warmington
Homes California with the creation of Warmington Old Town Associates, L.P. to acquire the
Tustin Meadows Apartments, demolish the existing improvements and construct a small lot,
single family project. The Ford Family Trust will retain the commercial properties along E1
Camino Real which will be rehabilitated by DeBeikes Investment Company to ensure
compatibility with the proposed single family development. Accordingly, two Disposition and
Development Agreements are attached for the Agency's cOnsideration with each separate
agreement more fully described below.
Single-Family Residential Project
Warmington Old T. own Associates, L.P., a California Limited Partnership comprised of
Warmington Homes California as the General Partner and Pacific Auto Wash Partners, L.P.
(DeBeikes), Lexington Investment Company and Oxford 'Investment Company as Limited
Partner, proposes the construction of thirty-eight.(38) small lot, detached single family homes for
sale to owner occupants. The concept plan for the single-family home development calls for
three two-story floor plans with six architecturally distinctive elevations that are reflective of the
architectural styles in Old Town Tustin. The plan encourages pedestrian activities by placing the
front entryways with patios and porches xdsible to the private street and landscaped front yards.
The project will require Warmington Homes to secure all required land use entitlements from the
Tustin Planning Commission and City Council within the times established in the DDA. The site
improvements will be constructed in compliance with all provisions of the DDA and with all
"Conditions of Approval" stipulated by the Tustin Planning Commission, the City Council and
other applicable governmental agencies having jurisdiction.
Except for the Agency assistance amount described below, th~ DDA requires the Developer to
obtain funds necessary for all project costs, including but not limited to, the acquisition of the
site, demolition of existing improvements, constrUction of on-site and off-site improvements, and
all public utility improVements related to developing the site..
Agency financial assistance will be proxSded to assist the Developer to acquire the site and
enable the Developer: (1) to demolish Certain existing improvements on the site that ~e deemed
to be a blighting influence in the Project Area; (2) to provide for the development of a 38-unit
single family, owner occupied residential project; and (3) to record covenants requiring the
maintenance of affordability until November 22, 2016 of eight (8) such owner occupied units at a
price not to exceed the affordable housing cost for moderate-income persons and families. The
total Agency assistance to the Developer will be an amount not to exceed $1,665,500 to be
disbursed over time, to enhance the value of the Agency's security. An initial amount of
$778,800 will be deposited into escrow for the Developer's purchase of the site. Subsequent
amounts will be disbursed as follows: up to $493,000 to be disbursed in an amount equal to 35%
of each lender draw approved for land development; and, up to $393,700 to be disbursed in an
amount equal to 35% of each lender draw approved for unit construction and marketing. The
total amount of Agency assistance may be reduced by the Developer's project cost-savings.or
higher profits fi.om the sale of the single family homes as summarized below:
If there are cost savings from adjustments to school fees and Water hook-up fees to be paid
by the Developer, then the Agency's Land Development Assistance will be reduced by an
'amount equal to the savings;
If Project Costs are less than the sources of funding described in the DDA and the subtotal
amounts set forth in the Project Budget, then fifty percent (50%) of the difference will be
paid by the Developer to the Agency; and
· If the sum of the Developer's profit from the Project exceeds $852,000, then fifty percent
(50%) of the difference will be paid by the Developer to the Agency.
The DDA requires a certified audit of all Project Costs prior to the' issuance of a Certificate of
Compliance by the Agency to ensure that any cost savings or additional profits are identified
prior to releasing the Developer from its obligations under the DDA.
The Agency assistance will be in the form of a loan evidenced by a Promissory Note in the
amount of $1,665,500 and secured by a Deed of Trust to be recorded as a lien against the site.
The deed will be subordinate to any other permitted mortgage approved by the Agency for the
acquisition of the site and the Construction of the site improvements prior to the issuance by the
Agency of a Certificate of Compliance. Prior to January 1; 2001 and subject to the Developer's
satisfactory completion of the site improvements as required by the DDA and the Agency's
issuance of a Certificate of Compliance, the-total amount of the loan, less any Agency assistance
reductions or repayments as identified above, may be forgiven by the Agency.
The Agency in addition will be obligated to provide all eli~ble displaced residential occupants at
the Tustin Meadows Apartments financial payments pursuant to State relocation requirements
and the Relocation Plan approved by the Agency on June 15, 1998. The projected amount for
this relocation assistance is estimated at $652,690.
Commercial Rehabilitation Project
DeBeikes Investment Company as Developer and Warmin~on Homes California as Contractor
for the Ford Family Trust and signatures to the DDA between the Agency and the Ford Family
Trust proposes to construct certain rehabilitation improvements to the retail buildings located at
715 - 765 E1 Camino Real. Concept plans for the commercial rehabilitation work includes
design upgrades to the building elevations to create a distinctive architectural quality and
character, both individually and in the context of Old Town Tustin, resurfacing and
improvements to the parking lot and installation of site landscaping.
The Owner and/or Developer is required to secure all land use entitlement approvals from the
Tustin Planning Commission and City Council as applicable, concurrent with the approvals for
the residential project and within the time limits established in the DDA. The site improvements
will be constructed in compliance with all provisions of the DDA and with all "Conditions of
Approval" stipulated by the Tustin Planning Commission, the City Council and other applicable
governmental agencies having jurisdiction.
The total rehabilitation budget is $227,3.19 with total Agency assistance to be in an amount up to
$165,000. The Owner's obligation for the improvements will be an amount up to $50,435 with
an additional amount not less than $12,000 to be paid from the land development budget
provided in the Residential DDA between the Agency and Warmington Old Town Associates,
L.P. If actual construction bids indicate a potential cost overnm on an individual rehabilitation
budget line item, subject to the review of at least two additional subcontractor bids, the Agency
and the Owner will use their best efforts and good faith to identify either a suitable alternative
improvement to hold to the original budget or agree to a cost sharing between the parties for such
cost ovemm.
Agency financial assistance will be provided as progress payments to reimburse the Owner for
the construction of the Rehabilitation Improvements. The Agency assistance for the commercial
rehabilitation will be in the form of a loan evidenced by a separate Promissory Note and secured
by a Deed of Trust to be recorded as a lien against the commercial property when subdivided per
the DDA. The terms of the commercial rehabilitation loan provide for the forg-iveness of the
principal and interest amounts by the Agency within 7 years after the Agency's issuance of a
Certificate of Compliance.
REDEVELOPMENT AGENCY AND CITY REVENUES
The proposed projects' development costs and the anticipated sales prices for the single-family
residential units are estimated to generate approximately $8.8 million in property tax valuation
upon completion of the project. This will represent an approximate annual net increase in tax
increment of $88,000 to the Town Center Redevelopment Project Area. The commercial
rehabilitation project can be expected to enhance the viability of the retail sales at the existing
property, which is currently generating approximately $7,500 in sales tax revenue to the City.
The commercial rehabilitation project will also generate an approximate $2,150 annual net
increase in tax increment in the Town Center Redevelopment Project.Area.
CEQA CERTIFICATION OF NEGATIVE DECLARATIONS
Staff has completed an environmental assessment of each DDA in compliance with the
California Environmental Quality Act (CEQA). Approval of each DDA will not have the
potential to degrade the quality of the environment and no significant environmental effects of
the projects are expected.
The DDA's stipulate that the Developer obtain certain land use and regulatory approvals from
the City as conditions precedent to receiving Agency assistanCe for development or rehabilitation-
of the site. When furore applications are submitted to the City pursuant to the DDA's, additional
environmental review will occur at that time.
An Initial Study/Negative Declaration for each DDA has been noticed for public review pursuant
to the requirements of CEQA and no public comments were received during the public review
and comment period, which closed on July 20, 1998.
FINDING OF BENEFIT
The sites are located in the Town Center Project Area. On December 5, 1994 the Tustin
Community Redevelopment .Agency adopted a five-year Implementation Plan for the Town
Center and South/Central Redevelopment Project areas for fiscal years 1995-1996 through 1999-
2000. The Implementation Plan was composed of two parts, a five-year plan for redevelopment
activities and a five-year plan for housing activities.
The proposed residential redevelopment project is consistent with the Implementation Plan's
five-year plan for housing activities for the Town Center Project Area. Anticipated
accomplishments and expenditures for the five-year period included the development of 120
owner occupied dwelling units in the Town Center Project Area. The Project will remove a
blighting influence in the Project Area by demolishing an existing apartment project that is
characterized by substantial deferred maintenance and a high incidence of crime and developing
a 38-unit hdme ownership project that would allow for the expenditure of housing, set-aside
funds. The project will contain certain affordability restrictions for eight (8) units and will allow
for the utilization of the Mortgage Credit Certificate (MCC) Program and the First-Time
Homebuyer programs adopted in the Implementation Plan. It is anticipated that the project will
not reduce the number of affordable housing units in the Project Area, while it will increase the
number of ownership units.
The proposed commercial rehabilitation project is consistent with the Implementation Plan's
five-year plan for redevelopment activities for the Town Center Project Area. The Agency's
assistance will 'rehabilitate the existing substandard and deteriorating structures to improve
building conditions, increase functionality and desirability, and to integrate design characteristics
with the aim of creating a cohesive commercial district in the Project Area. The project will
remove a blighting influence in the Project Area due to deterioration, age and obsolescence, and
stimulate expansion and retention of existing and new business in the Project Area.
Christine A. Shingl~ton~~
Assistant City Manager
Attachments '
Jal~s A. D~aughon
Senior Redevelopment Project Manager
RESOLUTION NO. RDA 98-6 ·
A RESOLUTION OF THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING THE NEGATIVE
DECLARATION FOR THE DDA BETWEEN THE TUSTIN COMMUNI~
REDEVELOPMENT AGENCY, THE FORD FAMILY TRUST AND DEBEIKES
INVESTMENT COMPANY FOR THE PROPERTY LOCATED AT 715 - 765 EL
CAMINO REAL.
The Tustin Community Redevelopment Agency ("Agency") does hereby resoh,e as
follows:
I. The Agency finds and determines as follows:
A. That the Disposition and Development Agreement between the Agency and
the Ford Family Trust and DeBeikes Investment Company is considered a
"project" pursuant to the terms of the California Environmental Quality Act;
and
B. A Negative Declaration has been Prepared for this project and has been
distributed for public review.
Co
Whereas, the Agency has considered evidence presented by the
Redevelopment Agency staff and other interested parties with respect to the
subject Negative Declaration.
De
The Agency has evaluated the proposed Negative Declaration and determined
that the project will not have a significant effect on the environment and that
when applications for land use entitlements are submitted, .further
environmental r6view will occur and the project shall be conditioned as
necessary so that no significant' effects on the physical environment
OCCur.
A Negative Declaration has been completed in compliance with CEQA and state
guidelines. The Agency has received and considered the information contained in
the Negative Declaration prior to approving the project, and found that it
adequately discussed the environmental effects of the proposed project.
Further, the Agency finds the project involves not potential for any adverse effect,
either individually or cumulatively, on wildlife resources; and therefore, makes a
De Minimus Impact Finding related to Fish and Game Code Section 711.4.
PASSED AND ADOPTED at a regular meeting of the
Redevelopment Agency, held on the 21st day of September, 1998.
Tustin Community
THOMAS R. SALTARELLI, CHAIRPERSON
ATTEST:
PAMELA STOKER
RECORDING SECRETARY
RESOLUTION NO. R_DA 98-7 .
A RESOLUTION OF THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING THE NEGATIVE
DECLARATION DDA BETWEEN THE TUSTIN COMMUNITY REDEVELOPMENT
AGENCY AND WARMINGTON OLD TOWN ASSOCIATES, L.P. FOR THE
PROPERTY LOCATED AT 120- 250 SIXTH STREET.
The Tustin Community RedeVelopment Agency ("Agency") does hereby resolve as
follows:
I. The Agency finds and determines as follows:
A. That the Disposition and Development Agreement between the Agency and
Wmmin~on Old Town Associates, L.P. is considered a "project" pursuant to
the terms of the California Environmental Quality Act; and
B. A Negative Declaration has been prepared for this project and has been
distributed for public-review.
Co
Whereas, the Agency has considered evidence presented by the
Redevelopment Agency staff and other interested parties with respect to the
subject Negative Declaration.
Do
The Agency has evaluated the proposed Negative Declaration and has
determined that the project will not have a significant effect on the
environment and that when applications for land use entitlements are
submitted, further environmental review will occur and the project shall be
conditioned as necessary so that no significant effects on the physical
environment will occur.
A Negative Declaration has been completed in compliance with CEQA and state
guidelines. The Agency has received and considered the information contained in
the Negative Declaration prior to approving the project, and found that it
adequately discussed the environmental effects of the proposed project.
Further, the Agency finds the project involves not potential for any adverse effect,
either individually or cumulatively, on wildlife resources; and therefore, makes a
De Minimus Impact Finding related to Fish and Game Code Section 711.4.
PASSED AND ADOPTED at a regular meeting of the
Redevelopment Agency, held on the 21st day of September, 1998.
Tustin Community
THOMAS R. SALTARELLI, CHAIRPERSON
ATTEST:
PAMELA STOKER
RECORDING SECRETARY
RESIDENTIAL PROJECT
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY,
as Agency,
and
WARMINGTON OLD TOWN ASSOCIATES, L.P.,
a. California Limited Partnership
· as Developer
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September 14. 1998
RESIDENTIAL PROJ]ECT DISPOSITION
Section 1
ne
B .
Ce
De
Section 2
Section 3
ne
·
Section 4
Section 5
A·
B ·
T~KBLE OF CONTE~S
.P~ ge
SUBJECT OF AGREEMENT ............ 1
Purpose of Agreement ............ !
The Redevelopment Plan' - ......... 2
Description of the Site ........... 2
Parties t0 the Agreement .......... 2
(!) Agency ............... 2
(2) Developer ................ 3
(3) Relationship of Agency to Developer . . . 3
DEFINITIONS ................. 3
PROHIBITION AGAINST CHANGE IN OWNERSHIP, MANAGEMENT AND
CONTROL OF DEVELOPER · . ........... 6
Importance of Developer Qualifications . . . 6
Prohibition Against Transfer ........ 6
(1) General Prohibition ........... 6
(2) Non-Applicability of Prohibition
Against Transfer for Sale of
Individual Lots ............. 8
(3) No Encumbrances Except Mortgages, Deeds
of Trust, Conveyances and Leases-Back
or Other Conveyances for Financing for
Development ............... 9
(4) Right of Agency to Cure Mortgage Deed of
Trust, or Other Security Interest Default 9
REPRESENTATIONS AND WARRANTIES OF DEVELOPER . !0
DEVELOPMENT OF THE SITE ........... 15
Agency
Cooperation ................. 15
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i September 14, 1998
Table of Contents (continued)
Pa9~
C. Developer ................. 16
(1) Plans and Drawings ........ 16
(2) Cost of Site Development and Construction 17
(3) Permits and Governmental Approvals . . . 17
(4) Local, State and Federal Laws .... ~ . . 18
(5) Schedule of Performance ......... 18
(6) Required Notifications . . . .... 19
Section 6.
a.
.
FINANCIAL ASSISTANCE TO DEVELOPER ...... 20
Purpose of Agency Financial Assistance to
Developer/Agency Assistance to be Credited,
Reduced or Repaid Due to Cost-Savings
or Higher. Profits .............
20
Submission and Approval of Evidence of Financing
Commitments ................. 22
C .
..
Initial Agency Loan Disbursement for Land Acquisition
Assistance ................. 23
(1) Conditions .............. 23.
(2) Amouht and Schedule ........... 25
De
Z ·
Section 7
Subsequent Disbursements of Agency Loan for Land
Acquisition Assistance ........... 26
~26
(1) Conditions ...............
(2) Amount and Schedule ........... 28
(3) Maintenance of Records ......... 29
Terms of Agency Loan ............ 30
AFFORDABLE UNIT REQUIREMENTS . . ...... 32
A. Identification and Sale of Affordable Units . 32
,
Ce
D·
32
Resale Restriction .............
Alternative to Resale Restriction ...... 32
33
Covenants ..................
Z ·
Resale Restriction Agreement and Option to
Purchase ..................
33
F. Modification of Affordable Unit Requirements 33
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i i September 14, 1998
Table of Contents (continued)
Section 8
Section 9
Ae
B e
C o
Do
Z~
Fe
MORTGAGE CREDIT CERTIFICATE PROGRAM AND FIRST
TIME HOMEBUYER LOANS ...........
CONDITIONS FOR CONSTRUCTION ........
Compliance with Laws ........
Time Limit for Construction ........
Required Licenses and Permits. .......
One (1) Year Warranty .... ~ .......
Quality of Work and Materials ........
Clean-up of Site and Adjacent Areas . ....
Section 10 USES OF THE SITE ..............
A. Uses ..................
B. Affordable Unit Purchaser Selection Process
and Criteria ................
C. Anti-Speculation Provisions .........
(1) Non-Restricted Units ..........
(2) Affordable Units . . . ........
D. Maintenance of the Site ...........
Section 11 CERTIFICATE OF COMPLIANCE ..........
Section 12 NON-DISCRIMINATION .............
A. Obligation to Refrain from Discrimination . .
B. Form of Non-discrimination and Non-Segregation
Covenants ..................
C. Duration of Covenants ............
Section 13 INSURANCE AND INDEMNIFICATION ........
A. Worker's Compensation, Bodily Injury and
Property Damage Insurance .. .........
B. Insurance Endorsements ...........
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68262 i i i September 14. 1998
Pace
--
34
34
34
34
35
35
35
35.
36
36
36
37
37
39
44
45
47
47
48
50
50
50
51
Table of Con6ents (continued)
C. Indemnification ...............
Section 14 DEFAULTS, REMEDIES AND TERMINATION .....
A. 'Default ........ , ........
B. Notice ..................
C. Cure Period ...............
D.' Rights and Remedies .............
E. Legal Actions ................
(1) Venue ........ . ...........
(2) Service of Process· . ..........
(3) Applicable Law .............
F. Rights of Termination ............
(!) Termination by Developer ........
(2) Termination by Agency ..........
G. Rights and Remedies Are Cumulative .....
H. Effect of Violation of the Terms and
Provisions of this Agreement ........
Section 15 GENERAL PROVISIONS ..............
a.
S ~
C ·
De
E ~
F~
G·
He
Disputes to be Determined by Agency.. ....
Local, State and Federal Laws ........
Taxes, Assessments., Encumbrances and Liens .
Rights of Access ..............
Conditions, Covenants and Restrictions . . .
Notices, Demands and Communications Between
the Parties .................
Conflicts of Interest ............
Enforced Delay; Extension of Times of
Performance ............ - ....
Pace
--
52
54
54
54
55
56
56
56
56
57
57
57
58
59
59
60
60
6O
60
61
61
61
62
62
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iv September 14. 1998
Table of Cont'ents (continued)
I ·
J·
Section 16
Non-liability of Officials and Employees of
Agency .................
Paae
--
A·
Section 17
Section 18
Section 19
64
Inspection of Books and Records ...... 64
SPECIAL PROVISIONS ............. 64
Successors In Interest ........... 64
ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS . . 65
EFFECT OF BREACH UNDER THE COMMERCIAL DDA . . 65
EFFECTIVE DATE OF THE AGREEMENT ......... 66
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V September 14. 1998
LIST OF ATTACHMENTS .
Attachment 1 -
Attachment 2 --
Attachment 3 -
Attachment 4 -
Attachment 5 -
Attachment 6 -
Attachment 7 -
Attachment 8 -
Attachment 9 -
Attachment 10 -
Attachment-il -
Attachment 12 -
Attachment 13 -
Map of Proposed Parcels
Legal Description
Scope of Development
Schedule of Performance
Method of Financing
Agency Loan Promissory Note
Agency Loan Trust Deed
Site Plan
Agreement to be Recorded Affecting Real Property
Intentionally Omitted
Certificate of Insurance
Resale Restriction Agreement and Option to
Purchase
Purchaser Warranty
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vi September 14. 1998
RESID~NTTJtL PROJECT DISPOSITION AlqD DE~rELOPM~NT AGRE~~.
THIS AGREEMENT is entered into by and between the TUSTIN
COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic,
to wit, a California community redevelopment agency ("Agency"), and
WARMINGTON OLD TOWN ASSOCIATES, L.P., a California limited
partnership ("Developer"), consisting of Warmington Homes California,
a California corporation, its general partner, and the following
limited partners: Pacific Auto Wash Partners, L..P., a California
limited partnership, Lexington Investment Company, a California
corporation, and Oxford Investment Company, a California corporation.
Agency and Developer hereby agree as follows:
Section I SUBJECT OF AGREEKENT
A. PU_~Dose of Acreement
The general purpose of this Agreement is to promote the
implementation and realization of the objectives of the Redevelopment
Plan (the "Redevelopment Plan") for the Town Center Redevelopment
Project Area (the "Project Area"), by providing for the improvement
of the hereinafter described Site with a 38 unit, single family,
-owner occupied project (the "Project").
The development and operation of the Site for such uses as
allowed pursuant to this Agreement and the fulfillment of this
Agreement are in the vital and best interest of the City of Tustin
and the health, safety, morals and welfare of its residents, and in
accord with the public purposes and provisions of applicable federal,
state and local laws. Completin~ the development on the Site will
1101-03 FINAL
68262 i · September 14, 1998
also eliminat~ blight in the Project Area, increase the supply of
moderate income, owner occupied housing in the community, provide
additional jobs for the community and substantially improve the
economic and physical conditions of the community in accordance with
the purposes and goals of the Redevelopment Plan.
B. The RedevelOPment plan
This Agreement is subject to the provisions of the
Redevelopment Plan which was approved and adopted by the City Council
of the City of Tustin by Ordinance No. 701 as amended by Ordinance
Nos. 855, 1021, and 1141. Said ordinances and the Redevelopment
Plan, as amended, are incorporated herein by 'reference and made a
part hereof.
C. Description of The Site
The "Site" is that portion of the City and the Project Area
designated and illustrated as ParcD1 1 on the Map of Proposed
Parcels, attaChed hereto and incorporated herein by reference as
Attachment 1., and having the legal description of Parcel I as set
forth in the Legal Description of the Site, attached hereto and
incorporated herein by reference as Attachment 2. The site is
currently'owned by the Ford Family Trust.
D. Parties to the Agreement .
(i) ~
Agency is a public body, corporate and politic, exercising
governmental functions and powers-and organized and existing under.
Chapter 2 .of the CommunitY Redevelopment Law of the State of
California. 'The p~incipal office and mailing address of Agency is:
FINAL
~ ~o~3 2 Se~mber ~4, ~998
300 Centennial Way, Tustin, CA 92780. "Agency", as used in.this
Agreement, includes the City of Tustin Community Redevelopment
Agency, and any assignee of or successor .to its rights, powers and
responsibilities.
(2) Developer
Developer is a California Limited Partnership. The mailing
address of Developer is: 3090 Pullman St., Suite A, Costa Mesa,
California 92626. Whenever the term "Developer" is used herein, such
term shall include any permitted assignee as herein provided.
(3). Re!a~ionsh~p of A~ency to Developer
It is hereby acknowledged that the relationship of Agency to
Developer is neither that of a partnership nor that of a joint
venture and that Agency shall not be deemed or construed for any
purpose to be the agent of Developer. Nor shall .Developer be deemed
or construed to be the agent of Agency.
Section 2 DEFINITIONS
"Affordable Housing Cost" means a price that does not exceed
the "Affordable Housing Cost for Moderate Income Households."
"Affordable Housing Cost For Moderate Income Households"
means, as more particularly defined in Health and Safety Code Section
50052, a price per unit which, results in annual housing payments for
the purchaser that do not exceed thirty-five percent (35%) times one
hundred ten percent (110%) of the Orange County Median Income,
adjusted for family size, and take into account principal and
interest, loan insurance, property taxes, fire and casualty
insurance, utilities and the homeowners association fees. In
1101-03 FINAL
68262 ~ September14,1998
addition· for'moderate income households, "Affordable ~ousing Cost"
(taking into account principal and interest· loan insurance, property
taxes, fire and casualty insurance· utilities and the homeowners
association fees) shall not be less than twenty-eight percent (28%)
of the gross income of the household. In accordance with ~ealth and
Safety Code section 50052.5(b) (3), Agency has determined and hereby
agrees that· for any moderate income household that has a gross
income that exceeds one hundred ten percent (110%) of the Orange
County Median Income adjusted for family size· the thirty-five
'-percent (35%) maximum component .... of the ,.Affordable Housing .CostTM
limitation described above need not be applied.
' ~City", as used in this Agreement, includes the city of
Tustin, and any assignee of or successor to its rights, powers and
responsibilities.
"Hazardous Substances" means substances defined as .hazardous
substances" .hazardous materials" or "toxic substances" in the
· '
ComprehenSive Environmental Response· Compensation and Liability Act
of 1980, as amended, 42 U.S.C. 9601, et seq; the Hazardous Materials
Transportation Act, 49 U.S.C. 1801,. et seq; the Resource Conservation
and Recovery Act of 1976, as amended, 42 U.S.C. 6901 .et seq; and
those, substances defined as."hazardous waste" in Section 25117 of the'
California Health and Safety Code or as "hazardous substances" in
Section 25316 of the California Health and Safety Code; and
substances defined in the .regulations adopted in publications
promulgated pursuant to such laws.
.Owner-Occupied" means that the unit is occupied by the owner
F~NAL
~ ~0~3 4 September 14, 1998
~262
thereof, as "said owner's principal place of residence, fo~ the
duration of each of said owner's ownership thereof. For the purpose
of this Agreement, "owner" shall mean the individual(s) appearing on
the deed to the property.
"Permitted Mortgage (Permitted Mortgagee)" means Developer's
construction loan agreement approved by Agency pursuant to Section
6B of this Agreement. Permitted Mortgagee(s) is the Developer's
lender approved by Agency.
"Persons and Families of Low and Moderate Income" means, as
more particularly defi~ed in Health and Safety Code Section_50093,
very low income households as defined in Health' and Safety Code
Section 50105, lower income hOusehOlds as defined in Health and
Safety Code Section 50079.5, and persons and families of moderate
income.
"To the Best of Developer's Knowledge," as used in Section 4,
Paragraphs I and J, means the actual, present knowledge of each of
Richard A. DeBeikes, Jr. and Brian L. Sinderhoff. Mr. DeBeikes is'
President of Checkered Flag Management Company, which is a California
corporation and the general partner of Pacific Auto Wash Partners,
L.P., and Mr. Sinderhoff is President of the Southern California
Division of Warmington Homes California. Among the present officers,
employees and agents of Developer and/or its Partners, Mr. DeBeikes
and Mr. Sinderhoff are the persons with the most knowledge .of the
Site and the Project. In their respective capacities, they are
authorized to make, on behalf of Developer, and bind Developer to,
those representations and warranties contained in Section 4,
1101~3 FINAL
~2~ ~ Septem~ 14, lgg8
Paragraphs I-' and J, that- are made "To the Best of Develqper's
PROHIBITION AGAINST CHANGE IN OWNERSHIP, MANAGEMENT AND
CONTROL OF DEVELOPER
A. Importance of Developer 0ualifications
Developer recognizes that, in view of the following, the
professional qualifications and reputation of Developer, and its
,
principals, are of particular concern to the community and Agency:
1) the importance of the redevelopment- of the
Site to the general welfare of the community;
2) the public assistance that has been made
available by law and by the City and Agency for the purpose of making
such redevelopment possible;
·
31) the fact that a change 'in ownership or control
of Developer or of its partners, or any other act or transaction
involving or resulting in a significant change in ownership or
control of Developer or the degree of control thereof, 'is for'
practical purposes, a transfer or disposition of the Site then owned
by Developer' ~
4) that it is because of the professional
qualifications and reputation of Developer that Agency is entering
into this Agreement with Developer.
B. Prohibition Acainst Transfer
(1) General Prohibition
Developer shall not, except as expressly permitted by this
Agreement, assign or attempt to assign this Agreement or any righ~
68262 6 September 14, 1998
Knowl edge."
Section 3
herein, nor make any total or partial sale, transfer, conveyance or
assignment of the whole or any part of the Site or the Site-
Improvements, without prior written approval of Agency, which
approval shall not be unreasonably withheld'.
Any such proposed transferee shall have the qualifications
and financial responsibility necessary and adequate as may be
reasonably determined by Agency and shall have comparable
.
professional reputation for quality design and construction to
Developer, as may be reasonably determined by Agency. Any such
·
-proposed transferee, by a.-recordablewritten instrument, satisfactory
to AgenCy, for such proposed transferee and its successors and
assigns, and for the benefit of Agency, shall expressly assume all
of the obligations of Developer under this Agreement and agree to be
subject to all conditions and restrictions to which Devel.oper is
subject. There shall be submitted to Agency for review and approval
..
all instruments and other legal documents proposed to effect any such
transfer; and if approved by Agency, its approval shall be indicated
to Developer in writing.
Notwithstanding the foregoing, however, and subject to
Agency's good faith review and approval of the transferee's ability
to perform this Agreement, Developer may transfer its interest in the
Site, the Site Improvements and this Agreement to any other
California general or -limited partnership, corporation, or
·
individual, in good standing and authorized to do business in the
State of California, so long as all of the requirements of this
SeCtion 3 are met, including Agency's written approval. Developer
1101-03 FINAL
68262 7 September 14, 1998
shall, at leagt thirty (30) business days in advance of the transfer,
'provide to Agency, for its review and approval: (1) a copy of the
proposed recordable written transfer and assumption instrument
pursuant 'to which the transferee expressly assumes all of the
obligations Of Developer under this Agreement and agrees to be
subject to all conditions and restrictions to which Developer is.
subject hereunder, satisfactory to Agency, and (2) financial
information and other information sufficient to satisfy Agency, in
its good faith discretion, that the transferee is able to perform
this Agreement.
In the absence of specific written approval by Agency, as
provided above, no sale, transfer, conveyance or assignment of the
Site or any portion thereof, shall be deemed to relieve Developer or
any other party from any obligations under this Agreement.
(2) Non-Applicability of Prohibition Aca~nst Transfer
·
.for Sale of Individual Lots
Recognizing the Site will be subdivided and developed with
the intent to sell individual, residential lots to the general
public, the general prohibition against transfer outlined in
subsection (B) herein, shall not be applicable to the sale of
individual units and sold to the general public as part of this
Agreement or to the transfer of "common area" property to the
Homeowners-Association being established pursuant to the laws and
regulations of the State of California for the management of the
Site.
FINAL
1101-03 8 September 14. 1998
68262
No Encumbrances Except Mortgages. Deeds of Trust~
·
Conveyances and Leases-Back or Other Conveyances
for Financing for Development
Notwithstanding subsection (1) herein, mortgages, deeds of
trusts, conveyances and leaseback, or any other form of conveyance
required for the financing are permitted for the purposes of securing
loans of funds to be used for financing the expenditures necessary
and.appropriate to construct the Site Improvements as required by
this Agreement. Developer shall notify Agency in advance of any
- mortgage, deed of-trust, conveyances.and leaseback, or other form of
conveyance for financing if Developer proposes to enter into the same
before recordation of a Certificate of Compliance, as defined in
Section 11. Developer shall not enter into any such conveyance'for
financing without the prior written approval of Agency, and such
approval shall not be unreasonably withheld or delayed. The words
"mortgage" and "deed of trust" as used herein includes all other
appropriate modes of financing real estate acquisition, construction
and land development.
(4) Right of Agency to Cure Mortgage Deed of Trust~ or
Other Security Interest Default
In the event of a default or breach by Developer of any
mortgage, deed of trust or other security interest with respect to
the Site (or any portion thereof) prior to the recordation of a
Certificate of Compliance, as defined in Section 11, below, Agency,
in accordance with the terms and conditions of the applicable
mortgage, deed of trust or other security interest or as Otherwise
1101-03 FINAL
68262 9 September 14. 1998
provided by l'aw, may cure the default prior to completion o~ any
foreclosure. In such event, Agency shall be entitled to
reimbursement from Developer of all costs and expenses incurred by
Agency in curing the default. Agency shall also be entitled to a
lien upon the Site (or any portion thereof) to the extent of such
costs'and disbursements. Any such lien shall be subordinate and
subject to mortgages, deeds of trust, or other security instruments
executed 'for the sole purpose of obtaining funds to acquire and
develop 'the Site as authorized herein.
Section &. REPRESENTATIONS AND WARRANTIES OF DEVELOPER .
Developer represents and warrants to Agency that Developer
has the experience, qualifications and legal status necessary to
perform as Developer pursuant to this Agreement. As an inducement
to Agency to enter into this Agreement, Developer represents and
warrants to Agency as follows:
A. Developer represents and agrees that its
acquisition of the Site and its other undertakings pursuant to this
Agreement are for the purpose of redevelopment of the Site and not
for speculation or land holding.
B. Developer and.each partner of Developer has
duly authorized, executed and delivered this Agreement and any and
all other agreements and documents required to be executed and
·
delivered by them in order to carry out, give effect to, and
consummate the transactions contemplated by this Agreement.
C. Developer has the legal power, right and
authority to enter into this Agreement and the instruments referenced
~ lO~3 1 0 ~ptem~r 14. 1998
~262
herein, and to consummate the transactions contemplated hereby;
D. All requisite corporate or partnership action
has been taken by Developer and its partners in connection with the
entering into this Agreement, the instruments referenced herein, and
the consummation of the transactions contemplated hereby. No consent
of any additional partner, individual, corporation, shareholder,
creditor, investor, judicial or administrative body, authority or
other party is required;
E. The individuals executing ~his Agreement and
the instruments referenced herein on behalf_ of .... Developem._and its
partners thereof, have the legal power, right and actual authority
to bind Developer to the terms and Conditions hereof and thereof;
F. This Agreement and all documents required
hereby to be executed by Developer and its partners are and shall be
valid, legally binding obligations of and enforceable against
Developer and its partners, as applicable, in accordance with their
terms, subject only to applicable bankruptcy, insolvency,
reorganization, interim zoning ordinances, and similar laws or
equitable principals affecting or limiting the rights of contracting
·
p~rties generally;
G.. Neither the execution and delivery of this
Agreement and the documents referenced herein, nor the incurring of
the obligations set forth herein, nor the consummation of the
transactions herein contemplated, nor compliance with the terms of
this Agreement and the documents referenced herein conflict with or
result in the material breach of any terms, conditions, or provisions
1101-03 FINAL
68262 11 September 14. 1998
of, or constitute a default under any bond, note, or other evidence
of indebtedness or any contract, indenture,, mortgage, deed of trust,
loan partnership agreement, lease or other agreements or instruments
to which Developer or any of its partners are a party, or affecting
the Site;
H. No attachments, execution proceedings,
assignments of benefit of creditors, bankruptcy, reorganization or
·
other proceedings are pending or threatened against Developer or its
partner's.
.I. ~o the Best of Developer's Knowledge, except
as otherwise previously disclosed by Developer', to Agency, in
writing, pursuant to that certain Asbestos Survey Report, Tustin
Meadows Apartments, dated June 17, 1998, prepared for Warmington
Homes by Masek Consulting Services, Inc. and that certain Phase I
Environmental Site Assessment for Warmington Homes, Tustin Meadows '
Apartments Property, prepared by Aqua Science Engineers, Inc., which
writings are incorporated herein'by reference and' copies of which are
on file with Agency:
(a) Developer does not use, treat, store or
·
dispose of, and, to the best of Developer's knowledge, has not
permitted anyone else to use, treat, store or dispose of Hazardous
Substances at, on or beneath the Site in violation of any federal,
state or local law, regulation or ordinance;
(b) With the exception of asbestos in the
existing structures on the Site, (which structures shall be
demolished by Developer and which asbestos shall be removed by
1101~3 FINAL
68262 12 Se~ember 14, 1998
Developer) no Hazardous Substances are present, and no Hazardous
·
Substances have been used, treated, stored, released or disposed of,
at, on or beneath the Site, which have created or might create any
liability of owners or occupants of the Site under any federal, state
or local' law or regulation or which would require reporting to a
governmental agency;
(c) No polychlorinated byphenyls ("PCB's")
are contained in or stored on the Site; and
(d) There are no undergroLu3d storage tanks
-- located in, on or under the .Site,. except, for the fluid retention
basin associated with the maintenance of the lawnmower shop;
J. To the Best of Developer's Knowledge, all
reports, documents, instruments, information and forms of evidence
delivered by Developer, to Agency, concerning or required by this
Agreement are accurate, correct, and sufficiently complete to give
Agency true and.accurate knowledge'of their subject .matter, and do
not contain any misrepresentation or omission; and
,
K. Developer has, and shall maintain throughout
the term of this Agreement, sufficient equity, capital and'firm and
binding commitments to (i) pay through completion, all costs of
development, construction, marketing and sale of all of the
improvements as defined in Attachment 3 hereto (the "Scope of
Development"); and (ii) enable Developer to perform and satisfy all
of the covenants of Developer contained in this Agreement. Developer
shall not'undertake such additional projects as could reasonably be
expected to jeopardize the sufficiency of such equity, capital and
1101~3 FINAL
~262 13 September 14, 1998
firm and binding commitments for the purposes expressed i~ the
precedin9 sentence.
L. Developer does not have any contingent
obligations or any other contracts which could materially and
adversely affect the ability of Developer to carry out its
obligations hereunder.
M. There are no material legal proceedings either
pending or, so far as is known to Developer, threatened, to which
Developer or either of its partners is or.may be made a party, or to
which any. of~ Developer's property, .including the Site, is or may
become subject; which has not been fully disclosed in the documents
submitted to Agency and which could materially adverselY affect the
ability of Developer to carry out its obligations hereunder.
N. Except as otherwise provided below, Developer
may perform the development of the Project and the construction of
the Site Improvements itself, Without the .use of a general
contractor, and with or without the use of various subcontractors for
'the performance of various aspects of the development and
construction.
Each of the foregoing items, A through N, inclusive, is
deemed to be an ongoing representation and warranty. Developer shall
promptly advise Agency in writing if there is any change pertaining
tO any matters set forth or referenced in the foregoin9 items, A
through N, inclusive.
All of the terms, covenants and conditions of this Agreement
shall be binding upon and shall inure to the benefit of the Parties
1101-03 FINAL
68262 14 September 14, 1998
and the permitted successors and assigns of the Parties.
Section 5 DEVELOPWr~.NT OF THE SITE
A.
(1) Subject to the terms and conditions herein, Agency
shall fund its cost obligations as set forth in Section 6. Subject
to Developer's reimbursement or payment obligation as set forth in
Section 14F, Agency shall provide relocation assistance to
residential tenants at the Site who are eligible for Relocation
Assistance under applicable law and in accordance with the approved
Relocation Plan for th~ Project.
(2) Agency shall have the right of review (including,
but not limited to, architectural review) and approval of all plans,
drawings and related documents (including the right to' review and
approve samples of all construction materials, finishes, fixtures,
hardware, roofing materials and similar items called out .in the
specifications) for the development of the Site, including any
proposed changes therein subject to other provisions hereof.
B. Cooperation
(1) During Developer's preparation of all drawings and
plans, Agency staff and Developer shall hold regular progress
meetings, not less than monthly, to coordinate the preparation of,
submission of, and review of Construction plans and related documents
by the Agency. Such meetings shall serve as a forum for the exchange
of information concerning the design of the Project. The Agency and
Developer shall communicate and consult informally as frequently as
is necessary to ensure that the formal submittal of any documents to
1101-03 FINAL
68262 15 September 14, 1998
the Agency can receive prompt and speedy consideration. . The
Developer shall prepare and distribute minutes of the meetings to the
Agency, the architect and all others in attendance, if requested by
the Agency. Upon receipt of a disapproval as described in Section
A(2) above, Developer, shall revise such Portions of the plans,
drawings or related documents in a manner that satisfies the reasons
for disapproval, and shall resubmit 'sUch revised portions to the
Agency as soon as possible after receipt of the notice of
disapproval.
(2) If.a~y revisions or correction shall be required by
any government official, agency, department or bureau having
jurisdiction, or any lending institution involved in financing the'
Site Improvements, of plans approved by the Agency, the Developer and
the Agency shall cooperate in effort to develop a mutually acceptable
revision or correction.
C. Developer
The Site shall be developed by Developer pursuant to this
Agreement and in accordance with and within the limitations
established in the "Scope of Development", which is attached hereto
as Attachment 3-and incorporated herein by this reference and all
plans approved by Agency·and city of Tustin.
(1) plans and Drawings'
Developer shall prepare, complete and submit to Agency, for
its approval, the Basic Concept Drawings, the Design Development
Drawings and Final Construction Drawings and Related Documents,
consistent with the requirements set forth in Attachment' 3 and in
FINAL
1101-03 16 September 14, 1998
68262
accordance with the times for performance set forth in the Schedule
of Performance, Attachment 4. The Site shall be developed
substantially as shown on the approved Site plan (attached hereto and
incorporated herein by reference as Attachment 8), the Basic Concept
Drawings, Design Development Drawings, Final Construction Drawings
and Related Documents. Changes to approved plans and drawings may
be approved only in writing signed by both Developer and Agency. Any
such written changes shall be within the limitations of the Scope of
Development.
(2) Cost of Site Development and ConstructioD
Except for the Agency Assistance described in Section 6,
Developer shall bear the cost of planning, designing, preparing the
Site and constructing all Site Improvements thereon.
(3) Permits and Governmental Approvals
The Developer shall process, secure or cause to be secured
any and all permits, certificates and approvals which may be required
by the Agency, the City of Tustin or any other governmental agency
with jurisdiction over the Site and/or over the construction of the
Project, including, but not limited to, a parcel or tract map to
create the Site as a legal parcel and to subsequently subdivide such
legal parcel for residential development, necessary building permits
and all approvals required under the California Environmental Quality
Act, Public Resources Code 21000 et seq., as amended or re-codified
from time to time. Not by way of limiting the foregoing, in
developing'and constructing the Project, Developer shall ensure that
the Project complies'with all applicable development standards in the
1101~3 FINAL
68262 [~ Sep~mber14,1998
City of Tu~tin Municipal Code and with all building code,
landscaping, signage and parking requirements, except as may be
permitted through approved variances and modifications.
(4) Local~ State and Federal Laws
The Developer shall carry out the constructiOn of the
improvements on the Site in conformity with all applicable laws,
including all applicable federal and state labor standards.
(5) Schedule of Performance
Developer shall begin and complete the construction and
development of the Site Improvements within the times specified in
the Schedule Of Performance, attached hereto as Attachment 4, and
incorporated herein by this reference.
Agency may, at its sole discretion and upon written request
from Developer, extend the times specified in the Schedule of
Performance dealing with construction of Improvements. Any such
extensions shall not be deemed as amendments to this Agreement, as
defined in Section 17, hereof. Any such extensions shall be
evidenced by written notice from Agency's Executive Director or
his/her designee.. If Developer presents evidence satisfactory to
Agency that Developer has diligently and reasonably attempted to meet
the times specified in the Schedule of Performance but that the
constructed improvements are not being sold at a rate.justifying the
construction of additional improvements within the times specified
in- the. Schedule of Performance due to circumstances beyond
Developer's control, 'Agency shall not unreasonably, withhold its
approval of extensions of time as requested by Developer. Agency
1101~3 FINAL
6~62 18 Septem~ 14, 1~8
may, however,"approve an extension for a shorter period of time than.
·
requested by Developer.
(6) Required Notifications
The Developer shall promptly after obtaining knowledge
thereof, notify Agency in writing of the following:
A. Any litigation affecting Developer or the
Project.
B. Any communication, whether written or oral,
that Developer receives from any governmental authority claiming or
asserting that any aspect of work of the Site Improvement fails in
any respect to comply with any governmental requirements, or
threatening to suspend or revoke any governmental approval.
C. Any material adverse change in the physical
condition of the Site or the Project, or the financial condition or
operations of the Developer.
D. Any material default by the Developer's'
contractor, architect, engineer or by any subcontractor, vendor or
supplier, having a contract in exCess of $100,000, any material
adverse change in the financial condition or operations of any of
them, or the filing of a petition by or against any of the under any
debtor relief law.
E. Any cessation in the work in excess of five
(5) business days.
F. .Any damage to or destruction of any portion of
the Project where the cost to repair and restore will exceed $25,000.
G. .AnY defect in design or construction where the
1101~3 FINAL
~262 1 9 September 14. 1998
cost to correct will require a change, or the delay that wi~! be
caused will exceed five (5) business days.
H. Any lien, charge or encumbrance affecting the
Project not ex!pressly permitted hereby.
I. Any change in (i) the location of Developer's
business; (ii) the legal or trade business names used by Developer;
or (iii) the nature of Developer's business.
J. The existence of any material default or
failure to perform an 'obligation by ~any party under any contract
relating to the Project -- _
K. The existence of any Default by Developer, or
any condition or event which with the giving of notice or passage 'of
time, or both, would constitute' Default, the nature thereof, and the
corrective steps Developer is taking with respect thereto.
Section 6 FINANCIAL ASSISTANCE TO DEVELOPER
A. Purpose of A~encv Financial Assistance to
Developer/Agency Assistance to be Credited~ Reduced~ or
Repaid_Due to Cost-Savings or Higher Profits
The purpose of Agency financial assistance to Developer is to
provide Developer with an amount not to exceed one million six
hundred sixty-five thousand five hundred dollars ($1,665,500.00) in
assistance for acquisition of the Site. Following completion of such
acquisition, and within the time frames required under this Agreement
and the Attachments hereto, Developer shall: (1). demolish certain
existing improvements on the Site which improvements are deemed to
be a blighting influence in the Project Area; (2) develop a 38 unit
1101-03 FINAL
6S262 2 0 September 14, 1998
single family'~ owner occupied residential project on the Site;.and
(3) record covenants requiring the maintenance of affordabi!ity until
November 22, 2016 of eight (8) such owner occupied single family
units at an Affordable Housing Cost.' It shall be the responsibility
of Developer to obtain funds necessary to develop the Site in
accordance with this Agreement, including funding any Project Costs
(as defined in the Method of Financing, attached hereto and
incorporated herein by reference as Attachment 5) in excess of the
estimated total Project Cost of $9,603,500, less Agency Land
Acquisition Assistance. The Agency Land Acquisition Assistance
amount shall be disbursed over time, to enhance the value of Agency's
security.
Viewing the total Project Costs as a whole, the total amount
of Agency's Land Acquisition Assistance may be reduced by Developer's
total Project cost-savings, including, but not limited to,
adjustments to school fees and water hook-up credits. Any
repayments due Agency as a result of total Project cost-savings (even
though no Project cost-savings shall be realized with respect to land
acquisition costs per se) shall be made prior to Agency's issuance
of a CertifiCate of Compliance. In the event that the Developer's
profits exceed $852,000.00 the Agency shall be entitled to a
repayment of Agency Land Acquisition Assistance in an amount equal
to 50% -of the higher profit. Such repayment shall be made by
Developer prior to Agency's issuance of a Certificate of Compliance.
The reduction in Agency Land Acquisition Assistance and repayment due
Agency are more fully described in the Method of Financing,
FINAL
1101~3 2 1 ~ptember 14, 1998
~2
Attachment 5."
B. $~bm~ssion and Approval of Evidence of F±nanci~g
Commitments
As conditions Precedent to Agency's obligation to make
..
available any Agency assistance to Developer, and within the times
_
established therefor in the Schedule of Performance, Developer shall
submit to Agency the following Evidence of Financing Commitments:
1. The final loan documents for the Developer's
financing of the acquisition and development of the Site and the
construction of the Site Improvements by a Conventional Construction
Loan (as defined in the Method of Financing, attached hereto and
incorporated herein by reference' as Attachment 5), including but not
limited to- (a) those loan documents that pertain to indebtedness
in connection with the acquisition of the Site; (b) a letter from a
federally-insured financial institution (which need not be the same
financial institution as provides the Conventional Construction Loan)
to the effect that Developer has established a commercial account
with such financial institution; (c) a letter from a federally-
insured financial institution to the effect that Developer and/or its
general Partner has a good and established'relationship with such
financial institution; and (d) such other documents, as Agency, in
its good faith discretion, determines Will assist in the evaluation
of whether Developer is able to construct the Site Improvements and
perform this Agreement in acCordance With the Method of Financing,
Attachment 5, which is incorporated herein by this reference;
2.- Proof of the establishment of Developer's Cash
1101-03 FINAL
68262 2 2 September 14, 1998
Equity Contribution in an amount not less than $850,000. See Method
of Financing, Attachment 5, Section II.
Agency shall approve or reasonably disapprove such Evidence
of Financing Commitments within the times established in the Schedule
of Performance.
C. Initial Agency Loan Disbursement for Land Acquisition
Assistance
(1) Conditions:
As conditions precedent to Developer's receiving the
.
initial Agency Loan disbursement for Land Acquisition Assistance
($778,800.00):
(a) Agency shall have approved Developer's Evidence of
Financing Commitments;
(b)~ Developer shall have obtained a commitment from a
Permitted Mortgagee to fund the remaining costs associated with the
acquisition of the Site;
(c) Developer shall have caused the recordation of a
final parcel map to establish the Site as a legal parcel for sale and ·
financing under the California Subdivision Map Act;
(d) Developer shall have deposited or caused to be
deposited into escrow for the purchase of the Site, all funds
necessary to purchase the Site, except Agency's initial disbursement
($778,800.00) of the Land Acquisition Assistance;
(e) Agency shall have received, from the escrow holder
with respect to Developer's purchase of the Site, such escrow
holder's commitment to abide by Agency's escrow instructions
1101~3 FINAL
~262 2 3 Septem~ 14, 1998
pertaining to"the initial disbursement ($778,800.00) of the Agency's
'Land Acquisition Assistance; which escrow instructions shall specify,
inter alia, that the Agreement to Be Recorded Affecting Real Property
(attached hereto and incorporated herein by reference as Attachment
9) and the Deed of Trust described in Section 6E below shall be
recorded through escrow, immediately following any Permitted Mortgage
and without cost to Agency;
(f) Such escrow holder is prePared.to' have issued to
Agency, on close of escrow, an ALTA lender's title policy showing: '
(1) fee simple title to the Site as vested in Developer, (2) Agency
as an insured lender, and (3) no monetary liens.or encumbrances,
other than a Permitted Mortgage, a lien for taxes not yet due and
payable, and the Deed of Trust described in Section 6E below;
(g) Charles W. Ford and Patricia ~. Ford, as Trustees
of the Ford Family Trust dated September 21, 1984, DeBeikes
Investment Company, a California corporation, Warmington Homes
California, a California corporation, and Agency shall have executed
a Commercial Rehabilitation 'Project Disposition and Development
Agreement ("Commercial DDA"), with respect to the development of
certain property adjacent to the Site;
(h) Agency shall have received written notice from
Warmington Homes California that: (i) Charles W. Ford and Patricia
H. Ford, as Trustees of the Ford Family Trust dated September 21,
1984, and Warmington Homes California, a California corporation, have
executed a Construction Agreement for the performance, by Warmington
Homes California, of general contractor services for the
1101~3 FINAL -
~262 2 4 Septem~r 14, 1998
RehabilitatiOn Project work under the Commercial DDA, and · (ii)
Warmington Homes California shall, provide general contractor services
with respect to the Rehabilitation Project under the Commercial DDA;
and
(i) Agency shall have received from Charles W. Ford and
Patricia H. Ford, both individually and as Trustees of the Ford
Family Trust dated September 21, 1984 (collectively, the
"Releasors"), a written release and indemnity, in form and substance
satisfactory to Agency, pursuant to which the Releasors (A) release
the City and Agency for any and all claims for lost rent or loss of
~oodwill with respect to the units on the Site, and (B) agree to
defend, indemnify, and hold harmless the City and Agency, their
officers and representatives, employees and agents from and against
any Claims, liability, injury, demands, suits, judgments or awards
arising from or related in any manner to the relocation or removal
of any tenant from the Site (whether effected by the City, Agency or
Developer), except, for (1) claims for relocation assistance that
Agency accepts for processing as described in Section 5, and (2) any
claims, liability, injury demands, suits, judgments, or awards based
on Agency's or City's active negligence or wilful misconduct.
(2) Amount and Schedule:
Upon satisfaction of the conditions precedent listed
above in (1), Agency shall deposit into escrow for Developer's
purchase of the Site the amount of seven hundred, seventy-eight
thousand, eight hundred dollars ($778,800.00).
1101-03 FINAL
68262 ~- 5 September 14, 1998
D. Sttbsequent Dfsbursements of A~ency Loan for -Lan~
Acquisition Ass~stanc~
.
(1) Condftions:
As conditions precedent to receiving the remaining
portion (not to exceed $886,700.00) of the Agency loan for Land
Acquisition Assistance;
(a) DevelOper shall have obtained fee simple,
merchantable title to the Site free and clear of any monetary liens
or encumbrances, except a Permitted Mortgage, a lien for taxes not
--yet due and payable, and the Deed of Trust described in Section 6E
below;
(b) Developer shall have submitted and Agency shall
have approved, the Evidence of Financing Commitments pursuant to
Section 6B;
(c) Developer shall have furnished Agency with an ALTA
lender's policy showing: (!) fee simple title to the Site as vested
in Developer, (2) Agency as an insured lender, and (3) no monetary
liens or encumbrances, other than a Permitted Mortgage approved under
SeCtion 6B, a lien for taxes not Yet due and payable, and the Deed
of Trust described in Section 6E below;
(d) Developer shall have furnished to Agency proof of
insurance coverage as provided in Section' 13;
(e)~ Developer shall not then be in default under this
Agreement, the Agreement to Be Recorded Affecting Real Property
(Attachment 9), the Promissory Note described in Section 6E below,
or the Deed of Trust described in Section 6E below;
1101-03 FINAL
68262 ~- 6 September 14, 1998
(f) Developer shall have obtained City land .use
entitlements to construct the Site Improvements;
(g) Developer shall have prepared or caused to be
prepared all plans, drawings and. specifications (the "Plans")
necessary to construct and install the Site Improvements;
(h) Developer shall have delivered to Agency a Payment
Request and all supporting documentation as required by Section IV
of the Method of Financing (Attachment 5), and Agency shall have
approved such Payment Request;
(i) With respect only to the 10% completion retention
described in subparagraph (2) below, Developer shall have requested,
and Agency shall have issued, a certificate of compliance on the
conditions and as described in Section 11 below, and Developer shall
have delivered to Agency a request for release of the completion
retention;
(j) Charles W. Ford and Patricia H. Ford, as Trustees~
of the Ford Family Trust dated September 21, 1984, DeBeikes
Investment Company, a California corporation, Warmington Homes
California, a California corporation, and Agency shall have executed
the Commercial DDA, with respect to the development of certain
property adjacent to the Site;
(k) Agency shall have received written notice from-
Warmington Homes California that: (i) Charles W. Ford and Patricia
H. Ford, as Trustees of the Ford Family Trust dated September.21,
1984, and Warmington Homes California, a California corporation, have
executed a Construction Agreement for the performance, by Warmington
FINAk
1101~3 2 7 Septem~ 14, 1998
~262
Homes Califo~-nia, of general contractor services for . the
Rehabilitation Project. work under the Commercial DDA, and (ii)
Warmington Homes California shall provide general contractor services
with respect to the Rehabilitation Project under the Commercial DDA;
and
(1) Agency shall have received from Charles W. Ford and
Patricia H. Ford, both individually and as Trustees of the Ford
Family Trust dated September 21, 1984 (collectively, the
~Releasors"), a written release and indemnity, in form and substance
--satisfactory to Agency, pursuant to which the Re!easors (A) release
the City and Agency for any and all claims for lost rent or loss of
9oodwill with respect to the units on the Site, and (B) agree to
defend, indemnify, and hold harmless the City and Agency, their
officers and representatives, employees and agents from and against
any claims, liability, injury, demands, suits, judgments or awards
arising from or related in any manner to the relocation or removal
of any tenant from the Site (whether effected by the City, Agency or
Developer), except for (1) claims for relocation assistance that
Agency accepts for processing as described in Section 5, and (2.) any
claims, liability, injury demands, suits, judgments, or awards based
on Agency's or City's active negligence or wilful misconduct.
(2) Amount and Schedule:
Upon satisfaction of the conditions precedent listed
above in (1),. Agency shall distribute the remaining portion (not to
exceed $886,700.00) of the Agency Land Acquisition'Assistance, as
described below:
1101-03 FINAL
68262 2 8 September 14, 1998
('a) An amo~nt equal to 35% of each draw approved by
Developer's lender for Land Development, excludin9 construction of
units, less Agency's 10% completion retention, and not to exceed the
total amount of four hundred ninety-three thousand dollars
($493,000.00) (taking bOth actual disbursements and completion
retentions into account). Of that four hundred ninety-three thousand
dollar ($493,000.00) not-to-exceed amount, an amount equal to at
least twelve thousand dollars ($12,000.00) shall be disbursed with
respect to courp_leted off-site work performed on the property which
·
·
is adjacent to the Site and subject to the Commercial DDA. Such off-
site work is necessitated by the construction of the Project under
this Agreement, and includes but is not limited to, certain
demolition, light standard relocation and refurbishment, vine
planting, and parking lot resurfacing.
(b) An amount equal to 10% of each draw approved by
Developer' s lender for unit construction and marketing, less Agency' s
10% completion retenti'on, but not to exceed a total amount of three
hundred ninety-three thousand, seven hundred dollars ($393,700.00)
(taking both actual disbursements and completion retentions into
account ) .
(c) The specific timing of and specific provisions
related to each disbursement described in (a) and (b) above shall be
as set forth in the Schedule of Performance and Method of Financing.
(3) Maintenance of Records:
Developer agrees to maintain complete and accurate
· accounts, invoices, and records of all monies expended or paid
F~NAL
110~3 29 September 14, 1998
pursuant to contracts for the demolition of the existing structures,
·
removal of asbestos, and the construction of the Site Improvements.
E. Terms of Agency Loan
(1) The Agency Loan which consists of the sum of the
total amounts described in subsections C and D herein, shall be
evidenced by Developer executing and delivering to Agency a
promissory note in the form attached hereto as Attachment 6 and
incorporated herein by this reference, for an amount not to exceed
one million, six hundred sixty-five thousand, five hundred dollars
·
--($1,665,500.00) (the "Promissory Note").-. The Promissory Note shall
be executed concurrently herewith, but no 'interest shall begin to
accrue thereunder unti! such time as the first disbursement has been
made.
(2) The Promissory Note shall be secured by a Deed of
Trust which Developer shall execute and which shall be recorded as
a lien against the Site prior to close of escrow for Developer's
purchase of the Site. Such Deed of Trust shall be subordinate to any
other Permitted Mortgage required for Developer's acquisition or
financing of the Site Improvements. The Deed of Trust is .attached
as Attachment 7 and is incorporated herein by this reference.
(3) The.total amount of the Agency Loan shall accrue
interest at the rate of seven percent (7%) .per year, compounded
monthly, from the date of the firSt disbursement under the Promissory
Note. The principal amount of the Promissory Note'and all accrued
interest shall be due and payable upon January 1, 2001. Providing
a certificate of use and occupancy has been issued for 'the first unit
1101~3 FINAL
68262 3 0 Septem~r 14, 1998
to be sold at-the Site, a complete reconveyance of the Deed of Trust
·
securing the Promissory Note shall be recorded prior to the close of
escrow for the purchase of such first unit by a member of the public.
Prior to January 1, 2001, the principal amount due and owing under
the Promissory Note and all accrued' interest shall be deemed paid,
a~d Agency shall cancel the Promissory Note, if all of Developer's
Site Improvements have been constructed and other obligations under
this Agreement have been satisfied and a Certificate of Compliance
has been issued by Agency.
(4) If pJior to the issuance of a certificate of-use
and occupancy for the first unit to be sold on the Site, Developer
defaults under the terms, of this Agreement, the Promissory Note, the
Deed of Trust, or the Agreement to Be Recorded Affecting Real
Property (Attachment 9), and fails to cure any such default pursuant
to the Provisions of Section 14, herein, the Promissory Note,
including all accrued interest, shall become immediately due and
payable. If after issuance of a certificate of use and occupancy for
the first unit but prior to the issuance of a Certificate of
Compliance, Developer defaults under the terms of this Agreement, the
promissory Note, or the Agreement to Be Recorded Affecting Real
Property, and fails to cure any such default pursuant to Section 14
herein, the Agency may demand immediate paYment of the Promissory
Note, plus all accrued interest. The parties agree, that the remedy
of specific performance is available to Agency to compel payment of
the amount due. In the event Developer does not repay the full
Promissory Note and all accrued interest when demand for such is made
1101-03 FINAL
6S262 3 1 September 14, 1998
by Agency, Agency shall, at that time, have full rights under the
·
Promissory Note and Deed of Trust, and such other rights as may be'
afforded by law or in equity, to ensure repayment.
Section 7 AFFORDABLE UNIT REQUIREMENTS
A. Identification and Sale of Affordable Units
Developer shall identify and set-aside, and Agency shall
approve in its reasonable discretion, eight (8) of the units
identified on the Site Plan, attached hereto as Attachment 8. These
units shall each be sold by Developer to Persons and Families of Low
---'and Moderate Income at a price.not to exceed the Affordable Housing
Cost for Moderate Income Eouseho!ds.
B. Resale Restriction
if, prior to November 22, 2016, the purchaser of an
affordable unit, as identified by Developer and approved by Agency
pursuant to subsection A, above, sells the unit, the purchaser must
sell it to Persons and Families of Low and Moderate Income at a price
not to exceed an Affordable Housing Cost for Moderate Income
~ouseho!ds. If this restriction is not met, then the provisions of
subsection C below shall apply·
C. Alternative to Resale Restriction
If, prior to November 22, 2016, the owner of a moderate
income unit, sells the unit but does not comply with Section 7B,
above (hereinafter the "Seller"), the Seller shall pay to Agency the
"Agency's Share of Equity" earned in the unit during the time the
Seller was the owner of the unit. "Agency's Share of Equity" shall
be five percent (5%) of Equity. "Equity" shall be defined as provided
1101~3 FINAL
~262 3 2 Septem~r 14. 1~8
in Section 10C(2)e. · ·
D. Covenants
In addition to such other covenants required by this
Agreement, Developer shall cause to'be included in the grant deed for
the sale of each Affordable unit the Covenants identified in Section
10C(2)..
E Resale Restriction Agreement and Option to Purchase
In addition to the other requirements with respect to
Affordable Units, as set forth above, Developer shall cause each
buyer of an Affordable Unit~ to execute a Resale Restriction~Agreement
and Option 'to _~mrchase, in the form of Attachment 12, attached hereto
and incorporated herein by reference, and shall cause each such
Resale Restriction Agreement and Option to Purchase to be recorded
through escrow immediately after the deed'conveying the Affordable
Unit to the buyer and before, any deed of trust or other financing
documents affecting the Affordable unit conveyed'.
F. ~odification of Affordable Unit Requirements
At the request of Developer, and in order to make
Federal National Mortgage Association ("FNMA"), United States
Department of ~ousing and Urban Development ("HI/D"), or' similar
financing available to the purchasers of Affordable Units, Agency,
in its sole and absolute discretion, may agree to modify the
requirements of Paragraphs C, D, or E above, on such terms and
conditions as may be set forth in a written notice signed by either
Agency's Executive Director or Agency's Assistant Executive Director.
FINAL
1101-03 3 3 September 14, 1998
68262
Section 8
MORTGAGE CREDIT CERTIFICATE PROGRAM AND FIRST TIME
·
HO~EBUYER LOANS
Providing the Agency has adequate Mortgage Credit Certificate
authority available to it, the Agency shall make available Mortgage
Credit Certificates on a priority, first-come, first-served basis to
purchasers of units who: (1) are first-time home buyers, (2) meet
the requirements for a Mortgage Credit Certificate, as issued by the
United States Internal Revenue Service and the County of Orange, and
(3) qualify as Moderate Income Households. The Agency shall make
·
- -- available its First Time Home Buyer Loan Program on a priority first-
come, first-served basis to purchasers of 'units who: (!) are first-
time homebuyers; (2) meet the requirement of the First Time Home
Buyer Loan Program; and (3) qualify as Persons and Families of Low
and Moderate Income.
Section 9 CONDITIONS FOR CONSTRUCTION
A. Compliance with Laws
Developer shall perform the Land Development and construction
of the Site Improvements in accordance with all applicable federal,
state and local laws, rules and regulations.
B. Time Limit for Construction
All Site Improvements identified in the Scope of Development
must be completed to the satisfaction of the City and Agency and in
compliance with the City code, and applicable City ordinances~ and
public works specifications, as applicable, within the time frames
outlined in the Schedule of Performance. Any extensions of time must
be approved in writing by Agency. .
1101-03 FINAL '
68262 3 4 September 14. 1998
C. Required Licenses and Permits ·
Before commencement of construction, Developer shall, at its
own expense, secure or cause to be secured, any and all licenses and
permits which may be required by the City or any other 9overnmental
agency affected by such construction. Neither Agency nor City shall
require Developer to pay City or Agency plan check and building
permit fees. Developer shall cause plans for permits to be submitted
within the times specified in the Schedule of Performance.
D. One (l~ Year Warranty
.... Developer shali.provide a one-year contractual warranty, in
the form attached hereto as Attachment 13 and incorporated herein by
reference, which shall run to the benefit of Agency or any retail
purchaser of a unit within the Project.
E. Quality of Work and Materials
All work shall be of good quality and all workers shall be
skilled in their~ trades. Unless otherwise specified herein, all
materials shall be new, and shall be of good quality.
F. Clean-up of Site and Adjacent Areas
Developer, its agents, servants, employees or contractors
shall keep the Site and adjacent streets and sidewalks substantially
free from accumulation of waste material and rubbish; and at the
completion of the work, Developer shall remove from the Site all
waste material and rubbish, implements, surplus materials, and
surplus equipment.
FINAL
1101-03 3 5 September 14, 1998
68262
Section 10 USES OF THE SITE
A. ~
Developer covenants and agrees for itself, its successors,
its assigns, and every successor in interest to the Site, or any part
thereof, that during construction and thereafter until November 22,
2016, Developer, its successors and such assigns, shall develop and
devote the Site to the uses specified in the Redevelopment Plan, the
Scope of Development all plans approved by Agency pursuant to this
Agreement, the Agreement to be Recorded Affecting Real Property, and
--any covenants require~ by this Agreement and this Section.. The
Agreement to Be ReCorded Affecting Real Property (Attachment 9).shall
be executed by the parties and recorded through the escrow for
Developer's purchase of the Site, as provided in Section 6C above.
The covenants expressed in this Section 10A are covenants
running with the land, as provided in the Agreement to Be Recorded
Affecting Real Property (Attachment 9). After the Certificate of
Compliance has been recorded, Developer shall have no further
liabilityunder this Section 10A. Developer's liability with respect
to individual units sold shall terminate earlier as provided in
Section 10C.
B. Affordable unit Purchaser Selection Process a~d Criteria
'Within the time established in the Schedule of Performance,
Developer shall present to Agency, for approval in its reasonable
discretion, an affordable unit purchaser 'selection process and
criteria, which criteria shall meet the goals of this Agreement and
the Redevelopment Plan.
1101~3 FINAL
~2 3 6 Sept~r 14, 1998
Developer shall also, within the time established in' the
Schedule of Performance, present to Agency for approval in its
reasonable discretion the initial-sales prices~for the affordable
units identified pursuant to Section 7A above, and inform Agency of
the initial sales price at which similar, non-restricted units will
be offered for sale to the general public. At no time shall any
affordable unit be priced for sale at a price higher than that at
which similar, non-restricted units are then offered for sale to the
..
general public.
C. Anti-soec~!ation Provisions
In order to achieve a stable community of owner-occupied units,
to avoid artificial inflation of prices caused by resales to
speculators and to prevent scarcity caused by vacant homes awaiting
resale by speculators, Developer covenants and agrees to re.~ire that
all the units be owner-occupied.
(1) Non-Restricted Units
For the purposes of implementing this Section 10C, Developer
shall cause to be included in the grant deed for the sale of each
unit, except the affordable units identified by Developer and
approved by Agency pursuant to' Section 7A, above, the following
langUage:
"The grant made by this Deed shall be
conditioned upon and subject to the following
covenants, conditions and restrictions:
a. Grantee shall use and occupy the premises as Grantee's
principal place of residence upon acquisition of' title or
1101-03 FINAL
68262 3 7 September 14. 1998
1101-03
68262
C ·
de
possession, Whichever is earlier, and Grantee shal1 not
transfer any interest in the'premises, nor enter into any
sale of the Premises prior to the close of escrow for the
sale of the Premises to grantee; and
Any transfer of any interest in the premises, or any
contract or lease or sale of the premises prior to the
acquisition of title to the premises by Grantee shall be
void; and
Except as set forth in this Paragraph, Grantee shall use
and occupy t~e premises, as..Grantee's principal Place of
residence immediately upon the close of escrow and shall
continue to so use and occupy the premises for the
duration of Grantee's ownership of the premises. For a
period, of five (5) years from the date of this deed,
Grantee shall not lease or rent the premises for any
reason unless Grantee obtains the prior written consent of
the Tustin Community Redevelopment Agency, which consent
shall not be unreasonably withheld. After such five (5)
year period, Grantee may lease or rent the premises
'without restriction; and
The provisions of this part shall terminate and become
void automatically on November 22, 2016, and ~the same
shall constitute.covenants which shall run with the land
and be binding upon Grantee and Grantee's successor in
interest, and all parties· having, or acquiring any right,
·
title interest in or to the Premises; and
FINAL
3 8 September 14, 1998
e. The-.covenants, conditions and restrictions establishe~ by
this Part are made expressly for the benefit of and shall
inure to the Tustin Community Redevelopment Agency and
the City of Tustin, a municipal corporation."
(2) Affordable Units
For the purposes of implementing this Section 10C for those
units identified by Developer and approved by Agency pursuant to
Section 7A, above, Developer shall cause to be included in the grant
deed for the sale of each unit, the following language:
"The grant made by this Deed shall be
conditioned upon and subject to the following
covenants, conditions and restrictions:
a. Grantee shall use and occupy the premises as Grantee's
principal place of residence upon acquisition of title or
possession, whichever is earlier, and Grantee shall not
transfer any interest in the premises, nor.enter into any
sale of the Premises prior to the close of escrow for the
sale of the Premises to Grantee; and
b. Any transfer of any interest in the premises, or any
contract or lease or sale of the premises prior to the
acquisition of title to the premises by Grantee shall be
void; and
c. Except as set forth in this Paragraph, Grantee shall use
and occupy the premises as Grantee's principal place of
residence immediately upon the close of escrow and shall
continue to so use and occupy the premises for the
1101-03
68262
FINAL
September 14, 1998
1101-03
68262
d.
duration of Grantee's ownership of the premises. Until
November 22, 2016, Grantee shall not lease or rent the
premises for any reason unless Grantee obtains the prior
written consent of the 'Tustin Community Redevelopment
Agency ("Agency"), which shall be granted if the Grantee
demonstrates, to the reasonable satisfaction of Agency,
the proposed rental is at an Affordable Housing Cost and
the proposed tenant is a Person or Family of Low or
Moderate Income. After such time period-, Grantee may
lease-.or r~nt_, the .premises without restriction. An
"Affordable Housing Cost" means a cost that does not
exceed the Affordable Housing Cost for Moderate Income
Households. "Persons and Families of Low and Moderate
Income" means as more particularly defined in Health and
Safety' Code Section 50093, very low income households as
defined in Health and Safety Code Section 50105, lower
income households as defined in Health and Safety Code
Section 50079.5, and persons and families of moderate
income.
If, prior to November 22, 2016, Grantee desires to sell
the premises, Grantee may do so only if, with the prior
written consent of Agency, it sells the premises: (i) at
an Affordable Housing Cost, and (ii) to a transferee who
qualifies as Persons and Families of Low and Moderate
·
Income, and (iii) who agrees in writing to be bound by the
covenants, conditions and restrictions of Paragraphs a
4 0 F~NAL
September 14, 1998
1101-03
68262
e ·
through h hereof. Agency shall consent to the transfer
to a qualified transferee within fifteen (15) business
days after receipt, from Grantee, of: (i) a written
request for Agency's consent to the proposed transfer,
(ii) evidence, reasonably satisfactory to Agency, that the'
proposed sales price qualifies as an Affordable Housing
Cost and the proposed transferee qualifies as described
above, and ( iii ) the proposed transferee ' s written
agreement, in form and substance satisfactory to Agency,
to be bound by the covenants, conditions, and restrictions
of Paragraphs a through h hereof; and
If, prior to November 22, 2016, Grantee desires to sell
the premises without complying with the preceding
paragraph, Grantee may do so only with' the prior written
consent of Agency, on payment to Agency of Agency's Share
of Equity. Agency's share' is five percent (5%) of Equity.
"Equity" means the difference between the sales price at
which Grantee enters into a contract to resell the unit
and the sum of (i) the down payment Grantee orig.inally
paid at t~e time Grantee bought the unit, (ii) normal and
reasonable loan fees and closing costs paid for by Grantee
when originally purchasing, the unit, and estimated to be
paid by Grantee in selling the unit and (iii) the
outstanding balances of (a) any purchase money mortgage (s)
affecting the premises at the time of resale, .and (b) any
mortgage(s), affecting the premises at the time of resale,
FINAL
41 September 14, 1998
1101-03
68262
f ·
used to effectuate a refinance of a purchase ~oney
mortgage (or a prior refinance thereof), to the extent
that the original principal balance of the. refinance
mortgage did not exceed the principal balance due and
owing under the purchase money mortgage (or a prior
refinance thereof), at the time of the'refinance. To the
extent that the original principal balance of any
refinance mortgage exceeded the outstanding principal
balance of the purchase money mortgage (or a prior
refinance thereof) at the time of 'the refinance, the
·
outstanding balance of such refinance mortgage at the time
of resale shall be reduced by the amount of such excess,
for the purpose of the calculation of ~Equity" under this
Paragraph; 'and
The provisions of Paragraphs a through h shall constitute
covenants which shall run with .the land and be binding
upon Grantee and Grantee's successors in interest, and all
parties having, or acquiring any right, title or interest
·
in or to the premises. Any deed purporting to convey
title to the premises ~o a subsequent transferee"shall be
voidable, at the option of Agency, unless it has attached
thereto a written consent, from Agency, to the transfer,
pursuant to either Paragraph d or Paragraph e above. This
remedy is in addition to any other remedies that Agency
possesses at law or in equity to enforce the covenants,
conditions and restrictions set forth herein; and
FINAL
4 2 September 14, 1998
g. The-covenants, conditions and restrictions establishad by
this Part are made expressly for the benefit of and shall
inure 'to Agency.
h. The provisions of Paragraphs a through f shall terminate
automatically and become thereafter void on the earlier to
occur of: (1) November 22, 2016, (2) payment by Grantee of
the Agency's Share of Equity pursuant to ParagraPh e
above, (3) the date on which the premises are conveyed by ·
trUstee's deed pursuant to foreclosure of the deed of
·
trust of any institutional lender whose deed of trust has
first priority over all other deeds of trust affecting the
premises, (4) 'the date of any deed-in-lieu of foreclosure
pursuant to which the' premises are conveyed to any
institutional lender whose, deed of trust has first
priority over all other deeds of trust affecting the
premises, or (5) the date of any assignment, to the
Department of Housing and Urban Development, of both (a)
a note which is (i) payable to any institutional lender
and (ii) secured by a deed of trust that has first
priority over all other deeds of trust affecting the
.premises, and (b) such deed of trust."
The responsibility of Developer to assure compliance with the
deed covenants, conditions and restrictions enumerated above, for the
Non-Restricted and Affordable Units, as applicable, shall be
fulfilled if and when: (a) a grant deed, containing the applicable
covenants enumerated above (Non-Restricted or Affordable), has been
F~NAL
1101~3 4 3 September 14, 1998
68262
recorded with :respect to each of the units sold at the Site, and. (b)
Developer has delivered to Agency, with respect to each of the units
sold at the Site and before close of escrow pertaining to each such
unit, an original acknowledgment, in form and substance satisfactory
to Agency, of such enumerated covenants, conditions and restrictions,
as well as the'covenants, conditions and restrictions contained in
Section 12B, executed by each purchaser of a unit at the Site. Once
all such grant deeds have been recorded, and all such original,
executed acknowledgments have been timely received, it shall be the
responsibility of Agency to enforce such covenants, conditions and
restrictions with respect to each such unit conveyed.
D. Mafntenance of the Site
Developer covenants and'agrees for itself, its successors, its
assigns and every successor in interest to the Site or any part
thereof, that solely at Developer's expense, the Developer shall
'maintain the Site Improvements and keep the site reasonably free from
any debris and waste materials, ·except that this obligation shall
terminate as to individual units, or as to common areas, as the same
are conveyed to the individual homeowners, .or the homeowner's
association, respectively. Developer shall remain responsible for
paying the homeowner's dues for each unsold unit until such time as
the last unit is sold
If at any time Developer fails to maintain, the Site as required
by this subsection D, and .said condition is not corrected after
written notice from City or Agency and a reasonable period of time
not to exceed thirty (30) days from the date of written notice from
FINAk
1101~3 4 4 ~ptem~ 14, 1~8
~262
Agency expireD, either Agency or the City may perform the necessary
landscape or other maintenance and Developer shall pay all costs
incurred for such maintenance.
Section 11 CERTIFICATE OF CO~iPLIANCE
(1) After completion of all Site development and
construction to be completed by the Developer upon the Site in
compliance with the terms of this Agreement and upon satisfaction of
the conditions set forth hereinafter, the Agency shall furnish the
Developer with a Certificate of Compliance upon written request
'--therefor by the Developer.- Such Certificate of Compliance .shall be,
and shall so state, conclusive determination of satisfactory
completion of the Site Improvements required by this Agreement, and
of full compliance with the terms hereof with respect to such Site
Improvements. After the recordation of the Certificate of.
Compliance, any party then owning or thereafter purchasing, leasing,
or otherwise acquiring any interest therein shall not (because of
·
such ownership, purchase, lease or acquisition) incur any obligation
or liability under this Agreement with respect to such Site
Improvements, except that such party shall continue be bound by any
Covenants contained in Sections 10 and 12. Issuance of the
Certificate of Compliance shall not waive any rights or claim that
the Agency may have against any party for latent or patent defects
in design, construction or similar matters under any applicable law,
nor shall it be evidence of satisfaction of any of Developer's
obligations to others, not a party to this Agreement. The
Certificate of Compliance shall be in such form as to permit it to
1101~3 FINAL
~262 4 5 September 14, 1998
be recorded i~ the Office of the county Recorder of Orange County.
(2) The Agency shall not be obligated to issue the
Certificate of Compliance until each of the following has occurred:
a) final inspection of the Site by or on behalf of
the Agency and determination by the Agency that the Site Imp_rovements
have been completed in conformance with this Agreement;
b) issuance of a certificate of substantial
completion by the Architect;
c) issuance of the final certificate of occupancy
by'the City' of Tustin;
d) releases or waivers of all liens or rights to
record liens having been obtained from the general contractor and all
subcontractors having served valid Preliminary 20-day Notices, or the
endorsements to their respective lender's title insurance policies,
and the statutory period.for filing liens having expired;
e) Agency's review and approval of a certified audit
by an independent auditor of the Project Costs actually incurred by
Developer; and
f) determination by Developer and Agency of all
funds owing to the Agency, including, but not limited to, a repayment
of cOst-savings and the Agency's portion of any Excess Profits as set
forth in SeCtion 6 and Attachment 5, Method of Financing.
3) The Agency shall not unreasonably withhold or delay
any Certificate of Compliance. If the Agency refuses or fails to
issue a Certificate of Compliance after written .request from
Developer, Provided each of the conditions established in baragraph
1101~3 4 6 September 14, 1998
~262
2 above has bean satisfied, the Agency shall within ten (10) business
·
days of the written request, provide a written statement which
details the reasons the Agency refused or failed to issue the
Certificate of Compliance. The statement shall also contain a
-.
statement of the actions that Develope~ must take to obtain a
certificate of Compliance.
4) Such Certificate of Compliance 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. Such Certificate of Compliance is not a notice of
completion as referred to in California Civil Code Section 3093.-
Section 12 NON-DISCRI~INATION
A. Ob!ication to Refrain from Discrimination
Developer, covenants by and for itself and any successors in
interest that there shall be no discrimination against or segregation
of any person or'group of persons on account of race, color, creed,
religion, sex, marital status, age, disability, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Site, or any residential uses developed
on the Site, nor shall Developer for itself or any person claiming
under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of homeowners, tenants,
lessees, subtenants, sublessees or vendees of the Site. The foregoing
covenants shall run with the land, as provided in the Agreement to
1101-03 FINAL
68262 4 7 September 14. 1998
Be Recorded A~fecting Real Property.
B. Form of Non-discrimination and Non-Segregation Covenants
Developer shall refrain from restricting the rental, sale or
lease (including sublease) of the Site, or any residential units
developed on the Site, on the basis of race, color, creed, religion,
sex, marital status, age, disability, national origin or ancestry of
any person. Ail deeds, leases or contracts for the sale, lease,
sublease, transfer, use, occupancY, tenure, or enjoyment of the Site
or any portion thereof, including any residential units developed on
.... the Site,' shall-contain or be subject to. substantially the following
non-discrimination or non-segregation covenants:
1. 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: (1) there shall be no
discrimination against or segregation of, any person
or group of persons on account of race, color, creed,
religion, sex, marital status, age, disability,
national origin or ancestry in the sale,, lease,
sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed., and (2)
neither the grantee himself or herself, nor any
person claiming under or through him or her, shall
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of
1101-03 FINAL
68262 4 8 September 14. 1998
1101-03
68262
o
·
tenants, lessees, subtenants, sublessees or vendees
in the land herein conveyed, The foregoing covenants
shall run with the land."
In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through him or her, and this lease is made
and accepted upon and subject to the following
conditions:
"There shall be no discrimination against or
segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital
status, disability, age, ancestry or national origin
in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or
any person claiming under or through him or her,
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of
tenants, lessees, sublessees, subtenants or vendees
in the premises herein leased."
In contracts: "There shall be no discrimination
against or segregation of, any person, or 9roup of
persons on account of race,· color, creed, religion,
sex, marital status, age, disability, ancestry or
FINAL
4 9 Schemer 14, 1998
~ national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
premises, 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 premises. The foregoing provisions shall be
binding upon and shall obligate the contracting party
or parties and any subcontracting party or parties,
or other transferees under this instrument and shall
be covenants running with the land."
The acknowledgment of covenants, conditions and restrictions
required to be delivered, by Developer to Agency, before the close
of escrow for a unit sold at the Site, as required under Section 10C
above, shall also contain an acknowledgment of the covenants,
conditions and restrictions enumerated above.
C. Duration of Covenants
The covenants in this Section 12 shall remain, in effect in
perpetuity.
Section 13 INSURANCE AND INDEMNIFICATION
A. Worker's Compensation' Bodily Injury and Property Damage
Insurance
During the period commencing with the execution of this
Agreement and ending with. a recordation of a Certificate of
1101-03 5 0 September 14. 1998
68262
Compliance, Developer shall furnish to Agency duplicate originals of
appropriate certificates of insurance for the site development and
construction work to be performed by Developer under this Agreement,
as follows:
1. Worker's Compensation Insurance, providing coverage as
required by the California State Worker's Compensation Law.
2. Liability for bodily injury and death.
· 3. Liability for Property Damage, including Builder's
Ail Risk Insurance for the completed value of the
Site Improvements.
Each policy shall have coverage of not less than One
Million Dollars ($1,000,000) combined single limit, and shall be
occurrence-based.
B. Insurance-Endorsements
1. Each such policy of liability insurance shall contain
endorsements providing the following:
a. The City.of Tustin and the Tustin Community
Redevelopment Agency are hereby declared to be additional insureds
under the terms of this policy with respect to this subject property
and Agreement with Agency.
b. This insurance policy is primary insurance and
no insurance held or owned by the City or Agency shall be called upon
to cover a loss under said policy.
1101-03 FINAL
68262 5 '1 September 14. 1998
..
c. Owners Loss Payable giving priority, with respect
to the proceeds and the insurance benefits to be used to restore the
damaged property, to Agency, second only to Developer's Agency-
approved Conventional Construction Loan lender, and stating that the
amount of the Builder's All Risk Insurance policy shall at all times
be sufficient to cover the disbursements under both the Agency-
approved Conventional Construction Loan and the Agency Loan.
d. An endorsement that provides that: "This
insurance policy will not be canceled, limited or non-renewed by the
.
~-insurer until thirty (30) days after receipt by-Agency of a written
notice of such cancellation or reduction in coverage.- ·
e. An endorsement that. provides that: "A waiver of
subrogation is hereby given to the City of Tustin and the City of
Tustin Community Redevelopment Agency as pertains to the terms of all
workers compensation insurance."
f. Insurers must be in good standing in the State
of California, have an agent for service of process in the State of
California, and have a Best's Key Rating of at least A, VII.
2. As evidence of such insurance, Developer shall deliver
to Agency, within ten (10) business.days following the effective date
of this Agreement, an insurance certificate in the form of Attachment
11, attached hereto and incorporated herein by reference.
C. Indemnification
Upon execution of this Agreement, notwithstanding Developer's
insurance obligationS, and excepting any claims, liability, injury
demands, suits, judgments, or awards based on' Agency's or City's
1101~3 FINAL'
~262 52
active negligence or wilful misconduct, Developer shall defend,
indemnify, and hold harmless the City and Agency, their officers and
representatives, employees and agents from and against any claims,
liability, injury, demands, suits, judgments or awards arisin9 from
or related 'ih any manner to (i) the'activities of DeVeloper under
this Agreement, (ii) the incurrin9 of costs and expenses by
Developer, (iii) the acquisition of the Site by Developer, (iv) the
disposition of the Site pursuant to any future sales, leases and/or
-- rental agreements, (v) the relocation or removal of any tenant from
the Site (whether effected by the City, Agency or Developer) except
claims for relocation assistance that Agency accepts for processing
as described in Section 5, or (vi) the construction and demolition
activity undertaken by Developer for the redevelopment of the Site.
This indemnity shall apply to economic losses, personal injuries or
property damage suffered by City or Agency, their respective
officers, employees or agents. This indemnity shall not apply to
Agency's breach or default of any of the terms, conditions or
covenants of this Agreement° To the best bf Agency's knowledge,
there have been no tort claims filed under the California Tort Claims
Act (Government Code Section.810 ~-Y-_~.) against either Agency or
city arising out of the relocation or removal of any tenant from the
Site.
FINAL
1101-03 5 3 September 14, 1998
68262
Section 14 ' DEFAULTS, REMEDIES AND TERM~TION
·
A. ~
Each of the following shall constitute a Default under this
Agreement:
(1) Failure or delay by a party to perform any term or
provision of this Agreement within the time provided herein or in the
Schedule of Performance, as such times may be extended pursuant to
this Agreement.
(2) Failure of Developer to'develop the Site substantially
-- in accordance with the Scope of Development plans, and. construction
drawings and any revisions thereto approved by Agency..
(3) Breach of any covenant, warranty, or agreement
contained or incorporated in this Agreement.
The party who fails to perform or delays performance of any term
Or provision of this Agreement must immediately commence to cure,
correct' or remedy such failure and shall complete such cure,
correction or remedy with all due diligence.
B. ~
If an event of Default under this Agreement occurs, the injured
party shall give written notice (a "Default Notice") of the Default
--
to the party in default, specifying the nature of the default.
Failure'or delay in giving such notice shall not constitute a waiver
of any default, nor shall it change the time of default, nor shall
it operate as a waiver of any rights or remedies of the injured
party;, but the injured party shall have no right to exercise any
remedy hereunder without delivering the Default Notice as provided
1101~3 ' 5 4 ' Sept~r 14, 1998
~2~
herein. Delays by either party in asserting any of its rights and
remedies shall not deprive either party of its right to institute and
maintain any actions or proceedings which it may deem.necessary to
protect, assert or enforce any such rights or remedies.
C. Cure Period
With respect to defaults or events for which a specific cure
period is provided elsewhere in this Agreement, the specific cure
period in that Section'shall be applicable in lieu of cure periods
-- provided in this subsection C. In no event shall the cure period set
forth in this subsection C be added to any other cure period set
forth in this Agreement.
The injured party shall have no right to exercise a right or
remedy hereunder unless the subject Default continues uncured for a
period of thirty (30) days after the delivery of the Default Notice,
or, where the default is of a nature which cannot be cured within
such thirty (30) day period, the defaulting party fails to commence
such cure within thirty (.30) day period or fails to proceed
diligently to complete the same~ within a reasonable period of time,
..
as determined by the non-defaulting party, in its reasonable
discretion. A Default for failure to pay a sum of money is a default
which can be cured within thirty (30) days. If the default is not
cured within the time periods specified above, the' non-defaulting
party, at its option, may institute an action for specific
performance of the terms of .this Agreement or pursue such Other
r±ghts and remedies as it may have.
FINAL
1101-03 5 5 September 14, 1998
68262
D. Rights and Remedies .
Upon the occurrence of.an event of Default and the expiration
of the applicable cure period provided herein or by law, the .injured
party shall have all rights and remedies against the defaulting party
as may be available at law or in equity, to cure, correct or remedy
·
any Default, to obtain specific performance, to recover damages for
any Default, or to obtain any other remedy consistent with the
purpose of this Agreement, and when Agency is the injured party,
Agency shall have the right to apply any and/or all of the 10%
--completion retention amounts it then holds, as described in Section
6D, to cure such default. Such rights and remedies are cumulative,
and except with respect to rights and remedies expressly declared to
be exclusive in this Agreement,.the exercise of one or more of such
rights and remedies shall not preclude the exercise, at the same or
different times, of any other rights or remedies for the same Default
or any other Default by the defaulting party.
E. Leaa! Actions
(1) venue
All legal actions must be instituted in the Superior Court
of the County of Orange, 'State of California, or in any other
appropriate court of that county, or in the Federal District Court
in the Central District of California, Santa Aha branch.
(2) Service of'Process
Service of process on Agency shall be made by personal
service upon the Executive Director of Agency, or in such manner as
may be provided by law.
1101-03 FINAL
68262 5 (~ September 14, 1998
Service of process on Developer shall be made by personal
service upon an officer of Developer or in such manner as may be
provided by law, whether made within or without the State of
California.
(3) ApPlicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
F. R~ght~ of Termination
(1) Termination by Develooer
In addition to other remedies set forth in this Agreement,
and subject to the telnm, s and conditions herein, Developer shall have
the right to terminate this Agreement prior to close of escrow for
Developer's Purchase of the Site if:
(a) Developer reasonably determines the conditions
of the Site are not suitable for the development required by this
Agreement;
(b) Developer, despite reasonable efforts to do so,
is unable to obtain financing for the ProjeCt.
Upon termination by Developer, Developer shall have no
further obligation to Agency except that: (a) Developer shall be
obligated to repay or pay Agency for any Relocation Assistance paid
by Agency, or obligated to be paid by Agency; and (b) Developer's
indemnity obligations in this Agreement shall survive termination.
1101-03 FINAL
68262 5 7 September 1~,, 1998
6S262
(2)" Termination by Agency ·
·
·
In addition to other remedies set forth in thi~ Agreement,
Agency shall have the right to terminate this Agreement if:
(a) Agency at its option reasonably determines the
conditions of the Site are not suitable for the development required.
by this Agreement;
(b) Agency delivers a Default Notice pursuant to
subsection B, above, and any pertinent cure period applicable
pursuant to subsection C, above, with respect thereto has'expired;'
- (c) Deve!oper--(orany successor and assigns) assi~s
or attempts-to assign this Agreement or any right therein or the Site
(or any Portion thereof), contrary to the provisions of this
Agreement;
(d) Developer fails to submit plans, drawings and
related documents for the Site, as required by this Agreement by the
date respectively provided for in the Schedule of Performance;
(e) Developer fails, in violation of this Agreement,
to perform any of its obligations hereunder;
(f) Charles W. Ford and Patricia H. Ford, as Trustees
of the Ford Family Trust dated September 21, 1984, DeBeikes
Investment Company, a California corporation, Warmington Homes
California, a California corporation, and'. Agency have not, within
five (5) business days of the effective date of this Agreement,
executed the Commercial DDA described in Section 6C above;
(g) Charles W. Ford and Patricia H. Ford, as Trustees
of the 'Ford Family Trust dated September 21, 1984, and Warmington
1101~3 58 FINAL
September 14, 1~8
Homes California, a California corporation, have not, within thirty
,
(30) calendar days of the effective date of the Commercial DDA,
executed a Construction Agreement for the performance, by Warmington
Homes California, of general contractor services for the
Rehabilitation Project work under the Commercial DDA; or
(h) Before close of escrow for Developer's purchase
of the Site, the Commercial DDA is terminated, pursuant to its terms.
·
G. Rights and~Remedies Are Cumulative
Except as otherwise expressly stated in this Agreement, the
-- rights and remedies of the parties are cumulative, and the exercise
by any party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same Default or any other Default
by any other party.
H. Effect of~ Violation of the Terms and Provisions of this
A~reement
·
Agency is deemed the beneficiary of the terms and provisions of
this Agreement and of the covenants running with the land, for and
in its own right and for the purposes of protecting the interests of
the community and other parties, public or private, in whose favor
and for whose benefit this Agreement and the covenants running with
the land have been provided. The Agreement and the covenants shall
run in favor of Agency, without regard to whether Agency has been,
remains, or is owner of any land or interest there in the Site or in
the Project Area. Agency shall have the right, if the Agreement or
covenants are breached, to exercise all rights and remedies, and to
1101~3 ' FINAL
~2 5 9 September 14, 1998
maintain any actions or suits at law or in equity or other proper
proceedings to enforce the curing of such breaches to which it or any
other beneficiaries of this Agreement and covenants may be entitled.
Section 15 GENERAL PROVISIONS
A. Disputes to be Determined by Agency
Any disagreement arising out of this Agreement or from breach
thereof, shall be submitted to Agency for determination. Agency
shall make its determination within thirty (30) days after the matter
---is submitted to Agency for determination. .It is-mutually agreed that
the determination shall be a' condition precedent to any right of
legal action that either party may have against the other.
B. Local, state and Federal Laws
Developer shall carryout all Land Development obligations, all
construction of the Site Improvements, and all responsibilities under
this Agreement in conformity with all applicable local, state and
federal laws, including all applicable federal immigration laws and
federal and state labor standards.
C. Taxes~ Assessments! Encumbrances and Liens
Developer shall pay when due all real estate taxes and
assessments, and other encumbrances or liens, assessed or levied on
or against the Site' and each portion thereof. Nothing herein
contained shall be deemed to prohibit Developer from contesting the
validity Or amounts of any tax assessment, encumbrance or lien, nor
to limit the remedies available to the Developer in respect thereto.
1101-03 FINAL
68262 6 0 September 14. 1998
D. Rights of Access.
·
Representatives of A~ency and the City shall have the reasonable
right of access to the Site or any portion thereof without charges
or fees durin9 the period of this ANreement for the purpose of
determinin9 compliance with plans approved under this Agreement or
the provisions of the Redevelopment Plan, includin9 but not limited
to the inspection of work bein9 performed in constructin9 the Site
Improvements.
E. Conditions~ Covenants and Restrictions
Developer shall cause the provisions regarding~maintenance,
anti-discrimination, and rights of access to be included in the
Conditions, Covenants and Restrictions (CC&R's) for the Project,
which CC&_R's shall be presented to Agency for its reasonable approval
within the time established in the Schedule of Performance.
F. Notices~ Demands and Communications Between the Parties
Written notices, demands and communications between Agency and
Developer shall be.sufficiently 9iven if (i) delivered by hand (and
a receipt therefor is obtained Or is refused to be ~iven), (ii)
· .
·
dispatched by registered or certified mail, postage Prepaid, return
receipt requested, or (iii) delivered by private delivery service
(and a receipt therefor is obtained or is refused to be 9iven), to
the principal offices of Agency and/or Developer, as applicable.
Such written notices, demands and communications may be sent in the
same manner to such other addresses as either party may from time to
time designate by mail as provided in this Section 15F.
Any written notice, demand or communication shall be deemed
1101~3 FINAL
~262 6 1 Septem~r 14, 1998
received immediately if delivered by hand, shall be deemed rece%ved
on the tenth day from the date it is postmarked if delivered by
registered mail, shall be deemed received on date of delivery as
shown on the return receipt if delivered by certified mail, and shall
be deemed received as of the date of delivery shown in the records
of the private delivery service if delivered by such private delivery
service.
Such notices shall be addressed and delivered to:
A_~_~I~: William A. ~uston, Executive Director
Tustin Community Redevelopment Agency
300 Centennial Way
Tustin, CA 92780
Developer: Warmington Old Town Associates, L.P.
3090 Pullman Street, Suite
Costa Mesa
California 92626
G. Conflicts of Interest
No member, official or employee of Agency shall have any
personal interest, direct or indirect, in this Agreement, nor Shall
any member, official or employee participate in any decision relating
to the Agreement which affects his personal interests or the
interests of any corporation, partnership or association in which he
is directly or indirectly interested.
Developer warrants that it has not paid or given, and will not
pay or give, any third party any money or other consideration for
obtaining this Agreement.
~. ~nforced Delay~ E~ten~ion of T~me~ of Performance
In addition to specific provisions of this Agreement,
performance by either-party hereunder shall not be deemed .to be in
1101~3 FINAL
~2 ~ ~ Se~ember 14, 1998
default, and all performance and other dates specified in this
Agreement and the Attachments hereto shall be extended, where delays
or defaults are due to: war; insurrection; strikes; lockouts; riots;
floods; earthquakes; fires; casualties; acts of God; acts of the
public enemy; epidemics; quarantine restrictions; freight embargoes;
lack of transportation; governmental restrictions or priority;
litigation by third parties challenging the validity of this
Agreement, or Developer's rights and obligations under this
-.-Agreement; unusually severe weather; inability to secure, or delay
in securing, permits (if the inability to secure, or delay in
securing, permits is not the fault of Developer), necessary labor,
materials or tools; delays .of any cOntractor, subcontractor or
supplier; acts or omissions of the other party; acts or failures to
act of the City of Tustin or any other public or governmental agency
or entity (other than the acts or failures to act of Agency which
shall not excuse performance by Agency); or any other causes beyond
the control or without the fault of the'party claiming an extension
-of time to perform. Notwithstanding anything to the contrary in this
Agreement, an extension of time due to any such cause shail be for
the period of the enforced delay ,. if notice, by the party claiming
such extension is sent to the other party within (1) thirty (30)
calendar days of the commencement of the cause, when it is then
reasonably foreseeable that'a delay may result (e.g., on learning of
a labor strike), or (2) thirty (30) business days of the commencement
of the delay, when it was not reasonably foreseeable that a delay
FINAL
1101-03 63 September14.1998
68262
would result (e.g., sudden flooding). Times of performance under
this Agreement may also be extended in writing by the mutual
agreement of Agency and Developer.
I. Nonliability of Officials and Employees of Agency
No member, official or employee of Agency shall be personally
liable to Developer, or any successor in interest, in the event of
any default or breach by Agency or for any amount which may. become
due to Developer or its successors, or on-any obligations under the
-terms of this Agreement. -
J. Insoect/on of Book~ and Records
Agency has and shall have the right at all reasonable times,
upon no less than ten (10) days written notice, to inspect the books
and records of Developer pertaining to the Site as pertinent to the
purposes of this Agreement. Developer also has the right at all
reasonable times, upon no less than two (2) days written notice to
inspect the books and records of Agency pertaining to the Site as
pertinent to the purposes of this Agreement.
Section 16 SPECIAL PROVISIONS
A.- Successors In Interest
For the term of this Agreement, the terms, covenants, conditions
and restrictions of this Agreement shall extend to and shall be
binding upon and inure .to the benefit of the heirs, executors,
administrators, successors and assigns of the parties, except as
provided for in this Agreement.
1101-03 FINAL
68262 6 4: September 14. 1998
Section 17 .. ENTIRE AGREEMENT, AMENDMENTS AND-W~RS
This Agreement shall be executed in two (2) duplicate originals,
each of which is deemed to be an original. This Agreement includes
66 pages and 13 Attachments, which constitutes the entire
understanding 'and agreement of the parties.
This Agreement integrates all of the terms and conditions
mentioned herein or. incidental hereto, and supersedes all
negotiations or previous agreements between the parties or their
predecessors in interest with respect to all or any part of the
subject matter hereof.-
AiI waivers of the provisions of this Agreement must be in
writing by the appropriate'authorities of Agency, Developer, and all
amendments hereto must be in writing by the appropriate authorities
of Agency, Developer.
In any circumstance where, under this Agreement, either party
is required to approve or disapprove any matter, approval shall not
be unreasonably withheld.
Section 18 EFFECT OF BREACH UNDER THE COM/fERCIAL DDA
Notwithstanding any provision of Sections 6 or 14 above to the
contrary, once escrow has closed for Developer's purchase of the
Site, Agency shall neither terminate this Agreement due to an Owner
or Developer default under the Commercial DDA, nor condition further
disbursements of Agency Loan proceeds on the status 'of the Commercial
DDA..
1101-03 FINAL
68262 6 5 September 14, 1998
Section 19 EFFECTIVE DATE OF THE AGREEMENT
·
The effective date of this Agreement shall be the date when it
shall have been signed by Agency.
iN WITNESS WHEREOF, Agency and Developer have signed this
Agreement on the respective dates set forth below.
Dated.
."Agency"
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California community
redevelopment agency
APPROVED AS TO FORM:
By:
Lois E. Jeffrey,
Agency Counsel
ATTEST:
Recording Secretary
Dated:
1101-03
68262
By:
.Thomas R._ Saltarelli, Chairman
"Deve loper"
WARMINGTON OLD TOWN ASSOCIATES, L.P.,
a California limited partnership
By: .W a r m i n g t on H o m e s
California, a California
c °
Brian L. Sinderhoff, prudent,
Southern California Division
FINAL
6 6 September 14, 1998
MAP OF PROPOSED PARCELS
Attachment I to DDA
i ii i
i ·
·
MAP OF PROPOSED PARCELS
REDEVELOPMENT PURPOSES .....
251
~. -
Attachment I to DDA.
I of 1
LEGAL DESCRIPTION
Attachment 2 to DDA
1101-03
66526 I
LEGAL DESC. KII~ION
PI~ODOSED ?ARCEI-$ FOR
CITY OF TUSTIN RY. DEVELOPME~ AGENCY
PKRCE~ 1
That portion 0£ fl~at tand in the City of Tustin. County of Orange. State or Caliromia. as
de.tcribcd in Gram: Deed ru-cnrded January 0_7. 1989. ai Insu'ument No. 89-049195, Official
Records of said county, described as follcr~:
B=ginning.ata point in thc Southeast line of saicl land, distant North .t0'40'18~' East ] 16.26 feel
along ~aid 5uuth~st linc [rom the most $our. herly comer of said ]~nct; r. bence North
west 27'1.61 feet, :o the Westerly bounder7 of said land; r. hcncc ~lon§ Said westerly boundary
and the Northerly and .C, outhcasterly boundaries of said land the fnlk~win~ courses: North
,
0'32'57' East _~45.41 fe~t, 5ou~ 89'25'52' F.a.~t 558.fi5 lhet to a tangent curve concave Southerly
h~,ing a radius ol' 88.00 feet. Easterl)' 47.97 feet along said cUrVe through ~ ccntt-~I ~nglc of
·
·
31'13'56' to a rm'crse curt'e concave Northerly having a r-adim of 50.00 l~et, Northeasterly
74.8B feet along said cu~ through a central angle of B5'48'08" co a non-tangent curve c.~ncave
Northerly having ~ radiu~ of 500.00 l~cc. a radial line to the beginning of said cur~'e bears
South ~t*08'41" Fast. Northeasu:rly 105.:76 feet along said curve through = central angle of
_'20'06'11" to · reverse :urt-e concave Southeasterly ha,.'ing a radiu~ of 2~t0.00 feet, Nor~hea.~teriy
5.61 feet along said curve through a cenu~ angle of 1'20'25". non-:angent from said
South B9'25'5°-' Fast I:5.62 feet, and South 40'40'18" We_st 59'/.'/1 feet to the Point: o[7 Bcg-in-
P,~RCE~ 2
Th'at portion ol'l~nd in the Ci.ry of Tusdn, County o£ O,--angz:, St.-tee o£ California. as described
in Gr~nt Dccd recorded January 2'/, 1989, ai Instrument No. 89-049195, OfiSdal Records of
said County, described ars follows:
Attachment 2 to DDA
july 21. 1998
Page 1 nf_~
v.'.O. 1 o?-f15
N&.~ Legal Nt~.
P~pa~:d By: J. 5tablein
Ch'd ~y: ~
. .
1 of 3
-.
Beginning at t)xe mos£ Southerly comer of ~a~d land; thence aJong the Southeast boundm-v of
·
~aid ]and North 40'40'18~ East 116.~8 £ttt; thence Nor~ 47'59'01' Wt~t ~74.81 fttt to ~t
W~stcr~y ~da~ of ~aid l~d; ~ce ~on~ ~id ~esterly ~dz~y und th~
bo~d~ u[ said ]~d ~e fol]ow~g coups: ~ou~ 0'32'5~ Wes: 7.35 fcct. Sou~ 40'3~'2G"
Wc~t 110.]9 fee~ Sou~ 47'4.5'13" ~t 249.80 fee~ and S~th 4~21'34" ~st 20.00 feet ~o the
Point of Be~lnin~.
A.~ :~hown on Exhibit "B', at~ach~d hu---reto ~.nd by this rcfcrcncc madc a part hcreof.
RoD' S~flli:u:~s, L$. No. §§54
License F. xpire~: December S 1, 1999
Attachment 2 to DDA
July _~ 1.1998
Pagc 2 a£
~'.0. 1
IIAA L=i~a/No.
Ih'c-pared B)': J. Stabl~m
Ck'd B~: ~ %~lli~n~.
2 of 3
PARCEL I
· P.O.B.
PARCEL 1
PARer. L ~
·
~:\ ~ 07- 251%, LD\ ~,553\ S~T01 .DWC
Attachment 2 to DDA
PROPOSED PARCELS
FOR REDEVELOPMENT PURPOSES
CI'~ OF ~H, CI:3UNT~ OF' DI:JlAN~F_ STATE OF
3 of. 3
' SCOPE OF DEVELOPMENT "
Attachment 3 to DDA
I101-03
66526_1
Aug-12-98 11:26A P-02
ATTACiLMENT NO. 3
SCOPE OF DEVELOPMEN'I'
WARMINGTON OLD TOWN ASSOCIATES PROJECT
HO'I'E: References herein to "the Agreement" and "the DDA" mcan thc
Disposition and Development Agreement of which this Attaekment No. 3 is a
part; re£er=~ces to "Attachments" mean the Attachments to the' DDA unless
otherwise spccilicd. Except a.s otherwise noted, ail capitalized terms defined
within the DDA and the Attachmen/s shall retain thc meanings as defin~ in thc
Disposition and Development A~e,,.,'mcnt.
I. GENE~ DESCRIPTION
·
The Site is delineated on th= Map of Proposed Parcels (Attachment No. 1) as Parcel 1 and
~ Parcel 1 o.rthc Legal Description (Altachment No. 2) to the Agreement.
DEVELOPER LM~PR OVEMENTS
A. Definition o~' Site Improvements
Thc Dcvcloper shal] construct or cause 'to be constructed on file Site all of the Sitc
l'mprovcment~, including the Private lmprovemenLs and 'Public Improvements sci Ibrth in this
Scope of l)evelopm~.'nt as approved by the Ag~cy, Planning Commission, and City Council.
The Site Improvements shall generally consist of the following:
lo
Improvement of the Site with a 38-unit detached, single fen'oily, owner occupied,
residential subdivision pursuant to Agency approval and City el' Tustin approval.,;
through the Tustin Planning con,mission and Tustin City Council. Resolutions of
approval sh~l be obtained within the times established in the Schedfilc of
Pcrtbm~ance Attachment No. 4.
9
Compliance with all "Conditions of Approval" stipulated by an applicable
governmental agency having jurisdiction, ~ncluding, but not limitgd to, ~e Planning
Conunission and City Council approvals identified above.
3. Compliance with all provisions of thc Disposition and Development Agreement.
B. Schedule of' Pert'ormm~ce
The Developer shall commence anti complete thc Site lmprovement,~ by thc respective Limes .
established theretbr in the Schedule of Performance (Attachment No.4).
.-1-
Aug-12-98 11:27A
i:'. 03
1I. D.15VELOPMENT STANDARDS
The Site Improvements shall be de.signed and developed as a planhcd development in which thc
residential dwellings will have a first-class architectural quality and character, bofll individually
m~d in the context of thc surrounding 'Fu.~fin Old Town District. All public spaces, open spaces
and individual front yard are~ shall be designed,, landscaped and developed with the same
degree of quality. Particular attention shall be paid to enhancing pedestrian activities,
minimizing mass, scale and bulk, and to thc selection of color and materials. The Agency and
thc Developer will cooperate and direct their consultants, architects and/or engineers to
cooperate so as to ensure the continuity and coordination necessary for the proper and timely
completion oft he development of thc Site.
Ali of' thc Site Improvements shall conform to all applicable federal, state and county codes and
regulations, the requirements of the Town Center Redcvcl.opmcnt Plan and the 'l'usfin City Codes
and the conditions o£ City resolufion.q'..
The Developer ackmowlcdges the responsibility to obtain any approvals required-by any
governmental agency,-utility or other agency, including thc City, which has jurisdiction over all
or any portion of the Site Improvements. All "Conditions of Approval" stipulated by an
applicable jurisdiction shall be incorporated into thc final design and noted in the construction
documents by thc architects, engineers and other consultants. Thc Developer shall make ali
necessary applications by such time(s) as will be consistent with the timely commencement and
completion of various portions of the off-site and on-site improvements by the re.,pective times
established therefor by the Schedule of Performance (Atlachment No. 4 of this Agreement).
I11. SALES REQUIREMENTS
Thc Developer is aware that Agency's participation in this Agreement is Io provide
financial assistance to Developer: l) to demolish and eliminate the existing improvements on thc
Site, which have been deemed a blighting influence in the Project Are. a; 2) to provide for thc
development of. 38 detached, owner occupied, single family, residential units; and 3) to record
covenant~ requiring the maintenance of affordability oF right (8) owner occupied single family
units to households not exceeding the moderate-income limits as defined by the California
Health and Safety Code for the life of the Redevelopment Plan.
To accomplish such purposes, the Developer covenants and promises to conduct such
marketing and sales, and provide resale restrictions, in a manner con,stent and in full
· conformance with the provisions of the Agreement. .qpecilically, Developer shall sell eight ($)
single-family units to households not exceeding the moderate-income limits as defined pursuant
to the provisions of'the Agreement.
1. As to the eight (8) single-family units to be sold to not ~water than moderate-
income households, Developer shall not assess, charge or receive a commission or other
'compensation from a buyer, which compensation is intended to compensate Developer for his
cost or marketing for sale, including advertising of such malts.
-2-
P. 04
2. Thc above rcfcrcnced eight (8) single-family units to be sold to not greatc-r than.
modcratc-income houscholds shall bc sold con.~slent with the requircmcnts of thc California
Community Redevelopment Law as such applies to the' provision of' affordable hou.~;ng,
including, but not limited to, quali~'ying buyer's incomc levels and provisions for rcsalc
restrictions which ~sure that such units' resale is sccomplishcd in a manner which maintains the
..
unit as an affordable unit.
3. The Developer agrees that a condition to the close o£ any escrow that will convey
title to s qualified buyer shall bc thc receipt by thc ,Escww Ol'ficcr of a writt~ approve by thc
Ag~cy, within t~vo (2) working days of rcccipt by Agency of pre-approvcd standard l'orm
escrow instructions, a standard form dccd containing thc anti-speculation and non-discrimination
covcnsnL~ re, quircd by the DDA~ a standard form Resale Restriction Agr~ment and Option to
Purchase (Attachment 12 to thc DDA), and thc original standard fon~ buyer's acknowledge, mcat
as'dcscribed in Se, ctions 10C and l'2B of'the DDA, and Agency cert/fics that thc proposed
convcyanc~ conforms to thc.DDA. . ..
4. Marketing Program. The DeWlopcr shall b'e solely responsible for thc marketing
of' the residential units, and any and all Costs related specifically to thc marketing o£ the eight
units to be sold to not greater than mr~deratc-income households.
IV.
CHA.NGES TO FJ. NAL CONSTKUCTION DR2LWINGS AND REI.ATED
DOCUMENTS
If thc Developer desires to make any changes in the Final Construction Drawings mad
Related Documents approved by thc Ag~cy, Plannh~g Commission and the City Council, thc
Developer shall submit the proposed changc(s) to the Agency and City for approval. Such
changes shall be reviewed in the context o£ the purpose o£ thc DDA and applicable provisions of
tt~¢ City of Tustin Municipal Code and 5hall be approved or disapproved by the Agency and
City.
-3-
SCHEDULE OF PERFORMANCE
Attachment 4 to DDA
1101-03
ATTACH]VIENT NO. ~
SCHED~E OF PERFORMANCE
WARa..~GTON OLD TOWN ASSOCIATES PROYECT
NOTE: References herein to "the Agreement"'and "the DDA'' mean the
Disposition and Development Agreement of which this Attachment No. 4 is a
part; references to "Attachments" mean the Attachments to the DDA unless
otherwise specified. Except as otherwise noted, all capitalized terms defined
within the DDA and the Attachments shall retain the meanings as defined in the
Disposition and Development Agreement.
Action Timin~
1. Execution of A~eement
A. Developer delivers executed DDA
Attachments to Escrow for the purchase of
the Site.
B. Agency executes DDA and
Attachments.
C. Agency delivers appropriate DDA
Attachments to Escrow for recordation.
2. Entitlement Approvals
A. Developer submits complete
Tentative Parcel Map Application (for
financing purposes only) with related
drawings and documents to the City of
Tustin.
B. Developer submits complete Final
Parcel Map Application (for financing
purposes only) With related drawings and
documents to the City ofTustin.
Within 15 calendar days following action by
Agency on the DDA.
Within 5 working days following Developer's
submission of executed DDA Attachments and
satisfaction of conditions precedent pursuant to
Section 6B of the DDA.
Within 10 working days following execution of
the DDA by Agency.
Completed.
Within 30 calendar days following action by
Agency on the DDA.
C. City approves Final Parcel Map (for
financing purposes only).
D. 'Developer causes recordation of
Final Parcel Map (for financing purposes
only).
E. Developer'submits complete
applications with Desi~ma Development
Drawings and related documents to the
City for all necessary entitlement
approvals, including subdiv/sion map
approvals.
F. City approves or disapproves all
necessary entitlement approvals.
G. Developer causes the recordation of
the Final Subdivision Tract Map.
3. Conditions Precedent to A~enc¥
Assistance
A. For Initial Land Acquisition
Assistance Disbursement ($778,800):
(i) Developer submits to Agency for
review and approval Evidence of Financing
pursuant to Section 6B of the DDA.
(ii) Agency approves or disapproves
Developer's Evidence of Financing.
(iii). Developer submits verification that
all funds necessary for purchase of the Site
have been deposited in escrow.
Within 90 calendar days following Developer's
complete submission, and prior to close of
escrow.
At least 5 working days prior to close of escrow
for purchase of the Site.
Within 30 calendar days following action by
Agency on the DDA, and prior to close of
escrow.
Within 60 calendar days following City's
notification to Developer that all necessary
entitlement applications are 'Complete.
Within 5 working days following approval by
City.
Within 30 calendar days following action by
Agency on the DDA, or fifteen (15) working .
days prior to close of escrow for the purchase of
the Site,'whichever comes first.
Within 10 working days following Developer
submission.
At least 5 working days prior to close of escrow
for purchase of the Site.
-2-
B. For Subsequent L~md Acquisition
Assistance Disbursements: Developer
provides Agency with evidence of all
insurance required pursuant to Section 13
of the DDA, and satisfaction of all
conditions pursuant to Section 6D of thc
DDA.
Within 30 calendar days following Agency's
execution of the DDA, or ten (10) working days
prior to start of construction for Site
Improvements, whichever is later.
4. Buildin~ Permits.
A. Developer submits application and
plans for clearance and demohtion of the
Site.
B. City issues permits for clearance and
demolition of the Site.
C. Developer submits Final
COnstruction Drawings and Related
Documents to Community Development
Departm. ent for issuance of Building
Permits.
D. Developer obtains building permits
consistent with any approved phasing.
5. A_oencv AssistanCe.
A. The Agency deposits into escrow
for purchase of the Site the Agency's
Initial LandAcquisition Assistance
Disbursement ($788,800) pursuant to
Section 6C of the DDA.
B. The Agency approves or disapproves
disbursement of Agency's Subsequent
Land Acquisition Assistance amounts
pursuant to the Method of Financing.
Within 90 calendar days following the
execution of the DDA.
Within 10 working days following Developer's
submission, but not prior to Site Acquisition.
Within 120 calendar days following the
execution of the DDA.
Within 7 working days following approval by
Community Development Department.
Within 5 wOrking days following Agency' s
approval of performance by Developer of the
conditions precedent pursuant to Section 6C of
the DDA, and prior to the close of escrow for
the purchase of the Site.
Within 10 working days following Developer's
submission of Payment Request as described in
the Method of Financing Attachment 5 (Section
-3- ·
6. Construction of the S"ite Improvements. '
A. Developer commences Demolition
and Clearance of the Site.
B. Developer completes Demolition and
Clearance of the Site.
C. Developer commences construction
of the model homes and sales office.
D. Developer completes construction of
the models and sales offices.
E. Developer commences construction
of the remaining Site Improvements.
F. Developer completes construction of
the remaining Site Improvements.
Within 10 working days following issuance of
Demolition Permits by City.
Within 90 calendar days following issuance of
demolition permits by City.
Within 10 working days following issuance of
Building Permits and Related Approvals by the
City.
Within 120 calendar days following issuance of
Building Permits and Related Approvals by the
City.
Within eight (8) months following the
execution of the DDA.
Within twenty-four (24) months following the
execution of the DDA.
7. Affordable Housin~ Requirements.
A. Degeloper submits to.Agency
identification of units to be sold to
households not to exceed the moderate-
income household level ("Affordable
Housing") set forth in Section 7A of the
DDA.
B. Agency approves or disapproves
Affordable Housing units to be sold.
C. Developer submits to Agency'
A.ffordable Housing PurchaSer Selection
and Criteria Plan.
D. Agency approves or disapproves
.4_f'fordable Housing Purchaser Selection
and Criteria Plan.
Within 45 calendar days following execution of
the Agreement by Agency and prior to any unit
'sales.
Within 5 working days following submission of.
identification by Developer.
Within 90 calendar days following execution of
the A~eement by Agency.
Within 15 working days following submission
of Selection and Criteria Plan by Developer.
-4-
E. Developer initiates n~arketing and sales
of the Affordable Housing units.
F. Developer submits to Agency
individual escrow instructions for buyers of
Affordable Housing units and all other
documents and information described in
Sections 7, 10 and 12 of the DDA.'
G. Agency approves or disapproves
individual escrow instructions and related
items for buy~s of Affordable Housing
8. Submission of Reauest for Certificate
of Compliance. Developer submits request
for issuance of a Certificate of Compliance
by Agency.
Within 30 calendar days following approval by
Agency of Developer's Affordable Housing
Purchaser Selection and Criteria Plan.
At least 15 working days before close of escrow
for each individual unit.
Within 5 working days following submission of
individual escrow instructions and related items
by Developer
Upon completion of ail Site Improvements and
satisfaction of all conditions precedent set forth
in the DDA.
9. Approval and Issuance of Certificate of
Compliance. The Agency appro'ces or
disapproves the request for issuance of a
Certificate of Compliance.
Within 10 Working days following submission
of request for Certificate of Compliance and
satisfaction of all conditions precedent set forth
in the DDA.
10. Recordation of Certificate of
Compliance. The Agency shall cause the
recordation of the Certificate of
Compliance in the Office of the County
Recorder of Orange County.
Within 5 working days following issuance of
Certificate of Compliance by Agency.
11. Submission of Request for Release of
Agenc.v Retention. Developer shall submit
a request for disbursement of Agency
Retention pursuant to Section IV.E of the
Method of Financing (Attachment 5).
Upon issuance of a Certificate of Compliance
by Agency.
12. Release of A~enc,v Retention. The
Agency shall disburse the Agency
Retention mounts to Developer.
Within 30 working days following Developer's
request for Release of Agency Retention.
-5-
" METHOD OF FINANCING
Attachment 5 t° DDA
1101-03
66526 1
" ATTACHMENT NO. 5 .
METHOD OF FINANCING
WAPcML'qGTON OLD TOWN ASSOCIATES, L.P. PROJECT
NOTE: References herein to "the Agreement" and "ge DDA"
mean the Disposition and Development Agreement of which this
AttaChment No. 5 is a part; references to "Attachments" mean the
Attachments to the DDA unless otherwise specified. Except as otherwise
noted, all capitalized terms defined within the DDA and the Attachments
shall retain the mean/ngs as defined in the Disposition and Development
Agreement.
I. PROJECT BUDGET AND FINANCING SOURCES AND DEFI2qlTIONS
A. In General
The acquisition of the Site is intended to be financed in installments as
pro~Sded in this Method of Financing. (The acquisition of the Site and the construction
of the Site Improvements are collectively referred to herein as "the Project.") The
"Project Budget", which is attached hereto as Exh/bit A, estimates the total Project Costs
(as defined in Section I.B hereto), to be Nine Million, Six Hundred Three Thousand, Five
Hundred Dollars ($9,603,500). Such total Project Costs may be reduced by cost savings
fi-om adjustments to school fees and water hook-up credits, in which event Agency
Assistance described in Section IB below shall be reduced by such cost savings.
Funding of the total Project Costs will be generally as follows:
o
"Developer Equity" (as defined in Section I.B(3) herein) in an amount
not less than One Million, Three Hundred Fifty One Thousand Dollars
($1,351,000);
.
"Agency'Assistance" (as defined in Section I.B(1) herein) in an
amount not to exceed One Million, Six Hundred Sixty Five Thousand,
Five Hundred Dollars ($1,665,500) or such amount reduced per
Section IA above, and by cost savings or excess profits, as described in
Section IV
.
"Conventional Construction Loan" (as defined in Section I.B(2)
herein) in an approximate amount of Six Million, Five Hundred Eighty
Seven Thousand Dollars ($6,587,000).
-1-
B. Definitions ·
o
"Agency Assistance" shall mean the mount of Agency aSsistance
required 'to be funded by the Agency for the Project, which shall be
disbursed in increments, aS follows:
a)
The amount of Seven Hundred Seventy Eight Thousand
Ei~ht Hundred Dollars ($778,800) to be paid into escrow
for the purchase of the Site;
b)
An amount not to exceed Four Hundred Ninety Three
Thousand Dollars ($493,000), or such mount as may be
reduced by any cost savings from adjustments to school
fees and water hook-up credits described in Section IA
above, to be disbursed in accordance w/th Section III.C1
below; and
c)
An amount not to exceed Three Hundred Ninety Three
Thousand, Seven Hundred Dollars ($393,700), to be
disbursed in accordance .with Section 1II. C2 below.
o
"Conventional Construction Loan" shall mean a construction loan
made by a Permitted Mortgagee ("Permitted Mortgage") to finance
Project Costs as more particularly described in Section II.C below.
.
"Develgper Equity" shall mean all cash equity made available by the
Developer to fund Project Costs, including the Developer's CaSh
Equity Contribution and Developer's Deferred Equity, as more
particularly described in Sections II.A and II.B below,.and any costs
overnms, excluding any proceeds from a Permitted Mortgage.
"Project Costs" shall mean all reasonable and necessary cost and
expenses incurred by Developer prior to issuance of a Certificate of
Compliance and solely in connection with the acquisition, planning,
design, construction, improvement, development and equipping of the
Project, which costs are enumerated in Exhibit "A"- Project Budget.
Se
"Land Development Costs" shall be defined to include all costs
incurred in connection with the land development and 'Site preparation
work necessary to provide so called finished lots, off-site
improvements, on-site utility connections, street improvements,
landscaping and common area improvements, including such Project
Costs enumerated in Exhibit "A" which are reaSonably allocated to the
land development and site preparation work.
-2-
o ·
"Residential Unit Construction Costs" shall be defined ~o include all
costs incurred in connections with the construction of the residential
building improvements, including such Project Costs enumerated in
Exhibit "A" which are reasonably allocated to the residential building
construction work.
II. DEVELOPER FUNDING
A. Developer's Cash Eauitv Contribution
"Developer's Cash Equity Contribution" shall be in an mount not less
than Eight Hundred.Fift-y Thousand Dollars ($850,000). Developer's Cash Equity
Contribution shall be USed to fund Project Costs. On or before the date set forth in the
Schedule of Performance (Attachment No.4 of this Agreement), Developer shall establish
a separate bank account or third-party escrow account approved by Agency containing
the Developer's Cash Equity Contribution (Developer's' Equity Account). -The
Developer's Equity Account shall remain under the control of the Developer, who shall
earn all interest on the Developer's Cash Equity Contribution. The Developer may
finance the Developer's Cash Equity Contribution and shall be permitted to accrue
interest at a rate not to exceed 5.45% per year simple interest, less any interest earned
thereon, on the financed amount remaining unpaid throu~h thc sale of the individual
housing units. The Developer's Cash Equity Contribution and such financing thereof
shall not in any manner be an encumbrance on the Site. The Developer shall provide the
Agency with a regular accounfmg through the draw down process showing the amount of
money drawn from the Developer's Equity Account, the purpose for which it was spent
and the date on which it was spent.
The 5.45% simple interest accruals on the $850,000 Developer's Cash
Equity Contribution and on any additional cash equity contributions made by
Developer's parmers, shall be counted as Finance Costs for the purposes of Exhibit "A" -
Project Budget.
B. Developer's Deferred Equi _ty
"Developer's Deferred Equity" shall be an amount not to exceed the
~eater of: (i) 3.6% of Project Costs excluding the Agency Assistance amount plus an
amount not to exceed One Hundred Eighty Five Thousand Dollars ($185,000) for the
deferred payment for real estate purchase and sales commissions, or (ii) Three Hundred
Sixteen Thousand Dollars (S316,000) for General and Administrative costs identified as a
portion of the Project Costs plus an amount not to exceed One Hundred Eighty Five
Thousand Dollars ($185,000) for the deferred payment for real estate purchase and sales
commissions.
-3-
C. Conv~mtional Construction Loan
Developer shall obtain a Conventional Construction Loan from a
Permitted Mortgagee in an approximate amount Six Million Five Hundred Eighty Seven
Thousand Dollars (5;6,587,000). [Calculated as $9,603,500 total Project Cost, less a)
$1,351,000 Developer Equity and b) $1,665,500 Agency Assistance.] The Conventional
Construction Loan shall be funded and disbursed as provided in the construction loan
a~eement between the Developer and the Permitted Mortgagee.
AGENCY ASSISTANCE
A. .Agency Loan
All Agency Assistance shall be ~n the form of a loan evidenced by a
Promissory Note and secured by a Deed of Trust. The terms of the Note and Deed of
Trust are contained in the DDA and in Attachments 6 and 7 of the DDA.
B~ Initial Land Acouisition Assistance Disbursement
Subject to the satisfaction of conditions precedent as described in Section
6C of the DDA, the Agency shall provide Seven Hundred Seventy Eig~ht Thousand, Eight
Hundred Dollars ($778,800) to assist Developer to close escrow for the acquisition of the
Site.
C. Subseouent Land Acquisition Assistance Disbursements
Subject to the satisfaction of conditions precedent as described in Section
6D of the DDA, the Agency shall provide up to Eight Hundred Eighty Six Thousand
Seven Hundred Dollars ($886,700) in accordance with the following:
le
Agency shall disburse up to Four Hundred Ninety Three Thousand Dollars
($493,000), or such amount as may be reduced by cost .savings from adjustments to
school fees and water hook-up credits described in Section IA(2) above, in the
following increments: an amount equal to thirty-five percent (35%) of each
Conventional Construction Loan draw approved by Developer's Permitted Mortgagee
for Land Development Costs incurred in connection with the construction of the on-
site and off-site land development improvements (as more particularly described in
the Scope of Development (Attachment N°.3 of the DDA) and the Developer's
Project Pro Forma dated March 13, 1998), less 10% Agency Retention as described in
Section IVB below to secure completion. Payment requests will come from the
Developer and be in the form described in Section IV below.
e
Agency shall disburse up to Three Hundred Ninety Three Thousand, Seven Hundred
Dollars ($393,700) in the following incremems: an amount equal to ten percent
(10%) of each. Conventional Construction Loan draTM approved by Developer's
-4-
Permitted Mortgagee for the Residential Unit Construction Costs incurred in the
construction and marketing of the residential dwelling units (as more particularly
described in the Scope of Development (Attachment No.3 of the DDA) and the
Developer's Project Pro Forma dated March 13, 1,998), less 10% Agency Retention
as described Section IVB below to secure completion. Payment requests will come
from the Developer and be in the form described in Section IV below.
IV. DISBI/RSEM/~NT PROVISIONS
A. Payment Reauests
On or before the fifth (5th) day after each loan draw approval by the
Developer's lender for the Site Improvements, the Developer shall submit to the Agency
a request for payment ("Payment Request"), which request shall be accompanied by
conlzactor hen releases and other supporting documentation reasonably requested to
evidence costs and expenses incurred by or on behalf of the Developer in connection with
the Project for the immediately preceding Payment' Request period and which costs the
Agency has a funding obligation pursuant to the DDA. Developer's request shall not
~include a request for payment of any retention mounts that are to be withheld by
Developer from contractors.
B. A_c, encv Retention
The Agency will withhold ten percent (10%) from each request for
disbursement for Land Acquisition Assistance under Section .III.C above ("Agency
Retention") until all of the Site Improvements on the Site .have been completed and the
Certificate of Compliance has been issued in accordance with Section 11 of the DDA.
C. A~encv Review and Disbursements
The Agency shall review each Payment Request. to determ/ne whether the items
for which payment is requested are consistent with the DDA and may request additional
supporting documentation, including receipts, invoices or purchase orders, if reasonably
necessary to substantiate the Payment Request. The Agency shall provide to the
Developer the Agency's approval or disapproval of such Payment Request within ten
(10) working day following the submission thereof by the Developer. In the event the
Agency either fails to grant approval or indicate disapproval of such Payment Request
within said ten-day period, the Agency shall be deemed to have approved the Payment
Request in its entirety. The Agency shall have the right to disapprove only such portions
of the Payment Request which are inconsistent with Agency funding obligations under
the Agreement, or if as part of the Payment Request submitted to the Agency, the
Developer has failed to. furnish documentation evidencing that payments are due for
disbursement. If the Agency disapproves of all or any portion of the Payment Request,
the Agency shall provide the Developer with a written notice of disapproval within said
ten-day period, said wa-itten notice shall specify those items disapproved by the Agency.
-5-.
If the Agency disapproves all or any portion of the Payment Request, the parties shall,
within two working days following Developer's receipt of such written disapproval, meet
and confer in food faith in order to resolve any disputed items. Within 30 calendar days
following approval or deemed approval of the Payment Request by the Agency, the
Agency shall disburse to Developer funds in the amount of the Payment Request, less
such portion of the Payment Request disapproved by the Agency as provided herein
above.-
D.
Adjustments to Agency Assistance
Prior to the issuance of a Certificate of Compliance Developer shall submit to
Agency for review and approval an audited statement of all Project Costs incurred by
Developer in accordance with Section 11 (2) of the DDA. Based on the approved audited
statement, Developer and Agency shall determined whether:
lo
Project Costs were less than the sources of funding described in Section
IA and the subtotal amounts set forth in Exhibit "A", if so, then fifty
percent (50%) of the difference 'shall be paid by the Developer to the
Agency to reduce the Agency's Assistance. Such amounts shall be paid
prior to Agency's issuance of a Certificate of Compliance; or
.
The sum of the Developer profit fi.om the Project exceeds the lesser of (i)
ten percent (10%) of total sales revenue for the residential units or (ii)
$852,000. If so, then fifty percent (50%) of the difference shall be paid by
the Developer' to the Agency to reduce the Agency's Assistance. Such
amounts shall be paid prior to Agency's issuance of a Certificate of
Compliance.
E. Retention Disbursement
The Developer shall submit a written request to the Agency requesting the
disbursement of the Agency Retention upon issuance of the Certificate of Compliance.
Within ten (10) working days of approval of such request, the Agency shall disburse such
retention amount to Developer.
V. GENERAL TERMS OF FINANCING DEVELOPMENT
The Developer acknowledges that the Project Costs.may exceed the amounts set
forth in Exhibit "A" - Project Budget. Accordingly, Developer shall bear ail costs in
excess of the subtotal amounts set forth in Exhibit "A". Notwithstanding the foregoing,
however, to the extent that any of the Project Costs shown on Exhibit "A" - Project
Budget, other than the General Administrative Costs which are capped at $316,000,
exceed the respective amount shown on Exhibit "A" - Project Budget, such excess shall
be taken into account in determining Developer's profit under Section IV.D.(2) above,
and in determining any Agency profit-sharing pursuant to that Section.
-6-
o.
EXHIBIT - "A"
to
METHOD OF FINANCING
PROJECT BUDGET
Site Acquisition Cost
Land Development Cost
Residential Unit Construction Cost
$ 3,213,5 O0
$1,771,000
$ 2,589,000
Indirect Construction Cost:
Marketing and Sales
Finance Costs
General Administrative
408,000
570,000
736,000
316,000
TOTAL PROJECT COSTS
$ 9,603,500
-7-
AGENCY LOAN PROMISSORY NOTE
Attachment 6 to DDA
~]o]io~
66526_1
DO NOT DESTROY. THIS NOTE: WHEN PAID, THIS NOTE MUST BE
SURRENDERED TO THE TRUSTEE FOR CANCELLATION, BEFORE
RECONVEYANCE OF THE DEED OF TRUST SECURING THIS NOTE WILL BE
MADE.
PROMISSORY NOTE
(Warmington Old Town Associates, L.P.)
Not to exceed $1,665,500.00
Tustin, California
September ,1998
!. Loan
For value received, WARMINGTON OLD TOWN ASSOCIATES, L.P., a California
limited partnership ("Obligor") promises to pay to the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a California community redevelopment agency ("Agency"),
or order, at 300 Centennial Way, Tustin, California 92780, Attention: Assistant Executive
Director, or at such other place as the holder of this note may from time to time designate
by written notice to Obligor, a principal sum equal to the total amount of ali disbursements
from Agency to Obligor hereunder, such sum not to exceed the amount of One Million Six
Hundred Sixty-Five Thousand. Five Hundred Dollars ($1,665,500.00) ("Land Acquisition
Assistance"), with interest at the rate of seven percent (7%) per annum compounded
monthly. Principal and interest shall be due and payable, on the terms and conditions
provided herein, in lawful money of the United States of America.
!!. Purpose
., This note is made pursuant, to that_certain Residential Project Disposition'and
Development Agreement betWeen Obligor and Agency, dated , 1998 (the
"Agreement"), and pertains to the development of the property described on Attachment
A hereto, which is incorporated herein by this reference (the "Property"). Obligor shall
develop the Property for the sale of thirty-eight single-family, owner-occupied residential
units, eight of which shall be sold at a pdce not to exceed the Affordable Housing Cost (as
defined in the Agreement) for "moderate income persons' or families," as defined in Section
50093 of the California Health and Safety Code (the "Affordable Units"). The .remaining
units may be sold Without restriction as to buyer income (the "Non-Restricted Units").
The terms used herein Shall have the Same meanings as those defined in the
Agreement.
I!1. Disbursement
A. General
The total amount to be disbursed hereunder shall be in accordance with both
Section 6 of the Agreement and the Method of Financing (Attachment 5 to the Agreement),
as summarized below.
B. Loan Amount
1. The One-Million-Six-Hundred-Sixty-Five-Thousand-Five-Hundred Dollar
($1,665,500.00) not-to-exceed amount of this note is based on the following: (1) Seven
Hundred Seventy-Eight Thousand Eight Hundred Dollars ($778,800.00) to assist Obligor
in closing escrow for the purchase of the Property; (2) an amount not to exceed Four'
Hundred Ninety-Three Thousand Dollars ($493,000.00), determined as 35% of each draw
approved by Obligor's Permitted Mortgagee for Land Development (excluding construction
of units); and (3) an amount not to 'exceed Three. Hundred .Ninety-Three Thousand Seven
Hundred Dollars ($393,700.00), determined as 10% of each draw approved byObiigor's
Permitted Mortgagee for unit construction and marketing.
The total principal amount of this note shall equal the lesser of: (1) the total of the
amounts described in the preceding sentence, or (2) One Million Six Hundred Sixty-Five
Thousand Five Hundred Dollars ($1,665,500.00), and shall be determined as provided in
Section iV of the Method of Financing (Attachment 5 to the Agreement).
2. Obligor shall maintain complete and accurate accounts, invoices, and records
of all monies expended or paid pursuant to contracts for the demolition of the existing
structures on the Property, the removal of asbestos., and the constructiOn of the Site
Improvements.
C. Conditions and Disbursement Schedules
Agency shall disburse, to or for the benefit of Obligor, the following proceeds of this
note, based on the following conditions and disbursement schedules:
1. Conditions for Disbursement of Initial Land Acquisition Assistance Amount.
Agency shall disburse into escrow, for the benefit of Obligor, an amoUnt equal to
Seven Hundred Seventy-Eight Thousand Eight Hundred Dollars ($778,800.00), subject to
the following conditions:
(a) Obligor shall have submitted and Agency shall have approved, the
Evidence of Financing Commitments pursuant to Section 6B of the Agreement;
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(b) OlSiigor shall have obtained a commitment from a Permitted.
Mortgagee to fund the remaining costs associated with the acquisition of the Property;
(c) Obligor sl~all have caused the recordation of a final parcel map to
establish the Property as a legal parcel for sale and financing under the California
Subdivision Map Act;
·
.
(d) Obligor shall have deposited or caused to be deposited into escrow
for the purchase of the Property, all funds necessary to purchase the Property, except the
initial disbursement ($778,800.00) of the Land Acquisition Assistance amount;
(e) Agency shall have received, from the escrow holder with respect to
Obligor's purchase ofthe Property, such escrow holder's commitment to abide by Agency's
escrow instructions pertaining to the initial disbursement ($778,800.00) of the Land
Acquisition Assistance amount; which escrow instructions shall specify, inter alia, that the
Agreement to Be Recorded Affecting Real Property between Obligor and Agency (a copy
of which is attached as Attachment 9 to the Agreement) and the deed of trust securing this
note shall be recorded through escrow, immediately following any Permitted Mortgage and
without cost to Agency;
(f) Such escrow holder is prepared to have issued to Agency, on close
of escrow, an ALTA lender's title policy showing' (1) fee simple title to the Property as
vested in Obligor, (2) Agency as an insured lender, and (3) no monetary liens or
encumbrances, other than a Permitted Mortgage, a lien for taxes not yet due and payable,
and the deed of trust securing this note;
(g) Charles W. Ford and Patricia H. Ford, as Trustees of the Ford Family
Trust dated September 21, 1984, DeBeikes Investment Company, a California corporation,
Warmington Homes California, a CalifOrnia corporation, and Agency shall have executed
a Commercial Rehabilitation Project Disposition and Development Agreement
("Commercial DDA"), with respect to the development of certain property adjacent to the
Property;
(h) Agency shall have received written notice from Warmington Homes
California that: (i) Charles W. Ford and Patricia H. Ford, as Trustees of the Ford Family
Trust dated September 21, 1984, and Warmington Homes C'alifornia, a California
corporation, have executed a Construction Agreement for the performance, by Warmington
Homes California, of general contractor services for the Rehabilitation Project work under
the Commercial DDA, and (ii) Warmington Homes California shall provide general
contractor services with respect to the Rehabilitation 'Project under the Commercial DDA;
and
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(i) A~jency shall have received from Charles W. Ford and Patricia H.
Ford, both individually and as Trustees of the Ford Family Trust dated September 21, 1984
(collectively, the "Releasors"), a written release and indemnity, in form and substance
satisfactory to Agency, pursuant to which the Releasors (A) release the City and Agency
for any and all claims for lost rent or loss of good will with respect to the units on the
Property, and (B) agree to defend, indemnify, and hold harmless the City and Agency, their
officers and representatives, employees and agents from and 'against any claims, liability,
injury, demands, suits, judgments or awards arising from or related in any manner to the
relocation or removal of any tenant from the Property (whether effected by the City, Agency
or Obligor), except for (1) claims for relocation assistance that Agency accepts for
processing as described in Section 5 of the Agreement, 'and (2) any claims, liability, injury,
demands, suits, judgments, or awards based on Agency's or City's active negligence or
wilful misconduct.
2. Initial Disbursement of Land Acquisition AssiStance Amount. Within
five (5) business days after receipt of evidence that all the conditions set forth in
subparagraph I above have been satisfied, Agency shall disburse, for the benefit of
Obligor, the amount of Seven Hundred Seventy-Eight Thousand Eight Hundred Dollars
($778,800.00) into the escrow for Obligor's purchase of the Property.
3. Conditions for Disbursement of Subsequent Land Acquisition Assistance
Amounts. Agency shall disburse to Obligor a total amount not to exceed Eight Hundred
Eighty-Six Thousand Seven Hundred Dollars' ($886,700.00), subject to a 10% Agency
Retention, in increments as provided in subparagraph 4 below, subject to the following
conditions:
(a) Obligor shall have obtained fee simple, merchantable title to the
Property free and clear of any monetary liens or encumbrances, except a Permitted
Mortgage, a lien for taxes not yet due and payable, and the deed of trust securing this
note;
(b) Obligor shall have submitted and Agency shall have approved, the
Evidence of Financing Commitments. pursuant to Section 6B of the Agreement; ......
(c) Obligor shall have fumished Agency with an ALTA lender's title policy
showing: (1) fee simple title to the Property as vested in Obligor, (2) Agency as an insured
lender, and (3) no monetary liens or encumbrances, other than a Permitted Mortgage, a
lien for taxes not yet due and payable, and the deed of trust securing this note;
(d) Obligor shall have furnished to Agency proof of insurance coverage
as provided in Section 13 of the Agreement;
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(e) Oi:Jligor shall not then be in default under the terms of the Agreement,
the Agreement to Be Recorded Affecting Real Property, this note, or the deed of trust;
(f) Obligor shall have obtained City land use entitlements to construct the
Site Improvements;
(g) Obligor shall have prepared or caused to be prepared all plans,
drawings and specifications .(the "Plans") necessary to construct and install the Site
Improvements;
(h) Obligor shall have delivered to Agency a Payment Request and all
supporting documentation as required by Section IV of the Method of Financi'ng
(Attachment 5 to the Agreement), and Agency shall have approved such Payment
Request;
(i) Charles W. Ford and Patricia H..Ford, as Trustees of the Ford Family
Trust dated September 21, 1'984, DeBeikes Investment Company, a California corporation,
Warmington.Homes California, a California corporation, and Agency shall have executed
the Commercial DDA, with respect to the development of certain property adjacent to the
Property;
(j) AgencY shall have received written notice from Warmington Homes
California that: (i) Charles W. Ford and Patricia H. Ford, as Trustees of the Ford Family
Trust dated September 21, 1984, and Warmington Homes California, a California
corporation, have executed a Construction Agreement for the performance, by Warmington
Homes California, of general contractor services for the Rehabilitation Project work under
the Commercial DDA, and (ii) Warmington Homes California shall provide general
contractor services with respect to the Rehabilitation Project under the Commercial DDA;
(k) Agency shall have received from Charles W. Ford and Patricia H.
Ford, both individually and as Trustees of the Ford. Family Trust dated. September 21, 1984
(collectively, the "Releasors"), a written release and indemnity, in form and substance
satisfactory to Agency, pursuantto which the Releasors (A) release the Cityand Agency
for any and all claims for lost rent or loss of good will with respect to the units on the
Property, and (B) agree to defend, indemnify, and hold harmless the City and Agency, their
officers, and representatives, employees and agents from and'against any claims, liability,
injury, demands, suits, judgments or awards arising from or related in any manner to the
relocation or removal of any tenant from the Property (whether effected by the City, Agency
or Obligor), except for (1) claims for relocation assistance that Agency accepts for
processing as described in Section 5 of the Agreement, and (2) any claims, liability, injury,
demands, suits, judgments, or awards based on Agency's or City's active negligence or
wilful misconduct; and
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'5
(!) Wi~h respect to the 10% Agency Retention only, as described in this
subparagraph 3 and in Section 6 of the Agreement, Obligor shall have requested, and
Agency shall have issued, a certificate of c°mpliance on the conditions and as described
in the Agreement, and Obligor shall have delivered to Agency a request for release of
Agency Retention.
4. Subsequent Disbursements of Land'Acquisition Assistance Amounts. After
the satisfaction of conditions (a) through (k) forth in subparagraph 3 above, Agency shall
disburse, to Obligor, the applicable portion of the Four-Hundred-Ninety-Three-Thousand-
Dollar ($493,000.00) amount and/or the Three-Hundred-Ninety-Three-Thousand-Seven-
Hundred-Dollar ($393,700.00) amount as described in Section !11,. Paragraph B,
subparagraph I above and in Section 6D(2) of the Agreement, less a 10% Agency
Retention, within thirty (30) calendar days after Agency has approved both a Payment
Request therefor and all supporting documentation as required by Section IV of the Method
of Financing (Attachment 5 to the Agreement). After'the satisfaction of conditions (a)
through'(l) set forth in subparagraph 3 above, Agency, within thirty (30) business days after
its receipt of Obligor's request for release of Agency Retention, and within ten (10)
business days after Agency's approval thereof, shall release, to Obligor, the total amount
of ali 10% Agency Retentions.
Notwithstanding the foregoing, however, Agency may apply any or all of the 10%
Agency Retention amounts to those amounts, if any, owing from Obligor to Agency as
adjustments to Agency Assistance, as described in Section 6 of the Agreement and
Section 4 of the Method of Financing (Attachment 5 to the Agreement).
5. Additional Provisions. in no event shall further disbursements be made
after such time as total disbursements under this note plus 10% Agency Retention
amounts have equaled One Million Six Hundred Sixty-Five Thousand Five Hundred Dollars
($1,665,500.00). The provisions of the Schedule of Performance (Attachment 4 to the
Agreement) and the Method of Financing (Attachment 5 to the Agreement) shall apply to
this note and are hereby incorporated herein by reference.
.- IV. Interest
Interest (seven percent (7%) per annum compounded monthly).shail accrue on the
amount of each respective disbursement from the date of disbursement until the date paid.
No interest shall accrue with respect to the 10% Agency Retention amounts.
V. Payment
No payments shall be due under this note until the earlier to occur of: (1) January
1, 2001, or (2) the date of acceleration of this note as provided below. Upon the earlier to
occur of such dates, all principal and accrued interest shall be due and payable in full.
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.,
VI. Deed of Trust. -
This note shall be secured by a deed Of trust in the form of Attachment 7to the
Agreement. Such-deed of trust shall be executed by Obligor and recorded as a lien
against the Property prio'r to close of escrow for Obligor's purchaSe of the Property, and
the lien of the deed of trust shall be subordinate to the lien of any Permitted Mortgage
'required for Obligor's acquisition or financing of the Site Improvements. Providing a
certificate of use and occupancy has then been issued for the first unit to be sold on the
Property, a full reconveyance of the deed of trust shall .be recorded prior to the close of
escrow for the purchase of such first unit by a member of the public.
Vii. Satisfaction and Release
Prior to the January 1, 2001 due date, all principal and accrued interest due and
owing under this note shall be deemed paid, and Agency shall cancel this note, if: (1) ali
of Obligor's Site Improvements have been constructed, (2) all of Obligor's other obligations
under the Agreement have been fulfilled, and (3) Agency has issued a certificate of
compliance with respect to Obligor's. obligations under the Agreement.
Viii. General Provisions'
1. Interest and Late Charges. if any installment of interest is not paid when due
and within ten (10) days after written 'notice of such default to Obligor, it shall thereafter
bear like interest as the principal until paid. if any payment of principal or interest due
under this note is not paid in full on or before the date. such payment is due and within thirty
(30) days after written notice of such default to Obligor, Obligor shall in addition pay to the
holder of this note a late charge of five percent (5%) of the amount of such payment then
due and payable but not so received by the holder of this note, which late charge shall
constitute liquidated damages under California Civil Code SectiOn 1671 (b). The imposition
of such late charge does not imply or constitute any agreement of the holder of this note
to forbear collection of any delinquent amounts or to forbear the exercise of any other
remedy under this note or under the deed of trust securing this note. Obligor
acknowledges that this late charge is reasonable under the circumstances existing at the
date of this note.
'Each payment shall be credited first to any late charges and other costs and
expenses of enforcement and collection as provided herein, then to accrued but unpaid
interest then due, and then to principal, and interest shall thereupon cease upon the
principal so credited.
2. Qc, JauJJ,. Notwithstanding any other provision of this note to the contrary, if,
prior to the issuance of a certificate of use and occupancy for the first unit to be sold on the
' Property, Obligor defaults under the terms of the Agreement,'this note, the deed of trust,
1101-03
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or the Agreement to Be Recorded Affecting Real Property, and fails to cure any such
default pursuant to the provisions of Section 14 of the Agreement, the entire unpaid
principal balance and all unpaid accrued interest under this note shall become immediately
due and payable in full, without notice, at the option of the holder of this note, and the
holder shall have all rights and remedies available to it at law or in equity with respect to
such default, including, without'limitation, the right to foreclose under the deed of trust.
The failure to exercise such option shall not. constitute a waiver of the right to exercise it
in the event of any subsequent default.
Notwithstanding any other provision of this note to the contrary, if, after the issuance
of a certificate of use and occupancy for the first unit to be sold on the Property, but prior
to Agency's issuance of a certificate of compliance pursuant to the Agreement, Obligor
defaults under the terms of the Agreement, this note, or the Agreement to Be Recorded
Affecting Real Property, and fails to cure any such default pursuant to Section 14 of the
Agreement, the entire unpaid principal balance and all unpaid accrued interest under this
note shall become immediately due and payable in full, without notice, at the option of the
holder of this note, and the holder shall have all rights .and remedies available to--it at law
or in equity with respect to such default, including, without limitation, the remedy of specific
performance to compel payment of the amounts due. The failure to exercise such option
shall not constitute a waiver of the right to exercise it in the event of any subsequent
default.
in addition, if Obligor defaults under the terms of the Agreement, this note, the deed
of trust, or the Agreement to Be Recorded Affecting Real Property, and fails to cure any
such default pursuant to the provisions of Section 14 of the Agreement, Agency, at its
option, may apply any and/or all of the 10% Agency Retention amounts it then holds
hereunder to cure such default. The failure to exercise such option shall not constitute a
waiver of the right to exercise it in the event of any subsequent default.
The dissolution of Warmington Old Town Associates, L.P.; the delivery by any
general or limited partner of Warmington Old'Town Associates, L.P., to any other partner
of.Warmington Old Town Associatesl L.P., of a notice of dissolution; the cessation, without
Agency permission, of Warmington Homes California to act as general partner of
Warmington Old Town Associates, L.P.; the filing of voluntary or involuntary bankruptcy or
insolvency proceedings by or against Warmington Old Town Associates, L.P.; the
establishment of a receiver for the benefit of creditors of Warmington Old Town Associates,
L.P.; the making of an assignment for the benefit of creditors of Warmington Old Town
Associates, L.P.; and the failure of Warmington Old Town Associates, L.P. to pay its debts
when due; shall each constitute events of default under this note.
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3. Deed of ~'rust Provisions. This note is secured by a deed of trust, of even ·
date herewith, in favor of First American Title Insurance Company, a California corporation,
as Trustee, which encumbers the Property. The deed of trust contains the following
provision:
"If Trustor shall sell, convey or alienate the real property ("Property")
encumbered by this Deed of Trust, or any part thereof, or any interest
therein, or shall be divested of its title or any interest therein in any manner
or way, whether voluntarily or involuntarily, without the written consent of
Be, neficiary being first had and obtained, which consent may be.withheld for
any reason whatsoever, Beneficiary shall have the'right, at its option, except
as prohibited by law, to declare all of the indebtedness or obligation secured
hereby, irrespective of the maturity date specified in any note evidencing the
same, immediately due and payable in full."
The deed of trust also contains the following provision:
"If a default occurs (a)in the payment of any installment of principal or
interest when due under the note the performance of which is secured
hereby, (b) under any other provision of such note or this Deed of Trust, (c)
under the terms of the Residential Project Disposition and Development
Agreement dated ~, 1998 between Trustor and Beneficiary (a copy of
which is on file with Beneficiary aS a public record' and the terms of which are
incorporated herein by reference), or (d) under the terms of the Agreement
to Be Recorded Affecting Real Property between Trustor and Beneficiary (a
copy of which is on file with Beneficiary as a public record and the terms of
which' are.incorporated herein by reference), and Trustor fails to cure such
default pursuant to the provisions of Section 14 of the Residential Project
Disposition and Development Agreement, then the entire unpaid principal
balance and all unpaid accrued interest under the note shall at once become
due and payable in full, without notice, at the option of the holder of the note,
and Beneficiary shall have all rights available to it under the note and this
Deed of Trust, and as otherwise provided by law or in equity, including but
not limited to the right to foreclose under this Deed of Trust. The failure to
exercise such option shall not constitute a waiver of the right to exerCise it in
the event of any subsequent default."
The deed of trust provisions quoted above are material provisions of this note.
4. Costs, Expenses, and Fees. Obligor agrees to pay the following costs,
expenses, and attorneys' fees paid or-incurred by the holder of this note, or adjudged by
a court: (1) reasonable costs of collection or enforcement, including costs, expenses and
attorneys' fees paid or incurred in connection with the collection or enforcement of this
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note, whether or not s~Jit is filed; and (2) costs of suit and such sum as the court may
adjudge as attorneYs' fees in any action to enforce payment of this note or any part of it.
"Obligor"
WARMINGTON OLD' TOWN
ASSOCIATES, L.P., a California limited
partnership
By: Warmington Homes California, a
California corporation, its general
partner
By'
Brian L. Sinderhoff, President,
Southern California Division
ACCEPTED BY:
TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a
California community redevelopment
agency
By:
Its:
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10
LEGAL DESCRIPTION OF PROPERTY
That portion of that land in the City of Tustin, County of Orange, State of California, as
described in Grant Deed recorded January 27, 1989, as Instrument No. 89-049195, Official'
Records of said county, described as follows:
Beginning at a point in the Southeast line of said land, distant North 40°40'18" East 116.26
feet, along said Southeast line from the most Southerly corner of said land; thence North
47%9'01" West 274.61 feet, to the Westerly boundary of said land; thence along said
Westerly'boundary and the Northerly and Southeasterly boundaries of said land the
following courses: North 0%2'57" East 245.41 feet, South 89°25'52', East 358.65 feet to
a tangent curve concave Southerly having a radius of 88.00 feet, Easterly 47.97 feet along
said curve .through a central angle of 31°13'56'' to a reverse curve concave Northerly
having a radius of 50.00 feet, Northeasterly 74.88 feet along said curve through a central
angle of 85°48'08'' to a non-tangent curve concave Northerly having a radius of 300.00
feet, a radial line to the beginning of said curve bears South 4°08'41" East, Northeasterly
105.26 feet along said curve through a central angle of 20°06'11" to a reverse curve
concave Southeasterly having a radius of 240.00 feet, Northeasterly 5.61 feet along said
curve through a central angle of l°20'25'', non-tangent from said curve South 89°25'52''
East 13.62 feet, and South 40°40'18" West 597.71 feet to the Point of Beginning.
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ATTACHMENT "A" TO PROMISSORY NOTE
COUNTY BOOK PAGE COU, BOOK PAGE COUNTY PAGE COUNTY BOOK PAGE
Alameda 1288 556 Kings 858 713 . Placer 3-~z8 379 Sierra 38 187
Alpine 3 130-31 -Eake 437 310 Plumas 1 BE; 1307 Siskiyou 506 .762
Amador 133 438 Lessen 192 367 Riverside 3778 347 Solano 1287 621
Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 1'24 Sonoma 2067 427
Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56
Colusa 323 391 Matin 1849 122 San Bemardino 5213 768 Sutter 655 585
Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183
Del None 101 549 Mendocino 667 99 San Joaauin 2855 283 Trinity 108 595
El Dorado 704 ' 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108
Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 360
Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237
Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 · Yuba 398 693
Inyo 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 690 Orange 7182 18 San Diego SFRIES 5 Book 1964, Page 149774
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties, and printed on pages 3 and 4 hereof) are
by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as
if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby,
provided the charge therefor does not exceed the maximum allowed by law.
..
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed te
him at his address hereinbefore set forth.
Signature of Trustor
}
STATE OF CALIFORNIA }ss
COUNTY OF }
Signature of Trustor
WARMINGTON OLD TOWN ASSOCIATES, L.P., a
California limited partnership
By: Warmington Homes California, a California
corporation, its 'general partner
By:
Brian L. Sinderhoff, President,
Southern California Division
On before me, ,
personally appeared
personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person{s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature{s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
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Final Page 2 of 4
DO NOT RECORD
The following is a copy of Subdivisions A and B or'the fictitious Deed of Trust recorded in each county in California as stated in the foregoing Deed
of Trust and incorporated by reference in. .said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore promptly
and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due ali claims for
labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or improvements to be
made thereon, not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate,
irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, ~he specific
enumerations herein not excluding the general.
2) To provide, maintain and deliver~o Beneficiary fire insurance satisfactory to and with Ios~ payable to Beneficiary. The amount collected
under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may
determine, or at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall
not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or
Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in 'any such action or
proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay; at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant
water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior
hereto; ali costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, ~hen Beneficiary or Trustee, but without obligation so to do
and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may; make or do the same in such manner
and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property
for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or. powers of Beneficiary or
Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior
hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from .date of expenditure at the
amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the
obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement
is demanded.
B. It is mutually agreed:
1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is
hereby assigned and shall be paid to Beneficiary who may apply or release such monies received by him in the same manner and with the same effect
as above provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt
payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation
of this Deed and said note for endorsement, and without affecting the' personal liability of any person for payment of the indebtedness secured
hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon,
or join in any extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said
note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee
shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive
proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto".
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the fight, power and authority, during the continuance
of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment
of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they
become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of
said property or any part thereof, in his own name sue for or otherwise collect such rents, issues, and prof-Ks, including those past due and unpaid,
and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby,
and in such order as Beneficiary may determine. The entering upon and taking possession of said property, the collection of such rents, issues and
prof'rts and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant
to such notice.
·
6) That upon default by Trustor in payment of any indebtedness Secured hereby or in performance of any agreement hereunder, Beneficiary
may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and
of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary
also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having
been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of
sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money
of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time
and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including costs of evidence of title in connection with sale,
Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the
amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally
entitled thereto.
1101-03
s?93s_~ (CONTINUED ON NEXT PAGE) ~ss (~)
Final Page 3 of 4
7) Beneficiary, or any successor in rship of any indel:r[edness secured hereby, rr "Dm time to time, by instrument in writing,
substitute a successor or successors to any ' ; named herein or acting hereunder, which i ent, executed by the Beneficiary and duly
acknowledged and recorded in the office of the r .... der of the county or counties where said pr.ope, .. . situated shall be conclusive proof of proper
substitution of such successor Trustee or. Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate,
rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book amd page
where this Deed is recorded and the name and address of the new Trustee.
8) That this Deed applies to, inures to the benef"r~ of, and binds all parties hereto, their heirs, legatees, devisees, administrators, execLrtors,
successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein, in this Deed, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the
singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee
is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary
or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The Undersigned is the legal owner and holder of the note or notes, and of all other indebtedness secured by the foregoing Deed of Trust.
Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby
requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above
mentioned, and all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust,
and to reconvey, withou~ warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made.
LU
1101-03
67935_1
Final
! 158
Page 4 of 4
I-"~AL DESCRIPTION OF PROPEP'
·
. _.
.
·
That portion of that land in the City of Tustin, County of Orange, State of California, as des&ribed
in Grant Deed recorded January 27, 1989, as Instrument No. 89-0491 95, Official Records of said
county, described as follows:
Beginning at a point in the Southeast line of said land, distant North 40°40'1 8" East
11 6.26 feet, along said Southeast line from the most Southerly corner of said land;
thence North '47°59'01" West 274.61 feet, to the Westerly boundary of said land;
thence along said Westerly boundacy and the Northerly and Southeasterly boundaries
of said .land the following courses: North 0°32'57'' East 245.41 feet, South
89°25'52'' East 358.65 feet to a tangent curve concave Southerly having a radius of
88.00 feet, Easterly 47.97 feet along said curve through a central angle of .31 °1 3'56"
to a reverse curve concave No.rtherly having a radius of 50.00 feet, Northeasterly
74.88 feet along said curve through a central angle of 85°48'08" to a non-tangent
curve concave Northerly having a radius of 300.00 feet, a radial line to the beginning
of said curve bears South 4°08'41" East, Northeasterly 105.26 feet along said curve
through a central angle o~ 20006'11" to a reverse curve concave Southeasterly having
a radius of 240.00 feet, Northeasterly 5.61 feet along said curve through a central
angle of 1 °20'25", non-tangent from said curve South 89°25'52'' East 1 3.62 feet, and
South 40°40'1 8" West 597.71 feet to the Point of Beginning. ~
EXHIBIT 1
TO DEED OF TRUST
1101-03
67935_1
Final
RIDER ATTACHED TO AND MADE A PART OF
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
1. Due on Transfer. If Trustor shall sell, convey or alienate the'real property ("Property")
encumbered by this Deed of Trust, or any part thereof, or any interest therein, or shall be divested of its
title or any interest therein in any manner or way, whether voluntarily or involuntarily, without the .written
consent of Beneficiary being first had and obtained, which consent may be withheld for any reason
whatsoever, Beneficiary shall have the right, at its option, except as prohibited by law, to declare all of
the indebtedness or obligation secured hereby, irrespective of the maturity date specified in any note
evidencing the same, immediately due and payable in full.
2. Acceleration Clause. if a default occurs (a) in the payment of any !nstallment of principal or
interest when due under the note the performance of which is secured hereby, (b) under any other
provision of such note or this Deed of Trust, (c) under the terms of the Residential Project Disposition
and Development Agreement dated ,1998 between Trustor and Beneficiary (a copy of which is
on file with Beneficiary as a publ!c record and the terms of which are incorporated herein by reference),
or (d) under the terms of the Agreement to Be Recorded Affecting Real Property between Trustor and
Beneficiary (a copy of which is on file with Beneficiary as a public record and the terms of which are
incorporated herein by reference), and Trustor fails to cure such default pursuant to the provisions of
Section 14 of the Residential Project Disposition and Development Agreement, then the entire unpaid
principal balance and ali unpaid accrued interest under the note shall at once become due and payable
in full, without notice, at the option of the holder of the note, and Beneficiary shall have all rights
available to it under the note and this Deed of Trust, and as otherwise provided by law or in equity,
including but not limited to the right to foreclose under this Deed of Trust. The failure to exercise sUch
option shall not constitute a waiver of the right to exercise it in the event of any subsequent default.
3. ,,Subordination. The note the performance of which is secured hereby, and the lien created by this
Deed of Trust, Shall be subordinate to: (1) .any note given by the Trustor which is required for Trustor's
acquisition or financing of the Site Improvements (as defined in the Residential Project Disposition and
Development Agreement) and which is approved by Beneficiary pursuant to Section 6 of the Residential
Project Disposition and Development Agreement, and (2) the lien created by the deed of trust securing
the performance of the obligations under such note (a "Permitted Mortgage," as defined in the
Residential Project Disposition and Development Agreement).
4. Residential Project Disposition and Development Agreement. To the extent of any inconsistency
between the provisions of the Residential Project Disposition and Development Agreement and the
provisions of this Deed of Trust, including but not limited to the provisions of Deed of Trust Subdivisions
A. 1 and A.2 above re building demolition and insurance, the Residential Project Disposition and
Development Agreement shall control.
1101-03
68211_1
FINAL
EXHIBIT 2
TO DEED OF TRUST
5. Reconveyance. This De,.., of Trust shall be reconveyed up~,,, the satisfaction of the terms and
conditions of the note the performance of which is secured hereby, or at such earlier time as provided.
in Section VI thereof.
Trustor:
WARMINGTON OLD TOWN ASSOCIATES, L.P., a California limited
partnership
By: Warmington Homes California,. a California corporation,
its general partner
Bdan L. Sinderhoff, President, Southern California DMsion
1101-03
68211_1
F]NAL
EXHIBIT 2
TO DEED OF TRUST
CERTIFICATE OF ACCEPTANCE OF DEED OF TRUST
(Tustin Community Redevelopment Agency)
This is to certify that the interest in real property conveyed by the deed of trust dated September 4, 1998 from
WARMINGTON OLD TOWN ASSOCIATES, L.P., a California limited partnership, as trustor, to the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a governmental agency, as beneficiary ("grantee"), is hereby accepted by the undersigned
officer on behalf of the TUSTIN COMMUNITY REDEVELOPMENT AGENCY pursuant to authority conferred by Resolution
No. 95-3 of the Tustin Community Redevelopment Agency adopted on Apdl 3, 1995, and the grantee consents to recordation
thereof by its duly authorized officer.
Dated:
Title: [Executive Director or Recording Secretary]
1101-03
67935_1
Final
o-
SITE PLAN
Attachment 8 to DDA
1 lOl-OB
SITE PLAN
*~~'× ~: ,"" Attachment 8 to DDA
1 of 1 ..
AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
Attachment 9 to DDA
1101-03
665~26_1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF TUSTIN COMMUNITY
REDEVELOPMENT AGENCY
Attention: Christine Shingleton
300 Centennial Way
Tustin, CA 92780.
(Space Above for Recorder)
This Agreement is recorded at
the request and for the benefit
of the City of Tustin Community
Redevelopment Agency and is
exempt from payment of a
recording fee pursuant t~
Government Code Section 6103.
CITY OF TUSTIN COMMi/NITY
REDEVELOPMENT AGENCY
BY:
Its:
Dated: , 1998
CITY OF TUSTIN COM/~ZqITY REDEVELOPMENT AGENCY
AGREEMENT TO BE RECORDED AFFECTING RE,J5 PROPERTY
THIS AGREEMENT is entered into this day of , 1998,
by and between the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a public
body, corporate and politic (".Agency"), and WARMINGTON OLD TOWN
ASSOCIATES, L.P., a California limited partnership, ("Developer'')
with reference to the following:
A. Developer is the fee owner of record of that certain real
property (the "Property") located in the County of Orange, State of
California as described in the attached Exhibit A. The Property is
referred to in the "DDA" (defined in paragraph "C" hereof) as the
Site.
..
B. The Property is located in the Town Center Redevelopment
Project Area (the "Project") and is subject to the provisions of
the Redevelopment Plan for the Project adopted by OrdinanceNo. 701
and amended by Ordinances No. 855, 1021 and 1141 by the City
Council of 'the City of Tustin. Agency has full power and
jurisdiction in respect to the Property pursuant to the
Redevelopment'Plan.
C.. Agency and Developer have entered into a Residential
Project Disposition and Development Agreement dated as of
1998 concerning the development and use of the
,
Property (the "DDA") which DDA is on file. with Agency as a public.
record and is incorporated herein by reference and which DDA
provides for the execution and recordation of this document. Except
as otherwise, expressly provided in this Agreement, all terms shall
have the same meanings as set forth in the DDA.
NOW, THEREFORE, AGENCY AND DEVELOPER AGREE AS FOLLOWS:
1. Developer covenants, by and for itself and any successors
in interest, that it shall be bound by the terms, conditions,
covenants and restrictions as outlined and detailed in the DDA and
the Redevelopment Plan.
~ - 2. Developer covenants, bY and for itself, and any successors
in interest, that there shall be no discrimination against or
segregation of any person or group, of persons on account of race,
color, creed, religion, sex, marital status, age, disability,
national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the Site, or any residential
uses developed on the Site, nor shall. Developer for itself or any
person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of
homeowners, tenants, lessees, subtenants, sublessees or. vendees of
the Site. The foregoing covenants shall run with the land..
Developer and its Successors in interes~ shall refrain from
restricting the rental.; sale or'lease (including sublease) of the
Site, or any residential units developed on the Site, on the basis
of race, color, creed, religion, sex, marital status, age,
disability,.national origin or ancestry of any person. All deeds,
leases or contracts for the sale, lease, sublease, transfer, use,
occupancy,- tenure, or-enjoyment of the Site or any portion~thereof,---
including any residential units developed on the Site, shall
contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
se
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: (1) there shall be no
discrimination against or Segregation of, any person or
group of persons on account of race, color, creed,
religion, sex, marital status, age, disability, national
origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land
1101-0003
67938_1
Page 2 of 7
September 4. 1998
herein "conveyed, and (2) neither the grantee himself or
herself, nor any person claiming under or through him or
her, shall 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."
In leases: "The lessee herein covenants by. and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through him or her, and this lease is made and
accepted upon and subject to the following conditions:
C ~
"There shall be no discrimination against or segregation
of any person or group of persons on account of race,
color, creed, religion, sex, marital status, disability,
age, ancestry or national origin -in the leasing,
subleasing, transferring, use, occupancy, tenure or
enjoyment of the premises herein leased nor shall the
lessee himself or herself, or any person claiming under
or through him or her, establish or permit any such
practice or practices of discrimination or segregation
with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or
vendees in the premises herein leased."
In contracts: "There shall be no discrimination against
or segregation of, any person, or group of persons'on
account of race, color, creed, religion,, sex, marital
status, age,' disability, ancestry or national origin, in
the sale, lease, sUblease, transfer, use, occupancy,
tenure or enjoyment of the premises, 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 premises. The foregoing provisions shall
be binding upon and shall obligate the contracting party
or parties and any subcontracting party or parties, or
other transferees under this instrument and shall be
covenants running with the land."
3. The Covenants established in this Agreement shall,
without regard to technical classification and designation, be
binding on Developer and any successor in interest to the Site or
any 'part thereof for the benefit and in favor of Agency, its
successors and assigns, and the City. Such covenants shall survive
the issuance, by Agency, of the Certificate of Compliance described
1101-0003
67938_1
Page 3 of 7
Final
September 4. 1998
in the DDA. Notwithstanding the foregOing, however, once Developer.
has complied with all obligations under the DDA, the Certificate of
Compliance (as defined in the DDA) has been recorded, and Developer
has closed escrow for the sale of each unit to be sold under the
DDA, Developer shall have no further liability hereunder.
Developer's liability with respect to the enforcement of covenants
pertaining to the individual units sold shall earlier terminate as
provided in .Section 10C of the DDA.
4. The Covenants, insofar as they relate to
antidiscrimination and non-segregation, shall remain in effect in
perpetuity. The other Covenants shall expire on November 22, 2016.
IN WITNESS WHEREOF, Agency and Developer has executed this
Agreement.
Dated:
"Agency"
TuSTIN- COMMUNITY REDEVELOPMENT-
AGENCY, a California community
redevelopment agency
APPROVED AS TO FORM:
By:
Thomas R. Saltare!!i, Chairman
By:
Lois E. Jeffrey,
Agency Counsel
ATTEST:
Recording Secretary
"Developer"
Dated:
WARMINGTON
L.P., a
partnership
OLD TOWN ASSOCIATES,
California- limited
By: Warmington Homes California, a
California corporation, its
general partner
By:
Brian L. Sinderhoff,
President, Southern
California Division
1101-0003
67938_1
Page 4 of 7
Final
September 4. 1998
..
STATE OF CALIFORNIA
COUNTY OF
ALL PURPOSE ACKNOWLEDGMENT-
)
) SS:
)
On this day of , 19__, before me,
, Notary Public,
personally appeared
Name(s) of Signer(s)
personally known to me - OR
proved to me on the basis of satisfactory evidence to be the
person (s) whose name (s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that
by his/her/their signature (s) on the instrument the person(s),
or the entity upon behalf of which the person (s) acted,
executed the instrument.
Witness my hand and official seal.
NOTARY S~_3LL
Signature of Notary
CAPACITY C~ BY SIGNER:
Individual (s)
Corporate
Officers
Title (s)
Partner (s)
General Partner of a Limited
Partnership
Attorney- in- Fact
Trustee (s)
Subscribing Witness
Guardian/Conservator
Other:
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies)
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title or Type of
Document:
Number of Pages: Date of Document:
Signer (s) Other Than Named Above:
1101-0003 Final
67938_1 Page 5 of 7 September4,1998
STATE OF CALIFORNIA
COUNTY OF
~LL PURPOSE ACKNOWLEDGMENT
)
) SS:
)
On this day of , 19 , before me,
, Notary Public,
personally appeared
Name(s) of Signer(s)
personally known to me - OR
proved to me on the basis of satisfactory evidence to be the
person(s) whose name (s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(les), and that
by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
· ..
- executed the instrument. ~
Witness my hand and official seal.
NOTARY SEAL
Signature of Notary
CAPACITY CLAIMED BY SIGNER:
Individual (s)
Coz?orate
Officers
Title (s)
Partner (s)
General Partner of a Limited
.... Partnership
Attorney- in- Fact
Trustee (s)
Subscribing Witness
Guardian/Conservator
Other:
SIG~TER IS REPRESENTING:
Name of Person(s) or Entity(les)
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title or Type of
DoCument:
Number of Pages: Date of Document:
Signer(s) Other Than NamedAbove:
~o~-ooo3 Page 6 of 7 September4.1998
67938_1
EXHIBIT A
LEGAL DESCRIPTION
That portion of that land in the City of Tustin, County of Orange,
State of California, as described' in Grant Deed recorded January
27, 1989, as Instrument No. 89-049195, Official Records of said
county, described as follows:
Beginning at a point in the Southeast line of said land,
distant North 40°40'18'' East 116.26 feet, along said
Southeast line from the most Southerly corner of said
land; thence North 47°59'01'' West 274.61 feet, to the
Westerly boundary of said land; thence along said
Westerly boundary and the .Northerly and Southeasterly
boundaries of said land the. following courses: North
0°32'57'' East-245.41 feet, South 89°25'52'' East-358.65
feet to a tangent curve concave Southerly having a radius
of 88.00 feet, Easterly 47.97 feet along said cur~e
through a central angle of 31°13'56'' to a reverse curve
concave Northerly having a radius of 50.00 feet,
Northeasterly 74.88 feet along said curve through a
central angle of 85°48'08'' to a non-tangent curve concave
Northerly having a radius of 300.00 feet, a radial line
to the beginning of said cur~e bears South 4°08'41" East,
Northeasterly 105.26 feet along said curve through a
central angle of 20°06'11" to a reverse .curve concave
Southeasterly having a radius of 240.00 feet,
Northeasterly 5.61 feet along, said curve through a
central angle of 1°20'25'', non-tangent from said curve
South 89°25'52" East 13.62 feet, and South 40°40'18''. West
597.71 feet to the Point of Beginning.
1 lOl-OOO3
67938_1 Page 7 o f 7
" [INTENTIONALLY OMITTED] ·
Attachment 10 to DDA
1101-03
CERTIFICATE OF INSURANCE
Attachment 11 to DDA
11Ol-03
66~26_~
CITY OF TUSTIN REDEVELOPMENT AGENCY
CERTIFICATE OF INSURANCE AND DESIGNATION OF NAMED ADDmONAL INSURED
NO MODIFI~ ...3NS OR ADDITIONS MAY BE MADI- THIS FORM
TO: CiTY OF TUSTIN REDEVELOPMENT AGENCY .PROJECT:
P.O. Box 3539'
Tusfin, CA 92681-3539
I COMPANIES AFFORDING COVERAGE
(MUST HAVE BEST'S RATING OF AT LEAST A, VII)
NAME AND ADDRESS OF INSURED CONTRACTOR: Company Letter A:
Company Letter B:
Company Letter C:
NAME AND ADDRESS OF INSURANCE AGENCY: Company Letter D:
Company Letter E:
Company Letter F: '
TEis certifies that the policies of insurance listed below have been issued to the Insured name above, are in force at this time, that the City of
Tustin and City of Tusfin Redevelopment Agency are nathed as an additional insureds thereon as respects claims arising in connection with
the Project named above and that such insurance shall be 15rimary with respect to any other insurance in force procured by the City or the RDA.
Co. Policy Policy
Ltr. ' Type of Insurance Policy Number Effective Date Expiration Date All Limits In Thousands -
,
GENERAL LIABILITY General Aggregate $
[ ] Commercial
General Liability Prods-Comp/Ops Agg. $.
[ ] Occurrence Basis
[ ] Owner's & Contractors' Pers. & Advg. Injury $
Protective Each Occurrence $
[ ] Broad Form Prop. Damage
[ ] Explosion, Collapse, Fire Damage
Underground Hazards (AnY One Fire) $,
Medical Expense
(Any One Person) $
AUTOMOBILE LIABILITY CSL $
[ ] Any Auto
[ ] Ail Owned Autos Bodily Injury
[ ] Scheduled Autos (Per Person) $.
[ ] Hired Autos
[ ] Non-Owned Autos Bodily Injury
[ ] Garage Liability' (Per Occurrence) $
Property $.
EXCESS LIABILITY EACH OCCURRENCE AGGREGATE
[ ] Umbrella Form $. $.
[ ] Other than Umbrella Form
WORKERS' COMPENSATION STATUTORY
AND EMPLOYER'S LIABILITY $. Each Accident
~ Disease-Policy Umit
$, Disease-Each Employe~
OTHER [ _
Description of Operations/Locations/Vehicles/Special Items:
It is certified that a waiver of subrogation is hereby issued to the City of Tustin and City of Tustin Redevelopment Agency as pertains to the
terms of all Workers Compensation insurance. The issuing company will give thirty (30) days written notice to the City and the RDA prior to
modification or cancellation.
DATE ISSUED:
_~ Authorized Representative of the above-named insurance company(les)
RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE
purchase.
(b) "Appraiser" means an appraiser who is an MA! member of the American
Institute of Real Estate Appraisers or a SRPA member of the Society of Real Estate
Appraisers (or in case such professional designations are modified or diScontinued, the
most nearly equivalent successor designations).
(c) "Business Day" means a day other than a Saturday or Sunday on which
banks located in the county seat of the county in which the Residence is located are not
required or authorized to remain closed.
(d) "I~MR Unit" means the Residence, which has been designated as a
below-market rate unit by Section 4 of this Agreement.
(e) "Agen _cy" means the Tustin Community Redevelopment Agency, a
California redevelopment agency.'~
(f) "Designee" means a government or nonprofit organization which the
An~nr,u h~ Hc,~innnfRd tn hecnme the ODtionee pursuant to Section 7.
(n) "j=urchase Option" means the option to purchase granted by the Owner,
as optionor, to the Opfionee, as optionee, by this Agreement.
(o) "Residence" means the real property described on Exhibit A, including ali
improvements and appurtenances.
(p) "Transfer" has the. meaning stated in Section 8.
· Section 3.
Agreement.
Recitals. The following recitals of fact are a material part of this
(a) WHEREAS, the Agency has developed a program to provide housing
opportunities to Persons and Families of LOw and Moderate Income (as that term is
defined in Health & Safety Code Section 50093) to be offered for sale on terms that are
better than those otherwise prevailing in the market;, and
- -.- · (b) wHER~s, the inten~ of.the Agency is to preserve the affordability of the
homes for Persons and Families of Low and Moderate Income for as long as possible;
(c) NOW, THEREFORE, in consideration of the benef-rts received by the
Owner, and for other good and. valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, and intending to be bound, the Owner and the Agency
·
agree as follows: '
Section 4: The Residence..The Residence which is the subject of this
Agreement has a street address of
,
and its legal description is set forth in "Exhibit A" to this Agreement. The Residence is
hereby designated as a below-market rate unit (the "BMR Unit") and shall be subject to
the terms and conditions herein set forth.
Section 5. Owner Repre~entati0ns and Warranties. The Owner represents
and warrants to the Agency that the financial and other information previously provided
- '- to the Agency by the Owner for the purpose of qualifying to purchase the Residence
was true and correct at. the time it was given and remains true and correct as of the
date of this Agreement.
Section 6. Resale Restrictions. The deed by which the Owner is acquiring the
Residence, and which is being recorded concurrently herewith, contains certain
restrictions which prohibit the Owner from selling the Residence, except on the terms
and provisions stated therein. These restrictions are covenants running with the land
that terminate on the earlier to occur of:. (1) November 22, 2016, (2) payment by the
Owner to the Agency of a certain amount 'as stated therein, (3) the date of any
assignment, to the Department of. Housing and Urban Development, of both (a) a note
1101-00003
which is (i) payable to-any institutional lender and (ii) secured by a deed of trust that has ·
first priority over all other deeds of trust affecting the Residence, and (b) such deed of
trust, (4) the date on 'which the Residence is conveyed by trustee~s deed pursuant to
foreclosure of the deed of trust of any institutional lender whose deed of trust has first
priority over all other deeds of trust affecting the Residence, or (5) the date of any deed-
in-lieu of foreclosure pursuant to which the Residence is conveyed to any institutional
lender whose deed of trust has first priority over all other deeds of trust affecting, the
Residence. This Agreement is designed to protect the Agency's interest in the
Residence and to .help the Agency maintain the supply of affordable housing, in the
event of such foreclosure or deed-in-lieu of foreclosure.
Section 7. Purchase O_Dtion. The Owner hereby grants to the Agency, as
optionee (the "Optionee"), an option to purchase the Residence (the "Purchase
Option") on the terms of this Agreement. The Agency may designate a governmental
or nonprofit organization (the "Designee") to exercise the Purchase Option. The
Designee When so designated shall then be the Optionee. The Agency or its Designee,
as-the case.may.be~ may assign the Purchase. Option .to an individual private buyer Who
meets the Agency's eligibility' qualifications, who shall then become the Optionee. After
the exercise of the Purchase Option by the then Optionee in the manner hereinafter
prescribed, the Optionee may assign the Purchase Option to any substitute individual
private buyer who meets the Agency's eligibility requirements and is approved by the
Agency; provided, however, that such subsequent assignment shall not extend any time
limits contained herein. Upon approval by the Agency, such substitute buyer shall
become the Optionee. The Agency shall give the Owner notice of any designation of a
Designee. The Agency,' the Designee or the Optionee, as the case may be, shall give
the Owner notice of any assignment to an Optionee. in addition to giving notice to the
Owner, any designation of a Designee or assignment by the then Optionee of the
Purchase Option shall be by a wdtten instrument executed and acknowledged by the
parties, in recordable form, which shall be recorded.
Section 8. Transfer by Owner.. Any attempt by the Owner to make a
Prohibited Transfer of title to or any interest in the Residence in violation of this
Agreement shall be void and subject to exercise by the Optio.nee of the Purchase
Option described in Section 7, ......... - ..............
'"Transfer" means any voluntary or involuntary sale, assignment or transfer of
ownership of or any interest in the Residence pursuant to either (1) deed-in-lieu of
foreclosure given to an institutional lender whose deed of trust has first pdority over all
other deeds of trust affecting the Residence, or (2) foreclosure of the deed of trust of
any institutional lender whose deed of trust has first pdority over all other deeds of trust
affecting the Residence. Any Transfer without satisfaction of the conditions of this
Agreement shall be deemed a "Prohibited Transfer".
'Section 9. ProCure on Sale. VVhenever the Owner of the Residence
1101-0ooo3
Jul~ 28,
intends to make a Transfer of title to or any interest in the Residence which, unless the
Owner complies with this Section 9, would be a Prohibited Transfer, the Owner shall
notify the Optionee to that effect The.Optionee, ,upon receipt of said notice, shall then
have the right to exercise its Purchase Option by delivery of notice to the Owner'of such
exercise at any time within thirty (30) days from the receipt by the Optionee of such
written notice from the Owner of intent to sell or otherwise Transfer the Residence.
If the Optionee exercises its' right to purchase the Residence, closing shall be
through an escrow with the title insurance company issuing the owners title insurance .
policy required by Section 11 'of this Agreement, utilizing the form of escrow agreement
customarily used by such escrowee in residential transactions in the City of Tustin,
modified to the extent necessary to conform to this transaction. The Closing shall be
within sixty (60) days of the opening of escrow by both parties. The escrow shall be
Opened upon delivery'by the Opfionee to the Owner of notice of the Opfionee's exercise
of the Purchase .Option or as soon thereafter as 'possible. In the event the Opfionee
decides to assign the Purchase Option, the Opfionee may postpone opening of escrow
· ~-~unfil selection of the.new Opfionee pursuant to.Section 7, or as soon thereafter as ...
possible, provided that the opening of the escrow shall occur no later than thirty (30)
business days after the Owner is notified by the OPtionee of the Optionee's exercise of
its Purchase Option. In the event the Optionee postpones opening of escrow and is
unable to select such an assignee, the Opfionee retains the fight to open escrow and
complete the purchase provided that such escrow is opened within thirty (30) business
days after the Owner is notified by.the Opfionee of the Opfionee's exercise of its
Purchase Option and the sales transaction is completed within ninety (90) days from
the Owner's notice of intent to sell.
Up to ten (10) days before close of escrow, the Owner may give notice to the
Optionee of the Owner's intent to terminate the escrow. The Optionee shall retain the
right by notice to the Owner to complete the purchase, of the Residence for an
additional pedod of (10) days commencing from the date of receipt of notice of the
Owner's intent to terminate the escrow.
Section 10. Transfer by Owner if Purchase Option is not exercised. In the
- -' event the Optionee does not exercise its-PurchaSe Option' within 'thirty (30)'days of the
Owner's notice pursuant to Section 9, the Owner may proceed to Transfer the
Residence by deed-in-lieu of foreclosure and upon such Transfer the provisions of
Section 18 below pertaining to subordination shall'apply.
Section 11. Purchase Pdc,~: Owner's Warranties; q-rUe Insurance. (a) Closing
costs and title insurance shall be paid pursuant to the custom and practice of the
Agency at the time of the opening of such escrow. Atthe Closing the Owners shall
fumish the Opfionee an ALTA owner's residential title insurance policy, subject to the
title insurance company's standard exclusions from coverage, special exceptions for
current taxes and assessments not yet due, and such matters (other than taxes,
1101-00003
Jul~ 28. 1998
assessments, and encumbrances created or suffered by the Owner who signed this.
Agreement and all those claiming under that Owner) which were exceptions to title at
the time of recordation of the deed described in Section 6 above. At the Closing Owner
shall convey title to the Optionee or the Opfionee's nominee by grant deed which
warrants title against matters created or suffered by the Owner and those claiming
under the Owner. ...
(b) The purchase price (the "Purchase Price") of the Residence shall be fixed
at the lower amount arrived at via the following two methods.
(i) The Optionee shall have an appraisal made by a neutral
professional Appraiser of its choice to establish the market value.
The Owner may also, at Owner's own expense, have an appraisal made by a
neutral professional Appraiser of the Owner's choice to establish the market value, if
agreement cannot be reached, the average of the two appraisals shall be deemed to be
the market value. - ............
(ii)
($ )
Dollars plus the amount of any Prepayment Fees paid by the Owner who initially
entered into this Agreement at the time that Owner purchased the Residence (base
price), plus an amount, if any, to compensate for any increase in the Index. For that
purpose, the Index prevailing on the date of the 'purchase of the Residence by the
Owner who initially entered into this Agreement shall be compared with the latest Index
available on the date of receipt by the Optionee of the Owner's notice of intent to sell.
The percentage increase in the Index, if any, shall be computed and the base price
shall be increased by that percentage; provided, however, that the price in no event
shall be lower than the purchase price paid by the selling Owner when he purchased
the Residence.
This adjusted price shall be increased by the value of any documented,
permanent capital real estate or fixed improvements approved by the Agency.
No pdce adjustment will be made exCept upon presentation to the Agency of
written documentation of all expenditures made by the Owner for which an adjustment
is requested.
(c) Any sale price determined through the use of the method described
in Section 1 l(b)' (ii) (base pdce adjusted by the Index and value of improvements,
appurtenances, fixtures or equipment added) shall be adjusted by decreasing said price
by an amount to compensate for deferred maintenance costs, which amount shall be
determined as follows: Upon receipt of notice of the Owner's intent to sell, the
Optionee shall have fifteen (15) days to determine whether any violations of applicable
1101-00003
July 28, 1998
building, plumbing, electric, fire or housing codes or any other provisions of Municipal
Code exist. In the event deficiencies are noted, the Optionee shall obtain estimates to
cure the observed deficiencies. The Owner shall cure the deficiencies in a reasonable
manner acceptable to the Optionee within forty-five (45) days of being notified of the
results of the inspection, but 'in no event later than close of escrow. Should the Owner
fail to cure such deficiencies pdor to the scheduled date of close of escrow, at the
option of the Optionee, exercised on or before-closing, the escrow may be closed, title
passed and money paid to the Owner subject to the condition that such funds as are
necessary to pay for curing such deficiencies (based upon written estimates obtained
by the Optionee) shall be withheld from the money due the Owner and held by the
escrowee holder for the purpose of curing such deficiencies. The Optionee shall cause
such deficiencies to be cured and upon certification of completion of work by the
Agency, the escrowee shall utilize such funds to pay for said work. Any remaining
funds shall be paid to the Owner. No other payment shall be due to the Owner.
(d) in no event shall the Agency become in any way 'liable to the
Owner,-nor become obligated in any manner to any other party, .by. reason of the..
assignment of its Purchase Option, nor shall the Agency be in any way obligated or
liable to the Owner for any failure of the then Optionee to consummate a purchase of
the Residence or to comply with the terms of the Purchase' Option.
(e) .Until such time as the Optionee's Purchase Option is exercised,
waiVed, or expired, the Residence shall not be Transferred, as defined in Section 8
above, except with the express wdtten consent of Agency or its Designee, which
consent shall be consistent with the Agency's goal of creating, preserving, maintaining,
and protecting housing for Persons and Families of Low and Moderate Income.
Section 12. Termination of Purchase ODtion. The provisions set forth in this
Agreement relating to the Optionee's Purchase Option shall terminate and become void
automatically on November 22, 2016.
Section 13.. Default and FOreClosure. A request for notice of default and any
notice of sale under any deed of trust or mortgage with power of sale encumbering the
Re%idence shall be recorded by the Agency, any Designee and.any other Optionee. '-
Any notice of default given pursuant to Civil Code Section 2924b, as amended, shall
constitute an Owner's notice of intent to sell under Section 9 of this Agreement, and the
.Optionee may exercise its Purchase Option pursuant to the provisions of this
Agreement; provided however, that, notwithstanding any language contained in this
Agreement to the contrary, with regard to the rights of the lien holder, the Optionee
must complete such purchase no later than the end of the period established by
California Civil Code Section 2924c for reinstatement of a monetary default under the
deed of trust or mortgage.
in the event of default and foreclosure, the Optionee shall have the same right as
1101-00003
July 28, 1998
the Owner to cure defaults and redeem the Residence prior to foreclosure sale. Such
redemption shall be subject to the same fees, charges and penalties which would
otherwise be assessed against the Owner. Nothing .herein shall be construed as
creating any obligation on the part of the Agency to 'cure any such default, nor shall this
right to cure and redeem operate to extend any time limitations in the default provisions
of the underlying deed of trust or mortgage.
in the event that no request for notice is recordedl the Optionee's Purchase
Option shall run from the date the notice of default is given to the Owner, unless the
Agency then has a deed of trust of record affecting the Property, in which case the
Optionee's Purchase Option shall run from the date the notice of default is served on
the Agency as a junior iienhoider pursuant to Civil Code Section 2924b, and any such
purchase must be completed within the pedod established in this Section 13. in the
event the Opfionee elects not to exercise its dghts to purchase upon default, and a
foreclosure sale is 'consummated, any surplus proceeds to which the Owner may be
entitled following foreclosure under California state law shall be paid as follows: After
any-required payment of encumbrances, that portion of surplus, if any, up to but not
exceeding the net amount that the Owner would have received after any required
payment of encumbrances-under the formula set forth above had the Optionee
exercised its dght to purchase the Residence on the date of the foreclosure sale, shall
be paid to the Owner on the date of the foreclosure sale; the balance of surplus, if:any
shall be paid to the Opfionee. Notwithstanding the foregoing, however, if the Agency
has a deed of trust of record at the time of such foreclosure, and is paid the full amount
owing under such deed of 1~'ust and the note secured thereby, then the Agency shall be
entitled t° no additional payment under this Section 13.
In the event that the Optionee does not elect to purchase the Residence
pursuant to the provisions of this Section 13 and the Residence is sold through
foreclosure, the provisions of Section 18 below pertaining to subordination shall apply.
Section 14. Distribution of Insurance and Condemnation Proceeds. In the
event that the Residence is condemned or destroyed (or in the event that the
Residence consists of a unit in a condominium 'project and the condominium project is
destroyed and insurance proceeds are distributed to the Owner, instead'of being used
to rebuild', or in the event of condemnation, if proceeds thereof are distributed to the
Owner, or in the event of termination of the condominium, liquidation of the association
and distribution of. the assets of the association to the members thereof, including the
Owner), any surplus proceeds from insurance or condemnation so distributed remaining
after payment of encumbrances on the Residence shall be distributed as follows:
That portion of the 'surplus up to but not to exceed the net amount that the
Owner would have received under the formula set forth above had the Optionee
exercised its Purchase Option on the date of the destruction, condemnation valuation
date, or liquidation, shall the distributed to the Owner, and the balance of such surplus,
1101-00003
July 28. 1998
.
if any, shall be distributed to the Optionee. Notwithstanding the foregoing, however, if
the Agency has a deed of trust of record at the time of such condemnation or
destruction, and is paid the full amount owing under such deed of trust and the note
secured thereby, then the Agency shall be entitled to no additional payment under this
Section 14.
Section 15. Notice of Prohibited Transfer. Within thirty (30) days after receiving
notification of a Prohibited Transfer, the Opfionee will give written notice to the Owner,
specifying the nature of the Prohibited Transfer. If the violation is not corrected to the
satisfaction of the Optionee within the (10) days after the date of the notice, or within
such further time as the Optionee determines is necessary to correct the violation, the
Optionee may declare a default under this Agreement. Upon the declaration of a
default, the Opfionee may apply to a court of competent jurisdiction for specific
performance of this Agreement, for an injuncti .on prohibiting a proposed sale or transfer
in violation of this Agreement, for a declaration that the Prohibited Transfer is void, or
for any such Other relief as may be appropriate.
- -.
·
Section 16. Attorney Fees and Costs. if any action is b~0ught to enforce the
terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and costs.
Section 17. Controlling Agreement. The Owner covenants that the Owner has
not, and will not execute any other agreement with provisions contradictory to or in
opposition to the provisions hereof, and that in any event, the Owner understands and
agrees that this Agreement shall control the rights and obligations between and among
the parties.
Section 18. Subordination; A stated in Sections 10 and 13 above, in the event
of the Optionee's failure to timely exercise its Purchase Option on foreclosure or deed-
in-lieu of foreclosure on the terms stated herein: (1) This agreement and option is
subordinate to any first deed of trust or mortgage on the Property made by or held by
an institutional lender or investor;, and (2) Any party, and its successors and assigns,
receiving title to the Property through a trustee's sale, a judicial foreclosure sale or deed.
in-11eu of foreclosure, of such deed of trust or mortgage; and any conveyance of transfer
thereafter, shall receive title free' and clear of the provisions of this agreement and
option.
Section 19. Severability. if any one or more of the provisions contained in this
Agreement Shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, then such provision or provisions shall be deemed severable from the
remaining provisions contained in this Agreement, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision(s) had never been
contair~ed herein.
1101-00003
Jul~ 28. 1998
Section 20. Time of the Essence. Time is of the essence of this entire
Agreement. VVhenever under the terms of this Agreement the time for performance
falls on a day which is not a business day, such time for performance shall be on the
next day that is a business day. -
Section 21. ..Notices. All notices required herein shall be in writing and shall be
considered as given when personally delivered or one business day following the day
on which notice is delivered to Federal EXpress or similar ovemight delivery service with
all delivery charges paid, addressed to the parties as follows:
If to Agency:
.... if to Owner:.
TUSTIN COMMUNITY
REDEVELOPMENT AGENCY
Attn.:'Assistant Executive Director
300 Centennial Way.
Tustin, CA 92780
If to Optionee:
(other than
the Agency)
at the address specified in the
designation or assignment required by
Section 7.
The address of a party for notices may be changed bY that party's designation to
all other parties of the new address and the recording of the designation, which shall
include the recording reference of this Agreement and the legal description of the
Property, as shown on Exhibit A.
Section 22. Covenants a8 to Use of and Title to the Residence. The Owner
covenants'and agrees with the Agency that the Owner Will use and maintain the
Residence as a single family residence and Will perform all obligations of any
consensual lien encumbering the Residence, until purchase by the Optionee pursuant
to this Agreement or Termination of this Agreement.
Section 23. Ca_otion8 and Pronq)~ns. The captions and headings of the various
Sections of the Agreement are for convenience only, and are not to be construed as
confining or' limiting in any way the scope of intent of the provisions hereof. Whenever
the context requires or permits, the singular shall include the plural, the plural shall
include the singular, and masculine, feminine and neuter shall be freely
interchangeable.
1101-O0003
Ju~ 28. 199~
l0
Section 24. Running ¢ Benefits and Burdens. All provisions of this Agreement,
including the benefits and burdens, run with the land described in Exhibit A and are'
binding upon the heirs, successors, assigns and personal representatives of the parties
hereto and inure to the benefit of the heirs, personal representatives and permitted
successors and assigns of the parties hereto.
Section 25. Construction. The rule of strict construction does not apply to this
Agreement. This Agreement shall be given a reasonable construction so that the
intention of the parties, to create a valid and enforceable Purchase Option and to
prevent any Prohibited Transfer or any use of the Residence in violation of this
Agreement is carded out
, Section 26. Terminetion. This Agreement shall terminate on the earlier of: (1)
conveyance to the Optionee or its nominee pursuant to exercise of the Purchase
Option, (2) acquisition of lJ'Ue through, a foreclosure of any consensual lien to which this
Agreement has been subordinated, following the failure of the Optionee to timely i
exercise its Purchase Option-hereunder,(3) recordation of a deed-in-lieu ofsuch..
foreclosure, following the failure of the Optionee to timely exercise its Purchase Option
hereunder, (4) (a) payment to the Agency of the amounts specified in (i) the deed
referenced in Section 6 above for the release of resale restrictions and (ii) all Agency
'notes secured by deeds of trust affecting the Property, and (b) reconveyance of all
Agency deeds of trust affecting the Property, or (5) termination of the Purchase Option
pursuant to Section 12. Upon termination of this Agreement, on request of the then
record owner of the fee title to the Residence' the Agency and any other Optionee shall
execute,-acknowledge and record a termination of this Agreement. To the extent
permitted by law, any unfulfilled obligations of any Owner shall survive the termination
of this Agreement, but this Agreement shall no longer affect title to the Residence.
IN VVITNESS WHEREOF, Agency and Owner have executed this Agreement.
Dated: ,199 "Agency"
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California community
redevelopment agency
By:
'i-rtle:
Dated:
,., 199
"Owner"
1101-00003
Jub' 28. 199~
3.3.
EXHIBIT "A"
Legal Description
[ESCROW HOLDER: DETACH AND REPLACE]
.. ALL PURPOSE~ AC:KNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
On this day of
,19__, before re_e,
, Notary Public, personally appeared
(name(s) of Signers(s)
personally known to me OR
proved to me on the basis of .satisfaCtory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acl~owledged to me that he/she/they executed the .
same in his/her/their authorized capacity(les), and that by his/her/theE signature(s) on the
insfl'ument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrumenL
Witness my hand and official seal.
NOTARY SEAL
Signature of Notary
ALL PURPOSE ACKNOWLEDGMEN I'
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
On this day of
,19__, before me,
, Notary Public, personally appeared
(nan.(s) of Signers(s)
personally known to me OR
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/am
subsca'bed to the within instrument, and acknowledged .to me bhat he/she/they exemX~d the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the ehtity upon behalf of which the person(s) acted, executed the
instrument.
W'rtness my hand and official seal.
NOTARY SEAL
Signature of Notary
INTRODUCTION TO YOUR NEW' HOME
LIMITED WARRANTY MANUAL
To help you understar, d the many features of your new I~ome, we have prepared
this New Home Limited Warranty Manual. The Manual communicates your warranty
rights, explains our customer service procedures and informs you of your
responsibilities for maintaining and servicing your new home. We are committed to
providing you with prompt service and repair of items in your home covered by your
New Home Limited Warranty.
We hope you will.find the Manual both informative and helpful. We urge you to read
the Manual carefully and completely prior to moving into your new home.
WARMINGTON HOMES
TIM HOGAN, President
TABLE OF COt~hq'S
NEW HOME LIMITED WARRANTY PERIOD ........................ 1
II.
NEW HOME LIMITED WARRANTY COVERAGE ..................... ' 1
A.
Do
E.
F.
G.
H.
I.
J.
K.
L.
M.
Defects Noted on Orientation Tour .......................... 1
Minor Defects ......................................... 2
Roof and Flashings .. ................... . ................. 2
Heating and Air Conditioning .............................. 3
Plumbing System ....................................... 4
Electrical System ............... ' ........................ 5
Concrete and Masonry ' 6
Grading and Drainage ................................... 7
Stucco and Drywall .................................... 10
Doors an, d Windows ...................... · ............... 10
Woodwcrk .......................................... 11
Flooring ............................................. 12
Grouting ~d Caulking .................................... 13
C
!!!.
iV.
GENERAL EXCLUSIONS FROM COVERAGE ....................... 13
MANUFACTURERS' WARRANTIES .............................. 1 ,B
V. NONTRANSFERABILITY ...................................... 18
VI.
TERMINATION OF WARRANTY ................................. 18
Vii. REPAIRS OR REPLACEMENT .................................. 18
VIII. ORIENTATION TOUR ........................................ 18
IX.
Xo
REQUEST FOR WARRANTY SERVICE .................... · ........ 19
A. Scheduling Warranty Repairs ............................. 20
B. Emergency Service .................................... ' 21
PROMPT NOTICE ........................................... 21
!. NEW HOME LIMF['E~ WARRANTY PERIOD
.o
Except as otherwise provided in this New Home Limited Warranty Manual
("Manual"), the term of the Warmington Homes ("Warmington") New Home Limited
'Warranty ("Limited Warranty") is for a period of one year from the close of escrow
or the date you take possession, whichever first occurs. This one year period is
referred to herein as the "Warranty Period".
pLEAsE NOTE: Some items may not be covered for the full Warranty Period. Any
repair made by Warmington shall not extend the warranty Period.
i!o NEW HOME LIMITED WARRANTY covERAGE
Warmington warrants that during the Warranty Period your home will be free from
defects in materials and workmanship.
THIS LIMITED WARRANTY IS THE ONLY EXPRESS WARRANTY WARMINGTON
GIVES. THIS UMITED WARRANTY IS IN UEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED INCLUDING, BUT NOT UMITED TO ANY IMPUED
WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
If Warmington.undertakes an act or repair beyond the limitations or scope of this
Limited Warranty on your home; such act shall not expand the coverage of this
Limited Warranty and shall not obligate Warmington to perform the same or similar
work again on your home.
To help you understand the scope and limitations of this Limited Warranty, this
Section !1 of the Manual.describes: (a) the warranty coverage applicable to each
major component of your home by identifying those features or characteristics of
the component which, constitute defects in materials or workmanship, (b) the
exclusions from coverage for each such component (in addition to the General
Exclusions From Coverage set forth in Section ill of this Manual) and (c) those
features of or char~ges in such component which are considered natural
characteristics or normal occurrenceS of such component and as such are not
defects covered by this Limited Warranty. Warmington urges you to read this
Section carefully and thoroughly.
A. DEFECTS NOTED ON ORIENTATION TOUR
The following defects will be corrected by Warmington only if noted during
your Orientation Tour. (More information regarding the Orientation Tour is
provided in Section VIii herein.)
.
Chipped, cracked, dented or scratched sinks, tubs, shower pans or
bath enclosures.
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Torn, ..gouged, stained, loose or chipped floor tiles, vinyl, wood,
marble, carpeting or other floor coverings.
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Chipped, cracked, or scratched cabinets, countertops, laminates,
ceramic tile, cultured marble or fireplace bricks (except used bricks).
.
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Scratched, cracked or broken window glass, mirrors or light fixtures.
· .
Scratched or dented appliances.
Missing shelves or accessories in appliances, cabinets or medicine
chests.
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Missing or damaged windows, doors or screens or hardware
attached thereto.
8. Gouged or cracked baseboards, mantels or handrails.
9. Chipped, cracked, scratched, smudged or gouged paint or drywall.
10. Broken. cracked or missing luminous ceiling panels.
11. Chipped, cracked, loose or missing grouting and caulking.
12. Excessive broken or crushed concrete in driveway or walkway.
MINOR DEFECTS
During the first thirty (30) days after the close of escrow or the date you take
possession, whichever occurs first, Warmington will make repairs to correct
minor defec:s such as sticking doors, cabinet drawer adjustments, leaking
faucets and s;mi=ar minor problems. After this thirty (30) day period, it will
be your re_..,ons,b~,,ty to make such repairs as part of your normal
homeowner maintenance and such repairs will no longer be covered by this
Limited Warranty.
ROOF AND FLASHINGS
1. Coverage
For the Warranty Period, Warmington warrants that the. roof and
flashing will be free from leakage.
2. Natural Characteristics and Other Exclusions From Coverage
Tile roofs may have variations in color and have minor chips as a
result of the manufacturing, shipment and installation process. These
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charact.e, ristics are normal and are.not defects covered by this Limited
Warranty. Under heavy storm conditions, moisture may penetrate the
attic through louvers and vents; such moisture penetration is to be
expected and is not a defect covered by this Umited Warranty.
This Umited Warranty does not cover damage to the roof caused by
events beyond Warmington's control including, but not limited to,
"acts of God" such as windstorms,, earthquakes and other natural
disasters. This Umited Warranty also does not cover damage caused
by your actions or negligence including, but not limited to, damage
caused by you, your agents or invitee walking on or attaching.
anything to the roof such as antennas, Christmas lights or other
installations. Warmington is not responsible for any water damage
to your personal property Or any other consequential damage
resulting from roof leakage.
HEATING AND AIR CONDmONING
1. Coveraoe
--
For the Warranty Period, Warmington warrants that any air
conditioning and/or heating system included in the sales price of your
.home or purchased as an upgraded feature through our Design
Center was properly installed in accordance with industry standards.
Warmington assigns and passes through to you the manufacturers'
warranties which cover the operation, of the heating and air
'conditioning systems, if your heating or air conditioning system is not
functioning properly, you should contact the manufacturer .- or. the
subcontractor who performs service for such manufacturer.
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Natural Characteristics and Other Exclusions from Coveraqe
. .
The amou'nt of time it takes to heat or air condition your home, and
the maximum temperature the system achieves will vary. State law
dictates the maximum size of heating and air conditioning equipment
allowed; consequently, the equipment cannot be upgraded to a larger
capacity in order to shorten the time needed to heat or cool your
home. If you use the setback feature of your thermostat, allow
enough time for the unit to return the house to the desired
temperature. Depending upon weather conditions, this may take
hours and this is not a system defect ~overed by this Limited
Warranty. You should expect a certain amount of noise from the
heating and air conditioning systems due to air movements,
expansion and contraction of metal ducts, the motor, fan and other
moving parts of the system.
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Every air Conditioner produces condensation, and this condensation
must be provided a mechanism to drain. Sometimes a plastic pipe
will drain condensation to a nearby interior drain, such as a lavatory
drain. If the condensate drain line exists the exterior of your home
near the foundation, it must be allowed a means to drain during your
future landscape improvements. If the condensate drains provided
for such purposes are obstructed, the water will have no place to
escape and may back up and cause damage to your home.
Warmington is not responsible for such damage.
This Limited Warranty does not include any parts of the air
conditioning or heating systems which become defective through
faulty operation, lack of routine maintenance, or any alteration bY you
or your agents. Routine maintenance includes regular cleaning or
replacement of the air filters; failure to clean or replace the air filters
will restrict the air circulation. This Limited Warranty does not cover
inadequate heating or cooling caused by your alteration or
remodelling of the original architectural structure of your home. This
Umited Warranty'only covers the air conditioning and heating system
designed to service the structure as built by Warmington.
PLEASE NOTE: Locations of air conditioning units have been
predetermined by Warmington, and Warmington'is not responsible
for relocating such units to provid.e_ access around the units or to
accommodate the design of your landscaping improvements.
PLUMBING SYSTEM
1. Coveraqe
Except as otherwise provided herein, Warmington warrants that
during the Warranty Period ali structural components of the plumbin9
system will be free from defects in material and workmanship.
Warmington assigns and passes through to you any manufacturer's
warranties covering the water heater and any other parts of the
plumbing system which are "consumer goods"'.
The following components of the plumbing system will be repaired by
Warmington during the first thirty (30) days only of the Warranty
Period: (1) stoppages or blockages (except any blockage or
stoppage, caused by you), (2) faucet, valve or hose bib leaks, (3)
toilet water level adjustments and (4) defective plumbing fixtures,
appliances or trim fittings. Warmington will only repair during the full
Warranty Period those stoppages and blockages (not caused by you)
which are determined to be defects in the structure of .the plumbing
system.
2. NaturaJ'Characteristics and Ott'~r Ex~usions Frgm Coverage.
.
Most houses are equipped with either a 40 gallon or 50 gallon water
heater. Long showers or filling a large tub can deplete the supply of
· hot water and may take an hour or more to restore. Except as
expressly warranted, water pressure and capacity are not covered by
this Limited Warranty. The static water pressure of your home is
designated by the local water supplier. Occasionally, water pressure
may change as other new houses are built Or as water serVices are
added in other areas. Water pressure fluctuations caused by such
increases in water use are not covered by this Limited Warranty.
Hot water flowing through the plumbing fixtures may cause creaks
and pops because the heat causes the pipeline to expand.
Occasionally, water pressure may cause the water lines to clang.
These are normal occurrences and not defects covered by this
Limited Warranty. In two-story and tri-level homes, water traveling in
waste lines can be heard downstairs, especially when a toilet, tub or
shower is being used. This is 'also a normal occurrence and not a
defect covered by this Limited Warranty.
Plumbing'Emergencies
The following conditions are considered emergencies which require
attention within 24 hours:
(a)
Total stoppage or blockage of the sewage System.
(b) A water leak which requires the main water serVice to be shut
off to avoid serious damage to your home and/or furnishings.
If such emergency condition occurs and is covered by this Limited
Warranty, please follow the emergency serVice procedures in Section
IX.B of this Manual.
ELECTRICAL SYSTEM
1. Coveraqe.
e
For the Warranty Period, Warmington warrants that the electrical
system will be free from defective materials and workmanship.
Natural Characteristics and Other Exclusions From Coveraqe
Your electrical system was designed to withstand normal household
use, however, some household appliances may exceed the
designated use of a particular circuit and trip the circuit breaker, if
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the circuit breakers trip frequently, inspect the appliance and the plug,
and determine if the appliance exceeds the capacity of the circuit by
reading the appliance manual. Exterior weatherproof receptacles at
grade level, receptacles located within six feet of sinks and lavatories
and the utility plug in the garage are equipped with groundfault circuit
interrupters ("GFis") to provide protection against electrical shock.
GFis are sensitive devices which can be easily tripped usually due to
overloading or moisture. GFIs can be easily reset by .pushing the
reset button. Such tripping is not covered by this Limited Warranty
unless the tripping is caused by a defect in materials or workmanship.
PLEASE NOTE: The warranty on your electrical, system will be void
if you alter the system, or if ~e system has been damag~ by faulty
appliances, improper operation, overuse or abuse.
CONCRETE AND MASONRY
1. Coverage
For the Warranty Period, Warmington warrants that concrete
floors, driveways and walkways, and brick, stone and other
masonry will be free from excessive cracking (as defined
herein) and settlement under normal use and conditions.
Moderate cracks (1/8" to 1/4" in width) reported during the
Warranty Period will be repaired by Warmington by filling with
a sealant. Major cracks (greater than 1/'4" in width) reported
during the Warranty Period will be investigated by Warmington
to determine the'cause of cracking. Warmington will repair
major cracks either by filling with a sealant or by removing and
replacing a portion of concrete with new concrete at
Warmington's sole discretion. When concrete is replaced, the
new concrete will vary in color and texture, and Warmington
does not guarantee an exact color or texture match. Repairs
covered under this Limited Warranty will, if possible, be made
near the end of the Warranty Period to permit the concrete and
masonry to stabilize.
Natural Characteristics and Other Exclusions Fro.m Coveraqe
All concrete and masonry products will crack or flake to some
degree due to the natural characteristics of the materials and
due to the expansion and contraction of the structure or
underlying soils. It is not possible to eliminate ali cracks in
concrete and masonry. Climate conditions, drainage patterns,
sun exposure, landscape planting, proximity of irrigation and
soil conditions are all factors that affect the expansion and
contraction of concrete and masonry. Hairline cracks in
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concrete and masonry less than 1/8" in width or vertical
displacement are normal and are not covered by this Limited
Warranty. These cracks do not normally indicate a structural
problem or improper installation' requiring replacement.
Warmington will only repair moderate or major cracks (as
defined above) and cracks which Warmington determines are
caused by a structural defect or improper installation.
The finished color and texture of concrete and masonry
products'are affected by temperature, humidity, and material
composition, all of which will vary slightly. If repairs are made,
the color and texture of the concrete and masonry may differ
from' the surrounding area. This variation in color and/or
texture does not affect the strength or quality of the concrete
or masonry and is not considered a defect. Minor blemishes,
indentations, and surface imperfections in the concrete and
masonry are not covered by-this Limited Warranty.
Efflorescence is a white powdery substance which often forms
on concrete and brick, particularly when moisture is present
in surrounding soils. This crystallization is normal, and is not
considered a construction defect. Removal is a homeowner
maintenance item.
Brick is by its very nature irregular in Size and shape and may
have small chips or surface cracks. Such chips or CrackS are.
not considered defects. Brick is porous and may discolor due
to rain, runoff, weathering and use.
This Limited Warranty does not cover any damage (unless
noted on your Orientation Tour) caused by heavy trucks,
machinery, or other unusual heavy loads parked or placed
upon the concrete. Joint crackage will not be repaired unless
the crackage exceeds 1/4" and is considered by Warmington
to be a hazard.
This Limited Warranty does not cover cracks of any size
caused by Your. changing the grading or drainage of your lot
or from your installation of landscaping.
GRADING AND DRAINAGE
1. Coverage
..
For the Warranty Perio~l, Warmington warrants that water will
drain away from your home as designed and certified by
Warmington's civil engineers to provide adequate drainage.
2. NatUral Characteristics and Other Exclu,sions From Coverage
THIS LIMITED WARRANT'Y WILL BE VOID IF YOU CHANGE THE
ORIGINAL GRADING, DRAINAGE OR FILL OF YOUR YARD.
Your lot has been graded with a positive drainage swale in
accordance with the local grading ordinance. This drainage swale
channels water away from your home's foundation and normally
directs the flow of such water from the rear of the yard to the front
and into the street, if your lot has a common drainage swale with the
neighboring lot, water will drain over the boundary of both lots. Zero
lot line homes may have 'to accept water from their neighbor's
backyard and roof. If your yard has a rear upsiope, surface waters
may drain onto your pad or flow into an approved drainage system.
You should be extremely careful not to disturb this positive drainage
swale. You should seek professional advice prior to installing your
landscaping, and particularly before commencing any excavation,
drilling, trenching, or other earth moving activities related to the
installation of retaining walls, pools or any other landscaping
improvements. If this positive drainage swale is modified or
eliminated in any way, this Limited Warranty regarding the drainage
.of your lot will become null and void.
To prevent water from seeping into your home, keep the soil at least
4" to 6" below the level of your floors.with positive drainage away from
your home. Patios added by you should be kept at least one inch
below finish floor level with at least two percent positive drainage
away from your home and should not. block the drainage swale. It
is extremely important that you do not change the drainaoe pattern
around your home.
If you or anyone other than Warmington or Warmington's contractors
change the original grading, drainage or fill of your yard by
landscaping, poudng concrete, moving soil, or any other means
without adequately providing for lot drainage, serious damage may
result to your home and property or the property of your neighbors
including, but not limited to water damage, soil subsidence and
damage resulting from such soil subsidence, and cracks in 'concrete
masonry and floor tiles, and Warmington is not responsible for such
damage.
This Umited Warranty does not cover any water damage caused by
your failure to maintain drainage structures and devices. Rain, wind
and other acts of nature may cause leaves, silt, grass or other debris
to accumulate in drainage devices. To ensure proper operation, you
must periodically inspect the drainage swales and keep them free
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from debris. Failure to maintain the drainage structures and devices
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may cause damage to your home or property, in addition, you may
be held liable for damage to your neighbor's home or property. It is
your responsibility to clean and maintain any and all drainage devices
and structures within your property.
Concrete swales and drainage ditches collect water to control run-
off. You must periodically clean such swales and ditches to permit
water to flow freely through them. Your home may have a subsurface
drainage system. The' system can be installed at various depths and
consists of drainage devices, boxes and pipes which are usually four
to six inches in diameter. This system provides a means by which
Surface or subterranean waters can be dissipated into suitable storm
drainage facilities to avoid saturation of the soils within your property.
This Umited Warranty does not cover the maintenance or repair of
such subdrain system. The effectiveness of these drains is
dependent upon you keeping the inlets to such drain pipes free from
debris.
Area drains collect surface water and direct it to the street or
approved drainage ditch. Dirt swales are often used in the finished
grade to direct water into'the area drain catch basin. Frequently, the
roof gutter and downspout system will feed into the area drain lines.
It is important to preserve the finish grade swales and to keep drain
lines free of dirt, leaves, plant growth or any other obstruction so they
remain free-flowing.
This Limited Warranty does not cover damage caused by expansive
soil conditions. Most soil expands if moisture is introduced, and then
contracts and sometimes cracks upon drying. Before installing your
landscaping, you should seek professional advice regarding the
condition of the soil in your yard and the type of landscaping Which
is compatible with such soil. Excessive rainfall or irrigation may cause
serious damage if expansive soil conditions are present and your
landscaping does not provide for the expansion and contraction of
the soil.
PLEASE NOTE: WARMINGTON IS RESPONSIBLE ONLY FOR THE
INITIAL INSTALLATION OF PROPER GRADING AND SWALES. YOU
ARE RESPONSIBIF FOR MAINTAINING SUCH GRADES AND
SWAI I=S. ANY-DAMAGE, INCLUDING, BUT NOT UMITED TO,
WATER DAMAGE, SOIL SUBSIDENCE AND DAMAGE RESULTING
FROM'SOIL SUBSIDENCE, CRACKS IN CONCRETE, MASONRY
AND FLOOR TILES CAUSED DIRECTLY OR INDIRECTLY BY YOUR
FAILURE TO MAINTAIN THE GRADES, SWALES AND THE
DRAINAGE STRUCTURES AND DEVICES IS NOT COVERED BY
THIS UMITED WARRAN'TY.
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I. STUCCO AND DRYWALL
J~
1. Coveraqe
For the Warranty Period, Warmington will repair moderate and
'major cracks in the stucco, and drywall caused by defects in
material or workmanship. With respect to the drywall only,
Warmington will come to your home to rePair nail pops it
considers extreme one time during the Warranty Period.
During the Warranty Period, Warmington will repair blisters in
tape, excess compound in joints or trowel marks that are easily
observed by' visual inspection.
2. Natural Characteristics and Other Exclusions From Coveraqe
This'Limited Warranty does not cover hairline cracks in the
stucco or other minor cracks caused by the expansion or
contraction of the stucco surface due to changes in the climate
and normal settling of your home. This Limited Warranty does
not cover minOr cracks or seams in the drywall or stucco due
to normal shrinkage of lumber and normal settling of your
home. Such cracks are unavoidable and do not constitute
defects in the drywall or stucco. Discoloration of stucco
caused by Weathering and stains on the stucco caused by the
soil from the grade line up to four feet high are to be excepted.
Warmington is not required to drywall-your garage except in
those places in the garage ceiling or walls adjacent to living
areas in your home. The absence of drywall in your garage
(except adjacent to habitable space) is not a defect covered
by this Limited Warranty.
DOORS AND WINDOWS
1. Coverage
For the first thirty (30) days of the Warranty Period,
War;mington will come to your home once to adjust twisted,
warped, sticking or poorly fitting interior and exterior doors,
windows and weatherstripping. During the Warranty Period,
Warmington will .repair doors with "excessive warpage".
"Excessive warpage" is defined with respect to doors to mean
more than 1/4" warping in the plane of the door Or warpage
to the extent the door is inoperable. During the Warranty
Period, Warmington ~!1 repair garage doors which do not
operate properly.
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2. Natural ~,,3aractedstics and Other Exclusions From Coveraqe
This Limited Warranty does not cover minor warpage of doors
or windows due to natural shrinkage or expansion of
woodwork. New exterior doors and windows may warp slightly
during periods of rapid temperature change, and unless such
warpage is excessive, it is not covered by this Limited
Warranty. It is your responsibility to maintain your exterior
doors and windows, including repairing the weatherstripping
and periodically painting, oiling or varnishing as necessary to
prevent moisture penetration. It is your responsibility to
maintain the caulking around exterior doors and windows to
prevent moisture, wind or dust from penetrating the door or
window. Damage caused by your failure to maintain such
caulking including, but not limited to, warping, separation,
leakage, swelling and lack of paint adhesion, is not covered by
this Umited Warranty. ·
Natural variations in the color or texture of wood doors are not
. considered defects covered-by this Limited Warranty. If you
change the flooring in your home, you may create gaps
between the floor and the door or prevent the door from
opening or closing. Warmington will not close gaps or shorten
doors if such repairs are necessitated by your changing'the
flooring, if you purchase upgraded flooring through the
Chateau Design Center, Chateau will trim doors that rub
against the flooring. Warmington will not repair garage doors
if the repair results from your actions or negligence.
You must keep all window sill channels and drain holes free
from dirt and particles for proper operation and drainage.
Damage resulting from flooding of window sill channels due to
your failure to keep such channel free from debris is not
covered by this Limited Warranty.
WOODWORK
1. Coveraqe
o
For the Warranty-Period, Warmington warrants that the
woodwork will be free from excessive warpage.
Natural characteristics and Other Exclusions From Coverage
Shrinkage or expansion of woodWork is a natural occurrence
which may cause moldings or trim to move out of their original
position, cause hairline cracks or seams to appear in drywall,
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doors.to warp and joints in the woodwork to open. You may
notice movement in walls, floors, ceilings, doors, and windows.
This minor shrinkage and expansion is to be expected and
does not constitute a defect covered by this Limited Warranty.
Other parts of your home and yard containing wood materials
such as fencing, siding and exposed beams and trim have a
natural tendency to crack. They also may vary in color and
show knot holes, Changing humidity may also cause cracks
in paneled doors, mitered casings, hardwood flooring, and
base molding. These cracks do not affect the structural
integrity of your home, are considered natural occurrences and
are not defects covered by this Limited Warranty.
The color of cabinets, oak stained handrails and other
woodwork may be slightly different from samples shown in the
Sales Office, Design Center or the Models. The color of
woodwork will vary with wood grain variations and stain
applications. Warmington does not guarantee exact matching
of color of paint, stains, grains or textures of woodwork in your
home with woodwork displayed in the Sales Office, Design
Center or Models or with other woodwork in your home or any
color changes due to aging, inadequate air circulation or over
exposure to the sun.
FLOORING
1. Coveraqe
For the Warranty Period, Warmington warrants that any flooring
purchased through the Design Center was properly installed
in accordance with industry standards provided, however, that
Warmington will only repair seam popping, scratches, gouges,
tears, stains, and other damage to vinyl, wood, ceramic tile,
marble or carpet floor covering noted on your Orientation Tour.
.
Natural Characteristics and Other Exclusions From Coverag.e.
Resilient floors may show indentation due to floor traffic, or
heavy furniture. Discoloration may occur as a result of
exposure to the sun and certain chemicals. In addition,
expansion and contraction may cause movement of the
subfloor, allowing joints to show. These are normal
characteristics of resilient floors and are not defects covered
by this Limited Warranty. We suggest that you seek the
advice of a professional for maintaining your wood, ceramic,
marble and vinyl floor coverings.
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'As your home settles, particularly during its first year,' you may
notice that floor squeaks appear and disappear. Floor
squeaks cannot be completely eliminated. Weather conditions,
expansion and contraction of wood members, and heavy
furniture play a large part in the magnitude of these squeaks.
Warmington will correct floor squeaks only if we determine'that
they are excessive.
M.
GROLmNG AND CAULKING
1. Coveraqe
If brought to our attention during the Orientation Tour,
Warmington .will touch up the grouting and caulking.
2. Natural Characteristics and Other Exclusions From Coverage
If Warmington makes repairs to the grouting and caulking, it
does not guarantee perfect color matching. Grouting and
caulking will naturally respond to the expansion and
contraction of the materials to which they are applied as your
home settles; this will frequently result in cracking. For
example, minor cracks may develop in the mortar and grout
around areas such as fireplaces., brick veneers and ceramic
tile. These cracks can easily be repaired with tile grout or
sealant from your local home and garden .center and is
considered normal homeowner maintenance not covered by
this Limited Warranty.
PLEASE NOTE: IT IS IMPORTANT THAT YOU REGULARLY
MAINTAIN THE GROUTING AND CAULKING AROUND
WINDOWS, PATIO DOORS, BATHROOM TILES, KITCHEN
COUNTERTOPS, PUll MAN TOPS AND .BATHROOM
FLOORING TO PREVENT WATER PENETRATION.
WARMINGTON IS NOT RESPONSIBLE FOR DAMAGE
CAUSED BY SUCH WATER PENETRATION.
!il. GENERAL EXCLUSIONS FROM COVERAGE
IN ADDmON TO THE EXCLUSIONS FROM COVERAGE CONTAINED IN SECTION
!i ABOVE, WARMINGTON DOES NOT ASSUME RESP(~NSIBILITY FOR ANY OF
THE FOLLOWING, AIL OF WHICH ARE EXCLUDED FROM THE COVERAGE OF
THIS LIMITED WARRAN'i'Y.
Defects in Appliances, Equipment or Other Non-Structural Components of
Your New Home Covered by Manufacturers' Warranties: Warmington has
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(b)
(c)
(d)
(e)
(g)
(h)
assigned these manufacturers warranties to you (See Section IV) and you
should follow ~8 procedures in these warranties if service is required. If you
would like assistance in contacting a subcontractor Or manufacturer, your
Customer Service representative will be happy to assist you.
Consumer Goods: Any product which is considered a "consumer good"
under the Song-Beverly Consumer Warranty Act of 1970 (California Civil
Code Sections-1.790 et seq.). "Consumer goods" include products such as
ovens, ranges, microwave ovens, air condit, ioners, dishwashers, garbage
disposal, ventilating fans, trash compactors and water heaters. Such goods
are normally covered by manufacturers warranties which Warmington has
assigned to you.
Misuse or Neglect: Damage due to ordinary wear and tear, abusive use or
lack of proper maintenance and cleaning of your home.
Work Done by You: Defects in items installed by you or anyone else except
War.rnington and, if requested by Warmington, its contractors or agents..
Acts of God: Loss or injury due to "Acts of God" including but not limited
to earthquakes and windstorms exceeding the force or velocity against
which structures are designed to resist pursuant tO local building codes,
floods, insects and any other elements.
Defects Common to Materials: Defects which are the result of
characteristics common to the materials used such as, but not limited to,
warping and deflection of wood, fading, chalking and checking of paint due
to exposure to the sun, cracks due to drying and curing of concrete, stucco,
drywall, bricks and other masonry, drying, shrinking and cracking of
caulking and weather-stripping, and conditions resulting from condensation
on, expansion or contraction of materials.
Hairline Cracks: Hairline cracks in concrete, drywall, stucco, masonry and
other rigid materials due to normal expansion, contraction and settlement.
A hairline crack as used herein is defined as a crack which is less than 1/8
inch wide.
Painted Surfaces: The color fastness of paint, periodic paint, touch up and
damage to paint caused by condensation. The color fastness of paint will
.vary With exposure to the elements and applications (i.e. paint over paint).
If Warmington performs any paint repairs in connection with repairs covered
by this Limited Warranty, Warmington does not guarantee perfect color
matching. Pedodic paint touch up is the' responsibility of the homeowner
and is not covered by this Limited Warranty. Do not permit sprinklers to
spray the outside surface of your home.
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0)
· (k)
Porcelain Finishes: Slight imperfections in the finishes of kitchen sinks,
lavatory bowls, bathtubs and showers such as small bubbles or dimples in
the finish.
Improper Maintenance of Finishes: Damage caused by your improper
maintenance of the following:
Countertops: Synthetic marble, ceramic tile, and Corian may be used
to cover counters and vanities in your new home. These surfaces are
hard and fairly durable,' but can be scratched by abrasive cleansers
and sharp objects. Use mild cleansers to prevent damage to the
gloss. Placing hot utensils or appliances directly on countertops may
damage the surface.
(2)
Fixtures: You should aVoid using abrasive cleansers on plumbing
fixtures, light fixtures and decorative hardware finishes, because such
cleansers will scratch the finish and may allow corrosion to begin.. To
prevent spotting and discoloration, wipe the fixtures dry after each
use.
(3)
Bathroom Fixtures: Fiberglass tub or shower units, shower pans, and
cultured marble have a clear "gel coat" finish which may be dulled or
removed by abrasive cleansers. Protection of all such surfaces is
considered normal homeowner maintenance and is not covered by
this Limited WarranfY.
Sprinkler Systems: Maintenance of the fire sprinkler system (if your home
is equipped with a fire sprinkler system). You shall be solely responsib!e for
the main[enance of said system, and Warmington shall not be liable for any
property damage or other loss suffered by you arising from improper
maintenance of the sprinkler system or any other acts by you which cause
the sprinkler system .to release water accidentally or to malfunction.
Improper Use or Cleaning of Fireplace: Damage including, but not limited
to, stains and rusting, excessive heat, caused by your using artificial or
synthetic burning materials in your fireplace or your improper cleaning and
maintenance of the fireplace door and assembly. 'if your home is installed
with a prefabricated metal fireplace, you should only burn natural wood in
your fireplace and not any artificial or synthetic products. Most artificial or
synthetic products produce extremely high temperatures and sputtering, and
the fires from such products can cause damage to the fireplace system and
unsightly stains around the outside venting system, if your fireplace doors
are framed with brass trim, the brass must not be cleaned with water,
cleaners or solvents, because such cleaning agents will cause the brass
finish to rust or discolor.
15
(m).
(n)
(o)
LP)
(q)
(r)
(s)
Water infiltrati~n; Water infiltration resulting from, among other things,
dampness in beach areas, condensation in closed bath spaces, blockage
of air conditioning condensation due to homeowner's improvements, flash
floods, abnormally heavy rain, leaks through improperly maintained
windows, excessive landscape irrigation, improper location of irrigation,
flooding of window weep channels during window washing, or flooding of
roof jacks or window weep channels during heavy storms or wind driven
rains, any alternation to the grading of your lot or other events beyond our
control.
Backfill: Depressions 'in backfill of trenches outside your home and beside
the concrete walls, walks or driveways caused by contraction, expansion,
and moisture in the soil. If this 'settling occurs, you should fill those
depressions with dirt and grass seed if appropriate.
Pest Infestation: Pest infestation including, but not limited to, infestation of
termites, rodents, fleas, bees, ants and any other insects, and any damage
caused by such pests.
Rustincl of Wrouqht Iron and Steel Fences: Rusting of wrought iron and
steel fences. A break in the surface of painted wrought iron will enhance
rust. It is your responsibility to periodically paint and otherwise maintain
such !sflces t9 prevent rusting..
Defects visible on Orientation Tour: Some items are easily damaged during
move-!n a,qd Warmington will not be responsible for such items unless the
defects were r~oted on the Orientation Tour report. (Refer to Section I.A
above for ;tem..s Which must be noted at time of Orientation Tour.)
Chanainci Grading and Drainage/Landscaping: Damage caused directly or
ind:,rectly b,/ ir,':groper landscaping or any damage, soil subsidence or
erosion causec by changing the grade, drainage or fill of your yard. This
Limited Warrar:tv does not cover landscaping, if Warmington provides any
landscap;ng on ycur property as part of the sales price of the home, all such
landscaping sha;! become your responsibility, at the earlier of the close of
escrow or the date you take possession.. Many homeowners will desire to
install landscaping which is incompatible with the well-defined swales
provided by Warmington. Any such alterations will relieve Warmington of
any responsibility for grading or drainage under this Limited Warranty.
Improvements Constructed Over Riqht-of-Way: Your title policy, grant deed
and/or Covenants, Conditions and Restrictions may reveal the existence of
right-of-way areas over your property in favor of the county or city. Above
grade, structures (such as planters, fences, pilasters, block walls, exposed
drain outlets or inlets, monuments or other improvements) may not be
allowed in these areas or may require an encroachment permit or
permission from the county or city having jurisdiction over your property.
16-
(u)
(v)
(w)
If you build any improvements over such right-of-way, and the city or county
requests any modifications to your completed, design, Warmington accepts
no responsibility in completing any revisions or corrections to satisfy the city
· or county.
Variations From Items Displayed in Model Homes, Sales Office and Design
Center:. The design of our model homes and the materials in our Sales
Office and Design Center are for illustrative purposes only and are not a
warranty that your home will strictly conform to the model home or the
illustrations and other materials available in our Sales Office or Design
Center. Our intedor designers have attempted to create a beautiful "show
case" home both inside and outside. You will find many helpful decorating
ideas in the models; for example, mirrored wardrobe doors, mirrored
treatments, built-ins, wall-units, fireplaces, balconies, upgraded floor
coverings, Wallpaper, wall textures and window treatments. Such items may
not be included in the sales price of our home. Please check With your
sales representative to determine which features are included in the sales
price of your new home and which are decorator "extras". Due to the heavy
volume of traffic that flows through our model homes, we may install
upgraded floor coverings and window coverages and we may polish
cabinets and handrails to a higher lustre than 'you will find in your home.
There may also be variations from the model homes in the layout and
dimensions of your home. For example, you may notice variations from the
models in the location of electrical, television and telephone outlets, towel
bars and toilet paper holders, registers, smoke alarms, bath fans,
thermostats and wall space dimensions, Such variations are not considered
defects. Warmington reserves the right to substitute materials, equipment
and fixtures of similar or better quality for materials, equipment and fixtures
specified on our plans or as displayed in our models.
Failure to Notify Promptly: Losses resulting from your failure to provide
Warmington with prompt notice of any covered defect and. a reasonable
opportunity to repair such defect.
Failure to Report W'rthin Warranty Period: Defects which are not reported 'to
Warmington within the applicable Warranty Period in the manner set forth
in Section IX below.
Consequential or Incidental Damaqes: Consequential or incidental damages
and/or losses of any kind which may result, directly or indirectly, from
defects covered-by this Umited Warranty inclu, ding, but not limited to,
personal injury or property damage or loss of use or inconvenience.
Expendable Items: Expendable items which have been installed in your
home such as, but not limited to, light bulbs, fluorescent lights, or
weatherstripping.
17
(y)
Bu~der's Plans: 1,..., Limited Warranty does not entit. .~u to receive a qopy
of any building plans or site plans for your home, and-Warmington will not
supply such plans.
iV. MANUFACTURERS' WARRANTIES
Warmington assigns and passes through to you all manufacturers' warranties on
all appliances and other equipment installed in .your home. The following are
examples of such appliances and equipment, though not every.home includes all
of these items and some homes may include items not 'in this list: oven, range,
microwave oven, air conditioner, forced air unit, dishwasher, garbage disposal,
ventilating fan, trash compactor, water heater, fiberglass extedor doors, smoke
detector, electrical and .gas meters and garage door opener. You should contact
the manufacturer or the subcontractor who performs service for such manufacturer
directly if you have a problem with such appliances and equipment.
V. NONTRANSFERABILITY
This Limited Warranty is extended to you only if you are the original buyer and
automatically terminates when you cease to occupy the home. 'It is. not
transferable to subsequent buyers of the home.
VI. TERMINATION OF WARRANTY
Any warranties of Warmington shall be automatically VOID as to any component
of your home or property which you or anyone else (except Warmington and its
subcontractors) has modified, added to or attempted to repair without
Warmington's prior written approval.
Vii. REPAIRS OR REPLACEMENT
Upon receipt of your written request for service, all items covered by this Limited
Warranty will be repaired or replaced at no charge to you. The work will be done
by Warmington or its contractors. The choice between repair or replacement is
Warmington's. Warmington may substitute materials, equipment and fixtures of
comparable value for materials, equipment and fixtures required to be repaired
under'this Limited Warranty. Warmington, in its good faith judgment and at its sole
determination and discretion, will make repairs required under this Limited Warranty
based on current industry standards using appropriate methods and materials. 'If
a particular item covered by this Limited Warranty cannot be repaired, Warmington
may, at its sole discretion, either replace the item or refund the cost of the item.
VIII. ORIENTATION TOUR
Prior to moving into your new home, your sales persons will establish a date and
time for your Orientation Tour. On the scheduled appointment date, a
18
representative from Warmington will meet with you to conduct your orientation of
your home. The representative will tour your home with you and note on two
checklists those items which you believe are unsatisfactory or incomplete.
Separate checklists will be used for "Design Center Items" and "Construction
Items"_ "Design Center Items" include ali items selected by 'you, through the
Design Center. "Construction Items" include all other construction work performed
by Warmington on your new home. If you are not certain whether an item
requiring correction is a Design Center item or a ConStruction Item, please discuss
it with our representative during your Orientation Tour. The correction of any
unsatisfactory or incomplete item must be directed to the proper office at
Warmington. During your Orientation Tour,. you should inspect all visible surfaces
and the electrical, heating, air conditioning and plumbing systems. Be sure to
open and close doors, windows, drawers and cabinets, and test plumbing and
lighting fixtures: If you have any. questions about any item in your new home, ask
our representative.
You must indicate on the Orientation Tour checklist all defects described in Section
I.A of this 'Warranty Manual to ensure correction of such items under this Limited
Warranty.
Warmington will attempt to repair the items listed on the Orientation Tour checklist
which are covered by your Limited Warranty within thirty (30) days of your
Orientation Tour.' However,-some repairs may take longer due to bad weather,
unavailability of parts, lack of access to your home, or other events beyond our
control. To allow us sufficient time to repair such items and other items which
Warmington has agreed to repair within the first thirty (30) days of the Warranty
Period, we ask that you net submit service requests for items in your home
covered by the full Warranty Period until after the first thirty (30) days after the
close of escrow, except in emergency cases.
IX. REQUEST FOR WARRANTY SERVICE'
All requests for warranty service must be submitted in writing on the appropriate
Customer Service Request Form addressed to our Customer service Department
or the Design Center. You may obtain additional. Request Forms from our
Customer Service Department. Your'use of our Customer Service Request Forms
will help expedite the processing of your warranty service request and the
completion of the repair work.
Please submit requests for repair of "Construction Items" on custOmer service
request forms labelled "Warmington Homes Service Request" and requests for
repair of "Design Center Items" on customer service request forms labelled
"Chateau Interiors & Design Service Request". This is necessary because
"Construction Items and "Design Center Items" are administered by different
departments within Warmington. Please fill out the customer service request form
completely, including your telephone numbers at home and work and any other
pertinent information Warmington should have to perform warranty repairs.
19
Warmington proce~'ses all requests for warranty service on a first-come, first-serve
basis except requests of an emergency nature, if you have any questions about
the status of service repairs, please write or call our Customer Service Department.
.A. SOHEDt,IUNG WARRAN'FY REPAIRS;
Once our Customer Service Department receives your written request for
repairs', a Warmington representative will inspect your home and verify .that
the repair work requested is covered by your Limited Warranty. To
accommodate our homeowners, Warmington has two Ways of scheduling
repairS:
1. Warmington Schedules
If you granted Warmington permission on the Orientation Tour
checklist to enter your home in your absence to make repairs,
Warmington will schedule the repair work and let the subcontractor
into your home to complete the repair. If you wish to change your
decision to grant or deny Warmington permission to enter your-home,
this must be sent in writing to the Customer Service Department.
2. You Schedule
If Warmington does not have permission to enter your home, it will
be your responsibility to contact the subcontractor performing the
warranty service and schedule the authorized repair work. You will
be given a copy of the "Work Order" which the Customer Service
Depar*.ment has delivered to the appropriate subcontractor and the
name, address, and phone number of the subcontractor' for your
scheduling use. If you have any problems contacting the
subcontractor and scheduling the repair work, you must notify the
Customer Service Department in writing.
It is your responsibility tO provide access to your home for warranty
repair work, either by granting Warmington permission to enter your
home'in your absence or by scheduling your repairs directly with the
designated subcontractor. Your failure to provide access to your
home shall relieve Warmington of its responsibility for such repairs.
Ali warranty repair work will be performed 7:00 a.m. to 3:30 p.m.,
Monday through Friday, excluding legal holidays. After the repairs
are finished, you will be asked to sign the Work Order form verifying
that the repairs have been completed. All prior requests for repair
service must be completed and approved by you before we will
process your next Customer Service Request Form.
.B. EMER(~E. NCY SERVICE
Request for service on items covered by this Umited Warranty will be
accepted by telephone only in the case of an emergency. An emergency
is defined as a situation that seriously threatens your home, its occupants
or both, for example, (1) major electrical failure or short-out not caused by
utility company failure, (2) plumbing leaks in the walls, floors and ceilings,
(3) complete sewage backup or (4) gas leaks.' in case of an emergency,
you should telephone the appropriate subcontractor directly, if you are not
able to contact the subcontraCtor or you do not know the identity of the
subcontractor, call the Customer Service Department.
If you are unable {o contact the applicable subcontractor or Warmington,
you should seek outside help. If the emergency service was covered by this
Limited Warranty, Warmington will reimburse you for the cost'of the repair
work upon your delivering to the Customer Service Department a copy of
the subcontractor's receipt for payment and proof of explanations that the
repair work is a warrantable item.
x. PROMPT NOTICE
This Limited Warranty is expressly conditioned upon you giving Warmington
prompt notice of any defect in your home and giving Warmington reasonable
opportunity to repair such defect. If you fail to give'Warmington prompt notice and
a reasonable opportunity to repair, Warmington will not be responsible for any
additional repair cost or expense which could have been avoided if you had given
prompt notice and a reasonable opportunity to repair. This provision is intended
as both a condition of the availability of this Limited Warranty and a promise by you
to'limit our.damages by giving Warmington prompt notice and a reasonable
opportunity to repair.
THIS NEW HOME LIMITED WARRANTY IS THE ONLY WARRANTY COVERING
YOUR NEW HOME. WARMINGTON MAKES NO OTHER WARRANTY OR
GUARANTEE, EXPRESS OR IMPLIED, OTHER THAN AS STATED IN THIS
LIMITED WARRANTY MANUAL NO SALESPERSON OR REPRESENTATIVE OF
WARMINGTON HAS ANY AUTHORITY TO ADD TO, MODIFY'OR WAIVE ANY OF
THE PROVISIONS OF THIS LIMITED WARRANTY.
21
oo
·
FORD COMMERCIAL REHABILITATION PROJECT
DISPOSITION AND DEVELOPMENT AGREEMENT
by and among
THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY,
as Agency,
and
THE FORD FAMILY TRUST,
as Owner
and
DEBEIKES INVESTMENT COMPANY, as Developer
1101-03
68265
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September 14, 1998
DISPOSITION AND DEVELOPMENT AGREEMENT
TABLE OF CONTENTS
.Page
Section I SUBJECT OF AGREEMENT ...................................... I
A. PurpOse of Agreement ..................................... I
B. The Redevelopment Plan .................................. I
C. Description of the Site ..................................... 2
D. Parties to the.Agreement ................................... 2
(1)
(2)
(3)
(4)
(5)
Agency ............................................ 2
Owner. ................ · ............................. 2
Developer ....- ...................................... 2
Contractor .......................................... 2
Relationship of Agency to Owner, Developer, and
Contractor .......................................... 3
Section 2 DEFINITIONS .................................................. 4
Secti°n 3 PROHIBITION AGAINST CHANGE IN OWNERSHIP, MANAGEMENT AND
CONTROL OF OWNER OR CHANGE IN DEVELOPER OR CONTRACTOR. 4
Importance of Owner's, Developer's and Contractor's
Qualifications ..; ......................................... 4
Bo
Prohibition Against Transfer of Site ........................... 5
('~)
(2)
General Prohibition ..........· .............. ' ...........5
No Encumbrances Except Mortgages, Deeds
of Trust, Conveyances and Leases-Back
or Other Conveyances for Financing for
Rehabilitation ............ · .................. .. ........ '6
C. Prohibition Against Change in Developer or Contractor ...........6
Section 4 REPRESENTATIONS AND WARRANTIES OF OWNER,
DEVELOPER AND CONTRACTOR ................................ 7
Section 5 REHABILITATION OF THE SITE .................................. 10
A. Description of Rehabilitation Project ......................... 10
B. Plans and Drawings ...: .................................. 11
C. Cost of Site Rehabilitation ......................... ' ........ 11
1101-03 FINAL
68265 J September 14, 1998
Table of Content~-(continued)
Permits and Governmental Approvals ........................ 13
Local.' State and Federal Laws , ............................ 13
F. Schedule of Performance ....... ....' ...... : ................ 13
G. Required Notifications .................................... 14
Section 6 FINANCIAL ASSISTANCE TO OWNER ............................ 15
A.
Purpose of Agency Financial Assistance to
Owner ................................................ 15
S.
C~
Conditions Precedent to Receiving Agency
Assistance : ..................................... ". ...... 15
._
Agency Loan ............................................ 17
(~)
(2)
(3)
(4)
(5)
(6)
Amount ........................................... 17
Forgiveness of Loan ................................. 17
Promissory Note and Deed of Trust ..................... 17
Owner's Repayment ................................. 18
Agency Payment of Loan .Proceeds ............ ......... 19
Records ......' .................. : .................. 20
Section 7 CONDITIONS FOR REHABILITATION CONSTRUCTION .............. 20
A.
Prevailing Wages ........................................ 20
Time Limit for Construction ................................ 20
Required Licenses and Permits ............................. 20
One (1) Year Guarantee .................................. 20
·
Quality of Work and Materials .............................. 21
Clean-up-of Site and Adjacent Areas .......................... 21
Section 8 USES OF THE SITE ............................................ 21
Section 9 MAINTENANCE OF THE SITE ................................... 21
Section 10
CERTIFICATE OF COMPLIANCE ........................... 22
· Section 11
NON-DISCRIMINATION .................................. 23
A. Obligation to Refrain from Discrimination ............. ; ........23
1101-03 FINAL
SS2S5 ii September 14. 1998
Table of Content§-(continued)
Co
Section 12
A.
B.
C.
D.
Section 13
A.
B.
C.
D.
E.
.
Section 14.
A.
B.
C.
D.
Form of 'Non-discrimination and Non-Segregation
Covenants ............................................. 23
Duration of Covenants .................................... 25
INSURANCE AND INDEMNIFICATION ....................... 25
Worker's Compensation, Bodily Injury and
Property Damage Insurance ' 25-
Insurance Endorsements .................................. 26
Provision of Insurance by Contractor .......................... 27
Indemnification .......................................... 27
DEFAULTS, REMEDIES AND TERMINATION ................. 28
. _
Default ' · ' 28
Notice 28
Cure Period 29
Rights and Remedies ....... · .............................. 29
Legal Actions ........................................... 30 .
(1) Venue.. ........................................... 30
(2) Service of ProceSs .................................. 30
(3) Applicable Law ..................................... 30
Termination ............................................ 30
Rights and Remedies Are Cumulative ' 31
Effect of Violation of the Terms and
Provisions of this Agreement ' 32
GENERAL PROVISIONS ................................. 32'
Disputes to be Determined by Agency ........................ 32
Local, State and Federal Laws ............................. 32
Taxes, Assessments, Encumbrances and Liens ................ 33
Rights of Access ........................................ 33
1101-03
68265
FINAL
Iil September 14. 1998
Table of Conten{s (continued)
Page
E.
NotiCes, Demands and Communications Between
the Parties · 33
F. Conflicts of Interest ............. - ......................... 34
Go
Enforced Delay; Extension of Times of
Performance ........................................... 34
Ho
Section 15
A.
Nonliability of Officials and Employees of
Agency ................................................ 35
Inspection of Books and Records ............................. 35
SPECIAL PROVISIONS ................................... 36
.,
o
Successors in Interest .................................... 36
Section 16
ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS ' 36;
Section 17
EFFECTIVE DATE OF THE AGREEMENT .................... 36
1101-03
68265
FINAL
iv September 14, 1998 ·
LIST OF ATTACHMENTS
Attachment I -
Attachment 2 -
Attachment 3 -
Attachment 4 -
Attachment 5 o
Attachment 6 -
Attachment 7 -
Attachment 8-
Attachment 9-
Attachment 10 -
Attachment 11 -
Map of Proposed Parcels
Legal Description
Scope of Rehabilitation
Schedule of Performance
Agency Loan Promissory Note
Agency Loan Trust Deed
Site Plan and Related Drawings
Agreement to be Recorded Affecting Real Property
Hazardous Waste Disclosure
Certificate of Insurance
Rehabilitation Budget
1101-03
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FINAL
September 14, 1998
· . COMMERCIAL REHABILITATION PROJECT
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and among the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a public body, corporate and politic, to wit, a California
community redevelopment agency ("Agency"), the FORD FAMILY TRUST dated September
21, 1984 ("Owner"), DeBeikes Investment Company, a California corporation ("Developer"),
and Warmington Homes California, a California Corporation ("Contractor"). Agency, Owner,
Developer, and Contractor hereby agree as follows:
Section 1 SUBJECT OF AGREEMENT
A. p_u .rpose of Agreement .....
The general purpose of this Agreement is'to promote the implementation and
realization of the objectives of the Redevelopment Plan (the "Redevelopment Plan") for the
Town Center-.Redevelopment Project Area (the "Project Area"), by providing for the
rehabilitation of the hereinafter described commercial Site (the "Rehabilitation Project").
The rehabilitation and continued operation of the Site for such commercial uses
as allowed pursuant to this Agreement and the Redevelopment Plan, and the fulfillment of
this Agreement and the Plan are in the vital and best interest of the City of Tustin and the
health, safety, morals and welfare of its residents, and in accord with the .public purposes and
provisions, of applicable federal, state and local laws. The rehabilitation of the Site will help
to eliminate blight in the Project Area, and will substantially improve the economic; and
physical conditions of the cc~mmunity in accordance with the purposes and goals of the
Redevelopment Plan.
B. ~'he Redevelopment Plan
This Agreement is subject to the provisions of the Redevelopment Plan which was
approved and adopted by the City Council of the City of Tustin by Ordinance No. 701 as
amended by Ordinance Nos. 8.55, 1021, and 1141. Said ordinances and the Redevelopment
FINAL
1101-03 1 September 14, 1998
68265
Plan, as amended; are incorporated herein by reference and made a part hereof. ,
C. Description of The Site
·
The "Site" is that portion of the City and the Project Area designated and illustrated
as Parcel 2 on the Map of Proposed Parcels, attached hereto and incorporated herein by
reference as Attachment No. 1, and having the legal description of'Parcel 2 as set forth in
the Legal Description of the Site, attached hereto and incorporated herein by reference as
Attachment No. 2. The Site is owned by the Ford Family Trust.
D. Parties to the Agreement
(~) ~
Agencyis a public bcJdy, corporate and politic, exercising governmental functions
and powers and organized and existing under Chapter 2. of the Community Redevelopment
Law of the State of Califomia. The principal office and mailing address of Agency is: 300
Centennial Way, Tustin, CA 92780. "Agency", as used in this Agreement, includes the City
of Tustin Community Redevelopment Agency, and any assignee of or successor to its rights,
powers and responsibilities.
(2) ~
Owner is a family trust, whose trustees are Chades W. Ford and patricia H. Ford.
The mailing address of Owner is: 16492 Bamstable Court, Huntington Beach, California
92649. Whenever the term "Owner" is used herein, suCh term shall include any permitted
assignee as herein provided.
(3) D.e_v_.eJDg.e~
Owner has designated Developer as Owner's Project Manager to carry out the
Rehabilitation Project on behalf of Owner in accordance with this Agreement.
·
(4)
As a material provision of this Agreement, Owner has agreed to utilize the services
of Contractor as the general contractor for the Rehabilitation Project. As a material provision
1101-03 FINAL
68265 2 September 14, 1998
of this Agreement;.Contractor has. agreed to perform the services of general contracto, r for
the Rehabilitation Project, provided Contractor and Owner reach an agreement reasonably
satisfactory to Contractor concerning the terms relevant to the performance of general
contractor ~ervices for the Rehabilitation Project. Owner and Contractor have agreed to
negotiate in good faith to reach such an agreement, and to endeavor to enter into a
construction agreement describing such terms (the "Construction Agreement") within thirty
(30) calendar dayS of the effective date of this Agreement. If Owner and Contractor fail to
enter into a Construction Agreement with respect to the Rehabilitation Project within thirty
(30) calendar days of the effective date of this Agreement, Agency shall have no obligation
. _._to fund the Agency Loan descriSed in SectiOn 6 below, and shall have the right to terminate
this Agreement,-. as provided in Section 13F below. Contractor shall, within thirty (30)
calendar days of the effective date of this Agreement, provide Agency with written notice as
to whether Contractor and Owner have entered into a Construction Agreement and
Contractor agrees to perform general contractor services with respect to the Rehabilitation
Project..
By executing this Agreement, Contractor agrees to be bound by this Section 1D(4),
to perform its work in accordance with the provisions of Sections 5 and 7 below, and to make
its respective representations'and warranties as contained in Section 4, Paragraphs A, B,
C, D, E, F, G, H, !, M, and N. Contractor does not undertake the obligations of either Owner
or Developer under this Agreement. Contractor does not guarantee the performance of
Developer's obligations under this Agreement.
(5) 'Relationship of Agency to Owner; Developer and Contractor
It is hereby acknowledged that the relationship of Agency to Owner, Developer and
Contractor is neither that of a partnership nor that of a joint venture and that Agency shall not
be deemed or construed for any purpose to be the agent of Owner, 'Developer or Contractor.
Nor shall Owner, Developer Or Contractor be deemed or construed to be the agent of
1101-03 FINAL
~2S5 3 September 14, 1998
Agency. -. .
Section 2 DEFINITIONS
"City", as used in this Agreement, includes the City of Tustin, and any assignee of
or successor to, its fights, powers and responsibilities.
"Hazardous Substances" meanS substances' defined as "hazardous substances",
"hazardous materials", or "toxic substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601, et seq; the Hazardous
Materials Transportation Act, 49 U.S.C. 1801, et seq; the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. 6901 et seq; and those substances defined
aS "hazardous waste" in_ Sec:'tion.251:l.7 of_the Califomia.Health and Safety Code. or as
-"hazardous substances" in Section 25316 of the California Health and Safety Code; and
substances defined in the regulations adopted in publications Promulgated pursuant to such
Section 3
PROHIBITION AGAINST CHANGE IN OWNERSHIP, MANAGEMENT
AND CONTROL OF OWNER OR CHANGE IN DEVELOPER OR
CONTRACTOR
'A. ImD0rtance of Owner's: Developer's and Contractor's Qualifications
·
Owner recognizes that the commitment of Owner, Developer and Contractor and
the professional qualifications and reputation of Developer and Contractor are of particular
concern to the community and Agency because of:
1) the importance of the redevelopment of the Site to the general
welfare of the community; and
2) the public assistance that has been made available by law and by
the City and Agency for the purpose of making such redevelopment possible.
Except as provided herein, a change in ownership or control of Owner or a change
in Developer or ContractOr is a breach of a material term of this Agreement. It is because
1101-03 FINAL
68265 4 September 14, 1998
of the commitmE~nt of Owner to Developer and Contractor, in conjunction with, the
redevelopment of the adjoining parcel (that is the subject of a Residential Project Disposition
and Development Agreement between the Agency and Warmington Old Town Associates,
L.P. in which Developer and Contractor are partners), and the professional qualifications and
reputation of Developer and' Contractor that Agency is entering into this Agreement with
'Owner.
B.
Prohibition Against Transfer of Site
(1) General Prohibition
Prior to issuance of a Certificate of Compliance by Agency, Owner shall not assign
"---.- or attempt to assign this Agreement or any right herein,'nor make any total or partial sale,
....... transfer, conveyance or assignment of the whole or any part of the Site or the Site
Improvements, except that Owner may transfer the Site to: (a) a newly created trust, of which
Chades W. Ford and Patricia H. Ford are trustors and trustees, for the benefit of certain
charitable.organizations, Chades W. Ford and Patricia H. Ford, and/or the heirs of Chades
W. Ford and/or Patdcia H. Ford, provided that such newly created trust takes title to the Site .
subject .to the Agency's Promissory Note and Deed of Trust described in Section 6C below
and subject to Owner's and Developer's ongoing obligations under this Agreement and the
Agreement to Be Recorded Affecting Real Property, attached hereto as AttaChment No.'8
and incorporated herein by reference, or (b) any heirs of Chades W. Ford and/or Patricia H.
Ford, provided that such transferees, pursuant to (a) wdtten agreement(s)' in form and
substance satisfactory to Agency, assume the obligations of Owner under the Promissory
Note and Deed of Trust described in Section 6C below, this Agreement, and the Agreement
to Be Recorded Affecting Real Property, and take title to the Site subject to the Promissory
Note and Deed of Trust described in Section 6C below, this Agreement, and the Agreement
to Be Recorded Affecting Real Property.
1101-03 FINAL
68265 5 September 14, 1998
'(2)
,.
and Leases-Back or
No Encumbrances ExcePt Mortgages; Deeds of Trust_. Conveyances
Other Conveyances for Financing for
(1) herein, mortgages, deeds of trusts,
Rehabilitation
Notwithstanding subparagraph
conveyances and leaseback, or any other form of conveyance required for the financing the
Rehabilitation Project (collectively "Financing Conveyances") are permitted for the purposes
·
of securing loans of funds to be used for financing the expenditures necessary and
appropriate to conStruct the Site Improvements as required by this Agreement, except that
such Financing Conveyances shall not exceed 70% of the value of the Site at the time the
Financing Conveyance is entered into. Owner shall notify Agency in advance of any
mortgage, deed of trust, conveyance, leaseback, or other form of Financing C'o~'veyance if
Owner proposes to enter into the same before recordation of a Certificate of Compliance, as
defined in Section 10. Owner shall not enter into any such Financing Conveyance without
the prior wdtten approval of Agency, and such approval shall not be unreasonably withheld
or delayed.
The words ".mortgage" and "deed of trust" as used herein includes all other
appropriate modes of financing real estate acquisition, construction and land development.
C. Prohibition A(]ainst Chanoe in Developer or Contractor
·
Owner shall not, except as expressly permitted by this Agreement, change its
developer without prior written approval of Agency, which approval shall not be unreasonably
withheld.
Neither Owner nor Developer shall, except as expressly permitted by this
Agreement, change the general contractor without the prior written approval of Agency.
Any proposed substitute developer or general contractor shall have the
qualifications necessary and adequate as may be reasonably determined by Agency to
·
complete the Rehabilitati°n Project, on behalf of Owner, in accordance with the Scope of
.,
1101-03 FINAL
68265 6 September 14, 1998
Rehabilitation, attached hereto as .Attachment No. 3 and incorporated herein by this
reference, and the Site Plan and Related Documents, attached hereto as Attachment No. 7
and incorporated herein by reference, and within the Rehabilitation Budget, attached hereto
as Attachment No. 11 and incorporated herein by reference. There shall be submitted to
Agency for review and approval all instruments and other legal documents proposed to effect
any such substitution; and if approved 'by AgencY, its approval shall be indicated to Owner
and/or Developer (as applicable) in writing.
in the absence of specific written approval by Agency, as provided above, a
change in developer or general contractor shall be deemed a material breach of this
--- - - . Agreement-entitling Agency to'terminate this Agreement and demand, payment of all sums
loaned by Agency pursuant to the terms of the Promissory Note and-Deed of Trust herein.
Section 4. REPRESENTATIONS AND WARRANTIES OF OWNER, DEVELOPER
AND CONTRACTOR
As an inducement to Agency to enter, into this Agreement, Owner and Developer
represent and warrant to Agency aS to items A through N below, and Contractor represents
and warrants to Agency as to items A through I and M through N below, as follows:
A. Owner, Developer and Contractor represent and warrant to Agency that
each of them respectively has the experience, qualifications and legal status necessary to
perform its respective obligations under this Agreement. .
B.. Owner, Developer and Contractor represent and agree that their respective
undertakings pursuant to this Agreement are for the purpose of redevelopment of the Site
and not for speculation.
C. Owner, Developer and Contractor have duly authorized, executed and
delivered this Agreement and any and all other agreements and documents required to be
executed and delivered by them in order to carry out, give effect to, and consummate the
transactions contemplated by this Agreement.
1101-03 FINAL
6S2r~ 7' September 14, 1998
D. 'Owner, Developer and Contractor each have the legal power, right and
·
authority to enter into this Agreement and the instruments referenced herein, and to
consummate the transactions contemplated hereby;
All requisite action has been taken by Owner, Developer and Contractor
in connection with the entering into this Agreement, the instruments referenced herein, and
the consummation of the transaction contemplated hereby. No consent of any additional
partner, individual, corporation, shareholder, creditor, investor, judicial or administrative body,
trustee, authority or other party is required;
F. The individuals executing this Agreement on behalf of Owner, Developer
and Contractor have the legal power, right and actual authority to bind Owner, Developer and
Contractor, respectively, to the terms and conditions hereof;
G. This Agreement and all documents required hereby to be executed by
Owner, Developer and Contractor are and shall be valid, legally binding obligations of and
enforceable against Owner, Developer and Contractor in accordance with their terms, Subject
only to applicable bankruptcy, insolvency, reorganization, interim zoning ordinances, and
similar laws or equitable principles affecting or limiting the rights of contracting parties
generally;
H. Neither the execution and delivery of this Agreement and the documents
referenced herein, nor the incurring of the obligations set forth herein, nor the consummation
of the transactions herein contemplated, nor compliance with the terms of this Agreement
and the documents referenced herein conflict with or result in the material breach of any
terms, conditions, or provisions of, or constitute a default under any bond, note, or other
evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan
partnership agreement, lease or Other agreements or instruments to which Owner, Developer
or Contractor is a party, or affecting the Site;
I. No attachments, execution proceedings, assignments of benefit of
1101-03 FINAL
68265 8 September 14, 1998
creditors, bankruptcy, reorganization or other proceedings are pending or threatened against
Owner, Developer or Contractor.
J. Except as otherwise previously disclosed by Owner and Developer, to
Agency, in wdting, which writing is attached hereto and incorporated herein by reference as
Attachment No. 9:
(a) Owner does not use, treat, store or diSpose of, and, to the best of
Owner's knowledge, has not permitted anyone else to use, treat, store or dispose of
Hazardous Substances at, on or beneath the Site in violation of any federal, state or local
law, regulation or ordinance;
..... (b) Neither Owner nor Developer has knowledge of the presence, use,
treatment, storage, release or disposal of_any.Hazardous Substances at, on or beneath the
Site which has created or might create any liability of owners or occupants of the Site under
any federal, state or local iaTM or regulation or which would require reporting to a
governmental agency;
(c) To the best of Owner's and Developer's knowledge, no
polychlofinated byphenyls ("PCB's") are contained in or stored on the Site; and
(d) To the best of Owner's and Developer's knowledge, there are no
underground storage tanks located in, on or under the Site;
K. To the best of Owner's and Developer's knowledge, ali reports, documents,
instruments, information and forms of evidence delivered by Owner or Developer, to Agency,
concerning or required by this Agreement, are accurate, correct, and sufficiently complete
to give Agency true and accurate, knowledge of their subject matter, and do not contain any
misrepresentation or omission; and
L. Owner and Developer have, 'and shall maintain throughout the term of this
Agreement, sufficient equity, capital and, firm and binding commitments.to (i) pay through
completion, all costs of the Rehabilitation Project, except those costs to be paid 'by Agency;
1101 -O3 FI NAL
68265 9 September 14, 1998
· and (ii) enable Owner and Developer to perform and satisfy all of the covenants contained
in this Agreement. Neither Owner nor Developer shall undertake such additional projects as
could reasonably be expected to jeopardize the sufficiency of such equity, capital and firm
and binding commitments for the purposes expressed in the preceding sentence.
M. Owner, Developer and Contractor do not have any contingent obligations
or any other contracts which could materially and adVersely affect their abilities to carry out
their respective obligations hereunder.
N. There are no material legal proceedings either Pending or, so far as is
known to Owner, Developer 'and Contractor, threatened, to which Owner, Developer or
-Contractor is or may be made a Party, or to which any of Owner's property, including the Site;
is or may become subject; which has not been fully disclosed in the documents submitted
to Agency and which could materially adversely affect the ability of Owner, Developer or
Contractor to carry out its obligations hereunder.
Each of the foregoing items,'A through N, inclusive, is deemed to be an ongoing
representation and warranty. Owner, Developer and Contractor shall each promptly advise
Agency in writing if there is any change pertaining to any matters set forth or referenced in
the foregoing items, A through N, inclusive.
All of the terms, covenants and conditions of this Agreement shall be binding upon
and shall inure to the benefit of the Parties and the permitted successors and a'ssigns of the
'Parties, except' as otherWise expressly provided in Section 1D(4) above with respect to
Contractor.
Section $ REHABILITATION OF THE SITE
A. Description of Rehabilitation 'Proiect
·
The Site and structures thereon shall be rehabilitated by Owner and Developer
pursuant to this Agreement and in accordance with and Within the limitations established in
the Scope of Rehabilitation, the Site Plan and Related Drawings, and the Rehabilitation
1101-03 FI NAL
68265 1 0 September 14, 1998
Budget approved 'by Agency and City of Tustin. .
B. F'lans and Drawings
Developer shall prepare or cause to be prepared and submitted to Agency, for its
approval, the Final Construction Drawings and Related Documents, consistent with the
requirements set forth in the Scope of Rehabilitation and in accordance with the times for
performance set forth in the Schedule of Performance, attached hereto as Attachment No.
4 and incorporated herein by reference. Each set of plans or drawings submitted must be
approved by Owner and Agency. The Site shall be rehabilitated substantially as shown on
the approved Site plan and Related Drawings, and the approved Final Construction Drawings
and Related Documents. -Changes to Agency approved plans and drawings may be.
approYed only by a writing signed by Owner, Developer and Agency. Any such written
changes shall be within the limitations of the Scope of Rehabilitation.
C. C°st of Site Rehabilitation
Except as otherwiSe provided in this Paragraph C, Owner and Developer shall bear
the cost of planning, designing, preparing and causing the rehabilitation of the Site. As
shown on the Rehabilitation Budget, the estimated cost for the Rehabilitation Project is Two
Hundred Twenty-Seven Thousand Three Hundred Nineteen Dollars ($227,319.00). These
costs shall be borne as follows: (1) Owner shall contribute up to the sum of Fifty Thousand
·
Four Hundred Thirty-Five'Dollars ($50,435.00) (the "Owner's Contribution"), which sum shall
be placed in the Agency's interest-bearing escrow trust account to be used for the payment
of expenses as shown on the Rehabilitation Budget; (2) Agency shall contribute up to One
Hundred Sixty-Five Thousand Dollars ($165,000.00), on the terms as set forth in Section 6
below; and (3) not less than Twelve Thousand Dollars ($12,000.00) shall be paid from the
Four Hundred Ninety-Three Thousand Dollar' ($493,000.00) Land Development budget
described in Section 6D of that certain Residential Project DisPosition and Development
Agreement (the "Residential Project DDA"), between Warmington Old Town Associates, L.P.,
1101 -O3 'FINAL
68265 11 September 14, ,1998
and Agency, pertaining to the development of certain property adjacent to the Site and
currently owned by Owner, such Twelve-Thousand Dollar ($12,000.00) minimum amount to
be paid with respect to certain Site work necessitated by the residential improverqents under
the Residential Project DDA, including but not limited to certain demolition, light standard
relocation and refurbishment, vine planting, and parking lot resurfacing.
if responsible subcontractor bids on an individual line item under the Rehabilitation
Budget exceed the amount budgeted for that item, two additional subcontractor bids, by
responsible subcontractors, shall be procured with respect to such line item. if no such
additional bid, by a responsible subcontractor, falls within the budgeted amount for the line
item, then, Owner and Agency 'shall use their best efforts to, and negotiate in good faith to~
either identify a suitable altemate improvement within the budgeted amount for the-line item,
or proceed with the line item as originally described and agree to a cost sharing arrangement
with respect to the line item cost overrun..
-Neither Owner nor Agency shall be required to contribute additional sums without
their express wdtten agreement, which agreement may be executed on behalf of Agency by
Agency's Executive Director or Assistant EXecutive Director:
Agency shall control the disbursement of the maximum One Hundred Sixty-Five
Thousand Dollar ($165,000.00) Agency Loan amount, the maximum Fifty Thousand Four
Hundred Thirty-Five Dollar ($50,435.00) Owner's Contribution deposited into the Agency's
interest-bearing escrow trust account, and the minimum TwelVe Thousand' Dollar
($12,000.00) Residential Project DDA amount. All disbursements shall be made subject to
satisfaction of the requirements of Section 6C(5) below and shall be subject to the 10%
Agency retention as described in Section 6C(5).
Rehabilitation Project costs shall be paid first from the One Hundred Sixty-Five
Thousand Dollar ($165,000.00) Agency Loan amount (less 10% Agency retention), second
..
from the minimum Twelve Thousand Dollar ($12,000.00) Residential Project DDA amount
1101-03 FINAL
68265 12 September 14, 1998
(less 10% Agency-retention), third from the Fifty Thousand Four Hundred Thirty-Five .Dollar
($50,435.00) Owner's Contribution (less 10% Agency retention), and fourth from the total
10% Agency retention..Notwithstanding the foregoing, however, if the Rehabilitation Project
work is completed for an amount less than the Two Hundred Twenty-Seven Thousand Three
-.
Hundred Nineteen Dollars ($227,319.00) budgeted amount, . then the cost savings shall
accrue to the benefit of Owner and Owner's Contribution shall be reduced, accordingly.
D. Permits and Govemmental Approvals
Owner and Developer shall process, secure or cause to be secured any and all .'i
permits, certificates and approvals which may be required by Agency, the City of Tustin or
any other governmental agency with jurisdiction over the Site and/or over the Rehabilitation
Project, including, but not limited to, a parcel or tract map to establish the Site ~as a legal
parcel and to subdivide such parcel from adjacent property, necessary building permits and
all approvals required under the California Environmental Quality ACt, Public Resources
Code 21000 et seq., as amended or re-codified from time to time. Not by way of limiting the
foregoing, Owner and Developer shall ensure that the Rehabilitation Project 'complies with
all applicable development standards in' the City of Tustin Municipal Code and with all
building code, landscaping, signage and parking requirements, except as may be permitted
through approval variances and modifications. Owner or Developer shall promptly deliver
copies of all governmental approvals to Agency.
E. Local_. State and Federal Laws
Owner and Developer-shall carry out the Rehabilitation Project' on the Site in
conformity with all applicable local, state and federal laws, including all applicable federal
immigration laws and federal and state labor standards.
F. Schedule of Performance
Owner and Developer shall begin and complete the construction and development
of the Site Improvements and shall submit all plans, drawings and other documents within
1101.-03 FINAL
68265 13 September 14. 1998
the times specified.. in the Schedule of Performancel
·
Agency may, at its sole discretion and upon written request from Owner and
Developer, extend the times specified in the Schedule of Performance dealing with
construction of the Rehabilitation Project. Any such extensions shall not be deemed as
amendments to this Agreement, as defined in Section 16, hereof. Any such extensions shall
be evidenced by written notice from Agency's Executive Director or his/her designee.
G. Bequired Notifications
Owner, Developer and Contractor shall each promptly after obtaining knowledge
thereof, notify Agency in writing of the following:
Any litigation affecting Owner, Developer., Contractor, the Site or the
_. (1)
RehabilitatiOn Project.
(2) Any communication, whether written or oral, that Owner, Developer
or Contractor receives from any governmental authority claiming or asserting that any aspect
of work of the Rehabilitation Project fails in any respect to comply with any govern, mental
requirements, or threatening to suspend or revoke any governmental approval.
(3) Any material adverse change in the physical condition ofthe Site, or
the financial condition or operations of Owner, Developer or Contractor.
(4) Any material default by the Owner's c_ontractor, 'architect, engineer
or by any subcontractor, vendor or supplier, having a contract in excess of $25,000, any
material adverse change in the financial condition or operations of any of them, or the filing
of a petition by or against any of the under any debtor relief law.
(5) Any cessation in the work in excess of five (5) business days.
(6) Any damage to or destruction of any'portion of the Rehabilitation
Project where the cost to repair and restore will exceed $25,000.
(7) Any defect in design or construction where the cost to correct will
require a change, or the delay that will be caUsed will exceed five'(5) business days.
1101-03 Fi NAL
68265 14 September 14, 1 .°98
(8) Any lien, charge or encumbrance affecting the Rehabilitation Project
·
not expressly permitted hereby.
(9) The existence of any material default or failure to perform an
obligation by any party under any contract relating to the Rehabilitation Project.
(10) The existence of any default by Owner or Developer, or any condition
or event which with the giving of notice or passage of time, or both, would constitute default,
the nature thereof, and the corrective steps Owner or Developer is taking with respect
thereto.
Section 6
.... A.
FINANCIAL ASSISTANCE TO OWNER
PurDose of Agency Financial Assistance to Owner
The purpose of Agency financial assistance to Owner is to assist Owner to
rehabilitate the Site Improvements, which improvements are deemed to be a blighting
influence in the Project Area.
B. Conditions Precedent to Receiving Agenc.v Assistance
(1) As conditions precedent to receiving the Agency Loan (as defined in
Paragraph C below) for land development and construction assistance:
(a) Owner and/or Developer shall have caused the recordation of a final
parcel map to establiSh the Site as a legal parcel for sale and financing under the California
Subdivision Map Act;
(b) Owner and/or Developer shall have furnished Agency with an ALTA
lender's policy showing: (1)fee simple title to the Site as vested in Owner, (2)Agency as an
insured lender, and (3) no monetary liens or encumbrances, other than loans approved under
Section 3B(2), a lien for taxes not yet due and payable, and the Deed of Trust described in
Paragraph C below; '
(c) Owner and/or Developer shall have fumished to Agency proof of
insurance coverage as provided in Section 12;
FINAL
1101-03 '~ 5 September 14, 1998
68265
(d') Neither Owner nor Developer shall then be in default under this
Agreement, the Promissory Note or Deed of Trust described in Paragraph C below, or the
Agreement to be Recorded Affecting Real Property;
(e) Owner and/or Developer. shall have obtained all City land use
entitlements and building permits to construct the Site Improvements;
(f) Owner and/or Developer shall have prepared or caused to be
prepared all plans, drawings and specifications (the "Plans") necessary to construct and
install the Site Improvements;
(g) Agency shall have received an estoppel notice, in a form .prescribed
by Agency, from each Tenant a~ the Site approving the Scope of Rehabilitation and expressly
releasing the Agency-and the City of Tustin from any claims for relocation assistance, lost
rent, constructive eviction, and loss of goodwill;
(h) With respect to individual disbursements under the Agency Loan, the
conditions of Paragraph C, subparagraph (5) below shall have been satisfied;
(i). With respect only to the 10% completion retention described in
Paragraph C, subparagraph (5)'below, Owner shall have made, and Agency shall have
approved, a request for final progress payment with supporting documentation as described
in Paragraph C, subparagraph (5) below;
(j) Agency shall have received written notice from Contractor that Owner
and Contractor have entered into a Construction Agreement, as described in Section 1D(4)
above, with respect to the Rehabilitation Project, and that Contractor shall provide general
contrabtor services with respect to the Rehabilitation Project;
(k) Warmington Old Town Associates, L.P., a California limited
partnership in which Contractor is the general partner and Developer is a limited partner,
shall have executed the Residential Project DDA described in Section 5C above, pertaining
to the development of certain property adjacent to the Site and currently owned by Owner;,
1101-03' FINAL
68265 1 6 September 14. 1998
(I)'. W. armington Old Town Associates, L.P. Shall have closed escrow for
·
the purchase of that adjacent property as described in the Residential Project DDA; and
(m) Owner shall have deposited the Owner's Contribution, as defined in
. .
Section 5C above, in Agency's interest-bearing escrow trust account to be used for the
payment of Rehabilitation Project costs as shown on the Rehabilitation Budget.
C. .A.g. enc~v Loan
(i)
Subject to the terms and conditions herein, Agency agrees to loan Owner the
amount of One Hundred Sixty-Five Thousand Dollars ($165,000.00) to offset construction
costs for the Rehabilitation Project.("the Agency Loan").
(2) Fo~iveness of Loan:
The Agency Loan shall not bear interest. The Agency Loan shall be a seven-
Year loan. 'One-frith of the principal amount of the Agency Loan, plus accrued interest on
such amount, shall be forgiven at the end of each of the third (3rd) through seventh (7th)
calendar years, provided a Certificate of Compliance is filed by Agency and none of the
events described in subparagraph (4) herein occur during the term of this Agreement and
prior to the end of the calendar year in question. For purposes of this Agreement, each
calendar year shall be calculated as 365 days and the first day of the first calendar year shall
be the date immediately following the recording date of the Certificate of Compliance.
(3,) Promissory. Note and Deed of Trust:
The Agency Loan shall be evidenced by a Promissory Note and secured by
a Deed of Trust, both to be executed by Owner concurrenUy with this Agreement. The forms
of the Promissory Note' and Deed of Trust are attached hereto as Attachment Nos. 5 and 6
and incorporated herein by reference.
The Deed of Trust shall be recorded as soon after the effective.date of this
Agreement as possible, and before Agency makes any disbursements under the Promissory
1101-03 FINAL
68265 17 September 14, 1998
Note. Notwithstanding the foregoing, however, the Deed of Trust shall be secondary to any
Financing Conveyances approved by Agency pursuant to Section 3B(2).
(4) Owner's Repa.vment:
In the event of a default by Owner under this Agreement, under the
Promissory Note or Deed of Trust, or under the Agreement to be Recorded Affecting Real
Property, or if at any time during the term of this Agreement, Owner (1) sells the Site, (2)
without obtaining Agency's approval under Section .3B(2) above, uses all or a portion of the
Site as collateral for financing, (3)'assigns or transfers any property interest in the Site
(excluding (i)tenant leases, (ii)'transfers resulting from provisions of the Ford Family Trust,
in. existence on the date ~of this Agreement, (iii) a transfer to a newly created trust, of which'
Charles W. Ford and Patricia H. Ford are trustors and trustees, for the benefit of certain
charitable organizations, Chades W. Ford, Patricia H. Ford, and/or the heirs of Charles W.
Ford and/or Patricia H. Ford, provided that such newly created trust takes title to the Site
subject to the Agency's Promissory Note and Deed of Trust described in Section 6C below
and subject to Owner's and Developer's ongoing obligations under this Agreement and the
Agreement to Be Recorded Affecting Real Property, and (iv) transfers to any heirs of Chades
W. Ford and/or Patricia H. Ford, provided that such transferees, pursuant to (a) written
agreement(s) in form and substance satisfactory to Agency, assume the obligations of Owner
under the Promissory Note and Deed of'Trust described in Section 6C. below, this
Agreement, and the Agreement to Be Recorded Affecting Real Property, and take title to the
Site Subject to the Promissory Note and Deed of Trust described in Section 6C below, this
Agreement' and the Agreement to Be Recorded Affecting Real Property), or (4) substitutes
another general contractor in place of Contractor, without Agency's approval, Owner shall
repay or cause to be repaid that portion of the Agency Loan that has not been forgiven by
Agency pursuant to subparagraph (2) herein, in such.event(s), the Promissory Note shall
become immediately due and payable. If Owner does not repay the amount due on the
110.1-03 FINAL
68265 1 8 September 14, 1998
Promissory Note when demand for such is made by.Agency, Agency shall, at that time,.have
full rights under the Promissory Note and Deed of Trust, and such other rights as may be
afforded by law, to ensure repayment.
(5) Agency Payment of Loan Proceeds
Owner or Developer may request periodic releases of the proceeds of the
Agency Loan (as well as the Owner's Contribution and the Residential Project DDA amount,
each as described in Section 5C above). Each such request be made upon the written
authority of Owner and Developer and .shall be accompanied by invoices showing Owner's
or Developer's payment for the work, supplies or materials, and unconditional mechanics lien
releases from the contractor, isubcontractor, supplier .and .matedaimen for. the amounts
covered by the request. Agency shall .periodically release portions of theAgency Loan
proceeds, the Owner's Contribution, and the Residential DDA amount, as applicable, upon
receipt of a request as described above. Payments with respect to Contractor's costs
incurred in accordance with the SCOpe of Rehabilitation, the Site Plan and Related Drawings,
and the Rehabilitation Budget shall be paid by check payable to Owner and Contractor
jointly. All Agency releases shall be COntingent upon inspection of the work and/or materials
by representatives of Agency and confirmation that the work and/or materials are
satisfactory. In addition, Agency shall have the right to require additional documentation to
insure, that it is only paying for work that has been done and that ali affected contractors,
suppliers and materialmen have been paid. Inspection shall be done by Agency within three
(3) working days of a request by Owner and Developer. If the work and/or materials are
approved by Agency, payment shall be made as soon as possible and within twelve (12)
working days after the inspection. Agency shall retain 10% of the amount of each request
to insure completion of the work. The retained funds shall be released pursuant a request
for a final progress payment upon evidence that the work has been satisfactorily completed
and contractors, subCOntractors, suppliers and materiaimen have been paid.
1101-03 FINAL
SS265 19 September 14. 1998
(6) P~cnr_.ds: .
Owner and Developer agree to maintain complete and accurate accounts,
invoices, and records of all monies expended or paid for the Rehabilitation Project. Copies
of such documents shall be made available to Agency at Agency's request.
Section 7 CONDITIONS FOR REHABILITATION CONSTRUCTION
A. Prevailing Wages
Owner and Developer shall pay or cause ContractOr to pay prevailing wages for the
construction of the Rehabilitation Project, in accordance with the California Labor Code.
B. Time Limit for Construction
Ali improvements iden{ified in the Scope of_Rehabilitation must be completed .to the
satisfaction of the City and Agency and in compliance with the-City code, and applicable City
ordinances, and public works specifications, as applicable, within the time frames outlined
in the Schedule of Performance. Any eXtensions. of time must be approved in writing by
Agency.
C~ Reouired Licenses and Permits
Before commencement of construction, Owner and Developer shall, at their own
expense (excepting.fee waivers approved by the City Council), secure or cause to be
secured, any and all licenses and permits which may be required by the City or any other
governmental agency affected 'by such construction. Owner and Developer shall cause
plans for permits to be submitted within the times specified in the Schedule of Performance.
D. One (1) Year Guarantee
Upon the filing of Owner's Notice of Completion, Owner or Developer shall provide
or cause to be provided to Agency a one (1) year guarantee of the quality and fitness of all
materials and labor which time period shall run from the date of the filing of Owner's Notice
of Completion. This guarantee is in addition to applicable warranties or guarantees available
under State law and provided for the supplies or equipment.
1101-03 FINAL
68265 2 0 September 14, 1998
E. Quality of Work and Materials
Ail work shall be of good quality and ali workers shall be skilled in their trades.
Unless otherwise specified herein, all materials shall be new, and shall be of good quality.
F. Clean-up of Site and Adjacent Areas
Owner, Developer, their agents, servants, employees or contractors shall keep the
site and adjacent streets and sidewalks substantially free from accumulation of waste
matedal and rubbish; and at the completion of the work, Owner.Or Developer shall remove
from the site all waste material and rubbish, implements, surplus materials, and surplus
equipment.
Section 8 USES OF THE SiTE ............
Owner covenants and agrees for itself, its successors, its assigns, and every
successor in interest to the Site, or any part thereof, that during construction and thereafter
until November 22, 2016, Owner, its successors and such assigns, shall develop and devote
the Site to the uses specified in the Tustin General Plan and the Redevelopment Plan, the
Scope of Rehabilitation all plans approved by Agency pursuant to this Agreement, the
Agreement to be Recorded Affecting Real Property, and any covenants required by this
Agreement and this Section. The covenants expressed in this Section 8 are covenants
running with the land for the duration of the Redevelopment Plan, as provided in the
Agreement to be Recorded Affecting .Real Property, which shall be signed concurrently
herewith and recorded as soon after the effective date of this Agreement as possible.
Section 9 MAINTENANCE OF THE SITE
Owner covenants and agrees for itself, its successors, its assigns and every
successor in interest to the Site or any part thereof, that: (a) solely at Owner's expense,
Owner shall maintain the Site and keep the Site reasonably free from any debris and waste
materials, (b) solely at Owner's expense, Owner shall at all times keep the Site and every
part thereof in good order, condition and repair, structural and non-structural (as long as such
1101 -O3 FINAL
68265 21 September 14, 1998
portion of the Site requiring repairs or the means of repairing the same are accessible to
Owner), (c) Owner, in keeping the Site in good order, condition and repair, shall exercise and
perform good maintenance practices, and (d) Owner's obligations shall include restorations,
replacements or renewals when necessary to keep the Site and all improvements thereon
or a part thereof in good order, condition and state of repair. If at any time Owner fails to
maintain the Site as required by this Section 9, and said condition is not corrected after
wdtten notice from City or Agency and a 'reasonable period of time not to exceed thirty (30)
days from the date of written notice from Agency expires, either Agency or the City may
perform the necessary landscape or other maintenance and Owner shall .pay all costs
incurred for such maintenancel The covenants contained in this Section 9 shall terminate
upon the cancellation of the Promissory Note described in Section 6C above and the
reconveyance of the Deed of Trust described in Section 6C above.
Section 10 CERTIFICATE OF COMPLIANCE
A. After completion of all Rehabilitation Project work to be completed by Owner
and Developer upon the Site in compliance with the terms of this Agreement and upon
satisfaction of the conditions set forth in Section 7 of this Agreement, the Agency shall furnish
the Owner with a Certificate of Compliance upon written request therefor by Owner. Such
Certificate of Compliance shall be, and shall so state, conclusive determination of satisfactory
completion of the Rehabilitation Project work required by this Agreement. After issuance,
Agency shall promptly cause the Certificate to be recorded. After the recordation of the
Certificate of Compliance, any party then owning or thereafter purchasing, leasing, or
otherwise acquiring any interest therein shall not (because of such ownership, purchase,
lease or acquisition) incur any obligation or liability under this Agreement with respect to such
Site, except that such party shall be bound by the covenants c°ntained in Section 11.
Issuance of the Certificate of Compliance shall not waive any rights or claim that Agency may
have against any party for latent or patent defects in design, construction or similar matters
FINAL
1
101-03
ZZ September 14, 1998
68265
under any applicable law, nor shall it be evidence of satisfaction of Owner's obligati,ons to
others.
B.
.Compliance.
Agency shall not unreasonably withhold or delay any Certificate of
If Agency refuses or fails to issue a Certificate of Compliance after written
request from Owner, provided all of the Rehabilitation Project work has been completed in
compliance with the terms of this Agreement and each of the conditions established in
Section 7 of this Agreement has been satisfied, the Agency shall within ten (10) business
days of receipt of the written request, provide a wdtten statement which details the reasons
the Agency refused or failed to issue the. Certificate of Compliance. The statement shall also
contain a statement, of the '.actions that Owner must. take to .obtain. a Certificate of
Compliance.
Section 11
A.
NON-DISCRIMINATION
_Obligation to Refrain from Discrimination
Owner, covenants by and for itself and any successors in interest that there shall
be no discrimination against or Segregation of any person or group of persons on account
of race, color, creed, religion, sex, madtal status, age, disability, national odgin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, or any
portion thereof, nor shall Owner for itself or any person claiming under or through it, establish
or permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees
or vendees of the Site. The foregoing covenants shall run with the land.
B. Form of Non-discrimination and Non-Segregation Covenants
All deeds, leases or contracts for the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the Site or any portion thereof, shall contain and-be
subject to the following non-discrimination or non-segregation covenants:
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1101-03 23 September 14, 1998
68265
1101-03
68265
o .
e
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: (a) there shall be
no discrimination against or segregation of, any person or group of
..
persons on account of race, color, creed, religion, sex, marital
status, age, disability, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land
.herein conveyed, and (2) neither the grantee himself or herself, nor
any person claiming under or through him or her, shall 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."
In leases: 'q'he lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and .
all persons claiming under or through him or her, and this lease is
made and accepted upon and subject to the following conditions:
There shall be no'discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion,
sex, marital status, disability, age, ancestry or national origin in the
leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the premises herein leased, nor shall the lessee
himself or herself, or any person claiming under or through him or
her, establish or permit any such practice or' practices of
discrimination or segregation with reference to the selection,
FINAL
24 September 14, 1998
'- location, number, use or occupancy of tenants, lessees,' suble.ssees,
subtenants or vendees in the premises herein leased."
3. in contractS: "There shall 'be no discrimination against or segregation
of, any person, or group of persons on account of race, color, creed,
religion, sex, marital status, age, disability, ancestry or national
origin, in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the premises, 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 premises. The foregoing provisions shall be binding upon and
shall obligate the contracting party or parties and any subcontracting
party or parties, or other transferees under this instrument and shall
be covenants running with the land."
C. Duration of Covenants
The covenants in this Section 11 shall remain in effect in perpetuity.
Section 12. INSURANCE AND INDEMNIFICATION
A. Worker's Compensation; Bodily Injury. and Property. Damage Insurance
(1) Dudng the period commencing with the execution of this Agreement
and ending with a recordation of a Certificate of Compliance, Owner or Developer shall
furnish to Agency duplicate originals of appropriate certificates of insurance for the
rehabilitation work to be performed by Owner and Developer under this Agreement, as
follows:
le
Worker's Compensation Insurance, providing coverage as required
by the California State Worker's Compensation Law.
1 i 01-03 FINAL
68265 25 September 14, 1998
2:. Liability for bodily injury and death. .
3. Liability for Property Damage, including Builder's All Risk Insurance
for the completed value of the Site Improvements.
Each policy for 2 and 3 above shall have coverage of not less than One
Million Dollars ($1,000,000)combined single limit, shall be occurrence-based.
(2) Notwithstanding the foregoing, from and after the date of recordation
of the Certificate of Compliance, and thereafter until the Promissory Note described in
Section 6C above is canceled and the Deed of Trust described in Section 6C above is
reconveyed, Owner shall continue to maintain the Property Damage Liability Insurance
-described in subparagraph (i).above and shall fumish..to Agency duplicate odginal
certificates of insurance, in the form of Attachment No. 10 attached hereto and incorporated
herein by reference, together with all endorsements required in Paragraph B below.
B. Insurance Endorsements
Each such policy of liability insurance shall contain endorsements
.
providing the following:
a. The City'of Tustin and the Tustin Community Redevelopment
Agency are 'hereby. declared to be additional insureds under the terms of this policy with
respect to this subject property and Agreement with Agency.
b. This insurance policy is primary insurance and no insurance
held or owned by the City or Agency shall be called upon to cover a loss under'said policy.
c. Owners Loss Payable giving priority to the City or Agency for
the proceeds and the insurance benefits, to be used to restore the damaged property.
d. An endorsement that PrOvides that: 'q-his insurance policy will
not be canceled, limited or non-renewed by the insurer until thirty (30) days after receipt by
Agency of a wdtten notice of such cancellation or reduction in coverage."
..
e. An endorsement that provides that: "A waiver of subrogation
1101-03 FINAL
68265 26 September 14, 1998
is hereby given to-the City of Tustin and the Tustin Community Redevelopment Agency as
'pertains to the terms of all workers compensation insurance."
f. Insurers muSt be Admitted Sureties in the State of California,
in good standing, have an agent for service of process in California, and have a Best's Key
Rating of at least A, VII.
2.' As evidence of such insurance, Owner or Developer shall deliver to
Agency, within ten (10) business days fbliowing the execution of this Agreement, an
insurance certificate in the form of Attachment No. 10.
C. Provision of Insurance by Contractor
.... Dudng the pedod of c~nstruction of the Rehabilitation Project work, the insurance
requirements set forth in Paragraph A, subparagraph (1) and Paragraph B above may be
satisfied by the provision of insurance by Contractor, provided that evidence of such
insurance, meeting ali the requirements of Paragraph A, subparagraph (1) and Paragraph
B above, is delivered to and approved by Agency, prior to the commencement of
construction.
D. Indemnification
Upon execution of this Agreement, notwithstanding Owner's and Developer's
insurance obligations, and excepting any claims, liability, injury demands, suits, judgments,
or awards based on Agency's or City's active negligence or wilful misconduct, Owner and
Developer shall each defend, indemnify, and hold harmless the City and Agency, their
officers and representatives, employees and agents from and against any claims, liability,
injury, demands, suits, judgments or awards arising from or related in any manner to (i) the
activities of Owner, Developer or Contractor. under this Agreement, (ii) the incurring of costs
and expenses by Owner, Developer or Contractor, (iii) the disposition of the Site pursuant
to any future sales, leases and/or rental agreements, (iv) the relocation, removal, exit, or
claims for loss of goodwill of any tenant from the Site or for the rehabilitation work undertaken
FINAL
~o~-o3 27 September 14, 1998
68265
by Owner or Developers for the redevelopment of the Site. This indemnity shall apply to
·
economic losses, personal injuries or property damage suffered by City or Agency; their
respective officers, employees or agents. This indemnity shall not apply to Agency's breach
or default of any of the material terms, conditions or covenants of this Agreement.
Section 13 DEFAULTS, REMEDIES AND TERMINATION
A. ~
Each of the following shall constitute a default under this Agreement:
(1) Failure or delay by a party to perform any term or provision of this
Agreement within the time provided herein Or in the
Schedule of Performance, as ~uch times may be extended pursuant to this Agreement.
(2) Failure of Owner and Developer to develop the Site substantially in
accordance with the Scope of Rehabilitation plans, and construction drawings and any
revisions thereto approved by Agency.
(3) Breach of any covenant, warranty, or agreement contained or
incorporated in this Agreement.
The party who fails to perform or delays performance of any term or provision of this
Agreement must immediately commence to cure, correct or remedy such failure and shall
complete such cure, correction or remedy with all due diligence.
B. Notice .
If an event of default under this Agreement occurs, the injured party shall give
written notice (a "Default Notice") of the default to the party in default, specifying the nature
of the default. Failure or delay in giving such notice shall not constitute a waiver of any
default, nor shall it change the time of default, nor shall it operate as a waiver of any rights
or remedies of the injured party; but the injured party shall have no right to exercise any
remedy hereunder without delivering the Default Notice as Provided herein. Delays by either
· party in asserting any of its rights and remedies shall not deprive either party of its right to
1101-03 FI NAL
68265 28 September 14, 1998
institute and maintain any actions or proceedings which it may deem necessary to protect,
·
assert or enforce any such rights or remedies.
C. Cure Period
With respect to defaults or events for which a specific cure period is provided
elsewhere in this Agreement, the specific cure period in that Section shall be applicable in
lieu of cure periods provided in this Paragraph C. in no event shall the cure period set forth
in this Paragraph C be added to any other cure period set forth in this Agreement.
The injured party shall have 'no right to exercise a right or remedy hereunder unless
the subject default continues uncured for a period of thirty (30) days after the delivery of the
Default Notice, or, where the d~fault is of a nature which cannot be cured within such thirty
(30) day period, the defaulting pa ~rty fails to.commence such cure within thirty (30) day period
or fails to proceed diligently to complete the same, within a reasonable period of time, as
determined bY the non-defaulting party, in its reasonable discretion. A default for failure to
pay a sum of money is a default which can be cured within thirty (30) days. If the default is
not cured within the time periods specified above, the non-defaulting party, at its option, may
institute an action for specific performance of the terms of this Agreement or pursue such
other fights and remedies as it may have.
D. Ri(]hts and Remedies
v
Upon the occurrence of an event of default and the expiration of the applicable cure
period provided herein or by law, the injured party shall have all fights and remedies against
the defaulting party as may be available at law or in equity, to cure, correct or remedy any
default, to obtain specific performance, to recover.damages for any default, or to obtain any
other remedy consistent with the purpose of this Agreement, and when Agency is the injured
party, Agency shall have the fight to apply any and/or all of the 10% completion retention
.
amounts it then holds, as described in Section 6C(5), to cure such default. Such dghts and
remedies are cumulative, and except with respect to dghts and remedies expressly declared
FINAL
1101-03 29 September 14. 1998
68265
to be exclusive in this Agreement, the exercise of one or more of such fights and remedies
shall not preclude the exercise, at the same or different times, of any other dghts or remedies
for the same default or any other default by the defaulting party.
E. Le(]al Actions
(i) · Y_c. J3z~
Ail legal actions must be instituted in the Superior Court of the County of
Orange, State of California, or in any other appropriate court of that coUnty, or in the Federal
Distdct Court in the Central District of California, Santa Aha branch.
(2) Service of Process
Service of process on Agency shall be made by personal service upon the
Executive Director of Agency, or in such manner as may be provided by law.
service of process on' owner or Developer shall be made by personal service
upon an officer of Owner or Developer, as applicable, or in such manner as may be provided
by law, whether made within or without the State of California.
(3) ApPlicable Law
The laws of the State of California' shall govern the interpretation and
enforcement of this Agreement.
F. Termination
in addition to other remedies set forth in this Agreement, Agency. Shall have
the dght to terminate this Agreement if'.
(1) Agency, at its option, reasonably determines the conditions of the
Site are not suitable for the development required by this Agreement;
(2) Agency delivers a Default Notice pursuant to Paragraph B, above,
and any pertinent cure period applicable pursuant to Paragraph C, above, with respect
thereto has expired;
(3)
Owner and/or Developer (or any successor and assigns) -assign(s)
1101-03 FINAL
68265 30 September 14, 1998
or attempt(s) to assign this Agreement. or any right therein or assigns or transfers the Site (or
any portion thereof), contrary to the provisions of this Agreement;
(4) Owner and/or Developer fail(s) to submit plans, drawings and related
documents for the Site, as required by this Agreement by the date respectively provided for
in the Schedule of Performance;
(5) ' Owner and Contractor have not, within thirty (30) calendar days of
the effective date of this Agreement, entered into a Construction Agreement, as described
in Section 1D(4) above, for the provision of general contractor services, - by Contractor, for
the Rehabilitation Project;
.
.... (6) Owner and/or Developer substitute(s) another general contractor in
....... place of Contractor, without Agency permission;
(7) Warmington Old Town Associates, L.P., fails, within five (5) business
days of the effective date of this Agreement, to execute the Residential Project DDA
described in Section 5C above, pertaining to the development, of certain property adjacent
to' the Site and currently owned by Owner;,
(8) Warmington Old Town Associates, L.P., fails, within thirty (30)
calendar days of the effective date of this Agreement, to close escrow for the purchase of the
.property described in the Residential Project DDA described in Section 5C above;
(9) Before the first disbursement is made under either the Agency Loan
described in Section 6 above or any Financing Conveyance approved by Agency under
Section 3B above, the Residential Project DDA is terminated, pursuant to its terms; or
(10) Owner and/or' Developer fail(s), in violation of this Agreement, to
perform any of their respective obligations hereunder.
G. Riohts and Remedies Are Cumulative
v
Except as otherwise expressly stated in this Agreement; the dghts and ~'emedies of
the parties are cumulative, and the exercise by any party of one or more of such fights or
1101-03 FINAL
68265 31 September 14. 1998
remedies shall not preclude the exercise by it, at the same or different times, of any .other
rights or remedies for the same default or any other default by any other party.
H. Effect of Violation of the Terms and Provisions of this Agreement
Agency is deemed the beneficiary of the terms and provisions of this Agreement and
of the covenants running with the land, for and in its own right and for the purposes of
protecting the interests of the community' and other parties, public or private, in whose favor
and for whose benefit this Agreement and the covenants running with the land have been
provided. The Agreement and the covenants shall run in favor of Agency, without regard to
whether Agency has been, remains, or is owner of any land or interest there in the Site or
-in the Project Area. Agency shall have the right, if the Agreement or .covenants are
breached, to exercise ali rights and remedies, and to maintain any actions or suits-at-law or
in equity or other proper proceedings to enforce the curing of such breaches to which it or
any other beneficiaries of this Agreement and covenants may be entitled.
Section 14 GENERAL PROVISIONS
A. DisDutes to be Determined by Agency
·
Any disagreement arising out of this Agreement or from breach thereof, shall be
submitted to Agency for determination. Agency shall make its determination within thirty (30)
days after the matter is submitted to Agency for determination, it is mutually agreed that the
determination shall be a condition precedent to any right of legal action that either party may
have against the other. '
B. Local, State and Federal Laws
Owner, Developer and Contractor shall carry out all construction of the Site
ImprOvements and all responsibilities under this Agreement in conformity with all applicable
local, state and federal laws, including all applicable federal immigration laws and federal and
state labor standards.
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1101-03 32 September 14, 1998
68265
C. -Faxes; Assessments, Encumbrances and Liens
Owner shall pay when due all real estate taxes and assessments, and other
encumbrances or liens, assessed or levied on or against the Site and each portion thereof.
Until such time as the Agency Loan is either repaid or forgiven, Owner agrees to refrain from
contesting the validity or amounts of any ad valorem tax assessment.
D. ' Riohts of Access
Representatives of Agency and the City shall have the reasonable right of access
to the Site or any portion thereof without charges or fees dudng the pedod of this Agreement
for the purpose of determining compliance with plans approved under this Agreement
· - or the provisions, of the Redevelopment Plan, including but not limited .to the inspection of
work being Performed in construcUng the Site Improvements.
E. Notices. 'Demands and Communications Between the Parties
Written notices, demands and communications among Agency, Owner, Developer
and Contractor shall be sufficiently given if (i) delivered by hand (and a receipt therefor is
obtained or is refused to be given), (ii). dispatched by registered or certified mail, postage
prepaid, return receipt requested, or (iii) delivered by private delivery service (and a receipt
therefor is obtained or is.refused to be given), to the principal offices of Agency, Owner,
Developer or Contractor as applicable. Such wdtten notices, demands and communications
may be sent in the same manner to such other addresses as either party may from time to
time 'designate by mail as provided in this Section 14E.
Any written notice, demand or communication shall be deemed' received
immediately if delivered by hand, shall be deemed received on the tenth day from the date
it is postmarked if delivered by registered mail, shall'be deemed received on date of delivery
as shown on the return receipt if delivered by certified mail, and shall be deemed received
. as of the date of delivery shown in the records of the private delivery service if delivered by
such private delivery service.
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1101-03 33 September 14, 1998
Such notices shall be addressed and delivered to:
William A. Huston, Executive Director
Tustin Community Redevelopment Agency
300 Centennial Way
Tustin, CA 92780
The Ford Family Trust
Attn: Chades W. Ford and Patricia H. Ford, Trustees
16492 Barnstable Court
Huntington Beach, CA 92649
DeBeikes Investment Company
Attn: Richard A. DeBeikes, Jr.
5289 Alton Parkway
lrvine, CA 92604
.Warmington Homes California
.3090 Pullman Street, Suite A
Costa Mesa
California 92626
F. Conflicts of Interest
No member, official or employee of Agency shall have any personal interest, direct
or indirect, in this Agreement, nor shall any member, official or employee participate in any
decision relating to the Agreement which affects his personal interests or the interests of any
corporation, partnership or association in which he is directly 'or indirectly interested.
Owner and Developer each warrant that they have not paid or given, and will not
pay or give, any third party any money or other consideration for obtaining this Agreement.
G. Enforced Delay: Extension of Times of Performance '
In addition to specific provisions of this Agreement, performance by any party
· hereunder shall not be deemed to be in default, and all performance and other dates
specified in this Agreement and the Attachments hereto Shall be extended, where delays or
defaults are due to: war;, insurrection; stdkes; lockouts; dots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight
embargoes; lack of transportation; governmental restrictions or priority; litigation by third
parties challenging the validity of this Agreement, or Owner's and Developer's dghts and
1101-03 FI NAL
68265 34 September 14, 1998
obligations under-this Agreement; unusually severe weather;, inability to secure, or de. lay in
securing, permits (if the inability to secure, or delay in securing, permits is not the fault of
Owner or Developer), necessary labor, materials or tools; delays of any contractor,
subcontractor or supplier;., acts or omissions of the other party; acts or failures to act of the
..
City of Tustin or any other public or governmental agency or entity (other than the acts or
failures to act of Agency which shall not excuse performance by Agency); or any other
causes beyond the control or without the-fault of the party claiming an extension of time to
perform. Notwithstanding anything to the contrary in this Agreement, an extension of time
due to any such cause shall be for the pedo.d of the enforced delay, if notice by the party
..... claiming such extension is sen{ to the other party within (1) thirty (30) calendar days after the
commencement of the cause, when itis then reasonably foreseeable that a delay may result
(e.g., on learning of a labor strike), or (2) thirty (30) business days after the commencement
of the delay, when it was not reasonably foreseeable that a delay would result (e.g., sudden
flooding). Times of performance under this Agreement'may also be extended in writing by
the agreement of Agency, Owner and Developer.
H. Nonliability. of Officials and Employees of Agency
No member, official or employee of Agency shall be .personally liable to Owner,
Developer, Contractor, or any of their successors in interest, in the event of any default or
breach by Agency or for any amount which may become due to Owner, Developer,
Contractor, or their successors, or on any obligations under the terms of this Agreement.
!. Inspection of Books and'Records
·
Ager)cy has and shall have the right at all reasonable time§, upon no less than ten
(10) business days written notice, to inspect the books and records of Owner and Developer
pertaining to the Site as pertinent to the purposes of this Agreement. Owner and Developer
each has the dght at all reasonable times, upon no less than two (2) business days written
notice to inspect the books and records of Agency pertaining to the Site as pertinent to the
FINAL
1101-03 3 5 September 14, 1998
68265
purposes of this Agreement. .
Section 15 SPECIAL PROVISIONS
A. Successors In Interest
For the term of this Agreement, the terms., covenants, conditions and restrictions of'
this Agreement shall extend to and shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and assigns of the parties, except as provided for in
this Agreement.
Section 16 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS
This Agreement shall be executed in four (4) duplicate originals, each of which is
deemed to be an original. Thi~ Agreement includes 38 pages and 11 Attachments, which
constitutes the entire understanding and agreement of the parties.
This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes ali negotiations or previous agreements between the
parties or their predecessors in interest with respect to all or any part of the subject matter
hereof.
All waivers of the provisions of this Agreement must be in wdting by the appropriate
authorities of Agency, Owner, and Developer and all amendments hereto must be in writing
by the appropriate authorities of Agency, Owner, and Developer.
In any circumstance where, under this Agreement, any party is required to approve
or disapprove any matter, approval shall not be unreasonably withheld.
Section 17 EFFECTIVE DATE OF THE AGREEMENT
The effective date of this Agreement shall be the date when'it Shall have been
1101-03 FINAL
68265 36 September 14, 1998
signed by Agency. .
IN WITNESS WHEREOF, Agency, Owner, and Developer and Contractor have
each signed this Agreement on the respective dates set forth below.
Dated:
"Agency"
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California community redevelopment
agency
By:
Thomas R. Saltarelli, Chairman
APPROVED AS TO FORM:
-Lois E. Jeffrey,
Agency Counsel"
ATTEST:
Recording Secretary
Dated:
"Developer"
DEBEIKES INVESTMENT COMPANY, a California
corporation
Ricl~d A. DeBei~, Jrl.I President
By its signature below, Contractor makes only those agreements, representations and
warranties described in Section 1D(4) above:
"Contractor"
WARMINGTON HOMES CALIFORNIA, a California
corporation
Brian L. Sinderhoff, Pres[dent, ~)uthem
California Division
1101-03
68265
FINAL
37 . September 14, 1998
FORD COMMERCIAL REHABILITATION PROJECT
DISPOSITION AND DEVELOPMENT AGREEMENT
[signatures, continued]
Dated:
"Owner"
FORD FAMILY TRUST, dated September 21,
1984
~_,harles W. Cord, Tru'stee
·
Patricia H. Ford, Trustee.
MAP OF PROPOSED PARCELS
I I01-oli
674~9_!
Attachment 1 to DDA
MAP OF PROPOSED PARCELS
'W.O. 107-251
Attachment I to DDA
I of 1
LEGAL DESCRIPTION
Attachment 2 to DDA
1101..03
~'~9~I
LEGAl. DES~IOI~ O£
PROPOSED PAItCELS FOR
C1TY OF TUSTIN RF..D~~P~~ AGE!~C¥
'that por~on of tha~ L~nd in the CiW of Tusthl. County of O~n~c. St~tc of ~o~, ~
dc~~ in G~n~ ~ ~rdcd J~~ ~7. 1989. ~ I~men~ No. B9-~91~. O~
~cords of ~id ~~. dc~d as fo~:
~0ng ~d Soum~;t ~e ~om.~e most ~u~ ~mer of s~d bna;. m~ No~ 4W~9~01'
West 274.61 feet, ~ ~e Wesccrly ~undaw of ~id Iznd; ~cn~ ~lon~ ~id'
and th~ No,hotly and ~u:h=asterly ~d~es of ~id ~d the ~Ilc~in~ c~urs~: North
0'32'57' ~t 245.4I f~L ~u~ B~25'52' F&,t SSS. gS Ik=t to z ~ngcnt ~c con~vc ~u~erly
ha~ing a ~dias oF 88.00 f~ ~iter~' 47.97 f~t along ~d ~= ~rough a c=ntra ~gl~ of
~1'13'56' m a r~'~= ~-e con,ye Nor~ ~a~g a radiu, of 50.~ l%eL
Nor~er~ having a rad~ of 300.00 i~ a ~di~l line ~ ~e be~nning of
Sou~ ~*08'41' ~t. Nor~eas~rly 105.25 ieet Eong s~d ~e ~rough
20'06'11' :~ ~ reverse ~'e con~v~ Southeasterly ~g a ~diu~ of 240.00
5.61 feet Eong s;fid ~e ~ough a ~n~ ~g]e of 1~0'25', non-~gent ~om
~u~ 8~25'5!' ~ 1~.52 [~L ~d ~ 4~40'18' W~ 597.71 feet to
Th~ pordon of land in the City of Tusdn, County of Oran~., Suttc of C~iforni~. ~ described
in Gra~c Deed recorded Jmauary 27, 1989. as I. nstrumcrtt No. 89-049195. Offici~ Re:ords of
mid Courw/. cle$ct-lb=d ;u follc~,~:
Attachment 2 to DDA
1 of 3
said land Nor~ 40'40'18' E~sl 116.26 fcc~; thence Blorr~ 47°S9'01' '~es~ 174.$1 feel:
W~cr!y bound,w)' of ~aid l~ud; thence along said IVc~terly bo~J~y and
boundzD, of said ]:md d~e £oLlo~,,in~ c~: So,th 0~-~'~T' 'e,'es~ 7..~5 £c¢~. $our. h
W~t 110.19 l'cet, South 47'4.5'13' E,~s~ 249.80 f'¢ct, and Sou~ 49"21'34" Eas£ ~0.00
Poin~ of Be.~inmng.
.~ =ho,~n on Exhibk 'B'. a~bccl h~r~w ~nd I~- this reference maclc a par~ hereof.
License Expires: December !~ 1, 1999
Attachment 2 to DDA
2of3
i ·
_
ii
PROPOSED PARCELS
]=OR REDEVELOPMENT PURPOSES
50'~-.- '1 W.O.
3of3
SCOPE OF REHABILITATION
11Ol-O:t
67~_~
Attachment 3 to DDA
..'.'
ATTACH]vI~NT NO. 3
SCOPE OF R.E~ILITATION
[FORD F.~.MILY TRUST COIvE-MERCIAL REHABILITATION"]
NOTE: References herein to "the Agreement" and "the DDA" mean the
Disposition and Development Agreement of which this Attachment No. 3 is a
part; references to "Attachments" mean the Attachments to the DDA unless
otherwise specified. Except as otherwise noted, all capitalized terms defined
within the DDA and the Attachments shall retain the meanings as defined in the
Disposition and Development Agreement.
I. GENERAL DESCRIPTION
The Site is delineated AS Parcel 2 on the Map of Proposed Pan:els (Attachment No. 1)
and is described as.Parcel 2 on the Legal Description (Attachment No. 2) to the Agreement.
II. DEVELOPER IMPROVEMENTS
A. -Definition of Site Improvements
·
The Developer shall construct or cause to be conStrUcted on. the Site all of the
Rehabilitation Improvements, including the Private Improvements arid pUblic Improvements set
forth in this Scope of Development as approved by the Agency, Planning Commission, and City
Council.
The Rehabilitation .Improvements shall generally consist of the following:
o
Rehabilitation of commercial buildings and parking lot pursuant to Agency approval
and City of Tustin approvals through the Tustin Planning Commission and Tustin
City Council. Resolutions of approval shall be obtained within the times established
in the Schedule of Performance Attachment No. 4.
.
Compliance with ~I1 "Conditions of Approval" stipulated by an applicable
governmental agency having jurisdiction, including, but not limited to, the Planning
Commission and City Council approvals identified above.
3. Compliance with ail provisions of the Disposition and Development Agreement.
B. Schedule of Performance
The Developer shall commence and complete the Rehabilitation Improvements by the respective
times established therefor in the Schedule of Performance (Attachment No.4).
-1-
HI. DEVELOPMENT STANDARDS .
·
Thc Rehabilitation Improvements shall be designed and rehabilitated in which thc commercial
buildings will have a first-class architectural quality and character, both individually and in thc
context of thc surrounding Tusfin Old Town District. All public spaces and parking areas shall
be designed,' landscaped and developed with thc same de~ec of quality. Particular attention
shall bc paid .to enhancing pedestrian activities, minimizing mass, scale and bulk, and to thc
selection of color and materials. Thc Agency and thc Developer Will cooperate and direct their
consultants, architects and/or engineers to cooperate so ag to ensure the continuity and
coordination necessary for thc proper and timely completion of the rehabilitation of the Site.
All of the Rehabilitation Improvcrnents shall conform to all applicable federal, state and county
codes and regulations, thc requirements of thc Town Center Redevelopment Plan and the Tustin
City Codes and thc conditions of City resolutions.
Thc Developer acknowledges the ~esponsibility to 'Obtain any approvals required 'by any
go'vemmental agency, Utility or other agency, incli~ding the City, which has jurisdiction over ali
or any portion of the Rehabilitation Improvements. All "Conditions of Approva!'.~ stipulated by
an applicable jurisdiCtion shall be incorporated into the final design and noted in the construction
documents by the architects, engineers and other consultants. The Developer shall make all
necessary applications by such time(s)'as will be consistent with the timely commencement and
completion of various portions of the off-site and on-site improvements by the respective times
established therefor by the Schedule of Performance (Attachment No. 4 of this A~eement).
IV. CHANGES TO FINAL
DOCUMENTS
CONSTRUCTION
DRAWINGS AND RELATED
If the Developer desires to make any changes in the Final Construction Drawings and
Related Documents approved by thc Agency, Planning Commission and the City Council, the
Developer shall submit the proposed change(s) to the Agency and City for .approval. Such
changes shall be reviewed in the context of the purpose of the DDA'and applicable pro.visions of
the City of Tustin Municipal Code and shall be approved or disapproved by the Agency and
City.
.-2-
SCHEDULE OF PERFORMANCE
Attachment 4 to DDA
1101-03
67449 I
ATTACHMENT NO. 4
SCHEDULE OF PERFORmaNCE
[FORD FAMILY TRUST COMMERCIAL REHABILITATION]
NOTE: References herein to "the A~eement" and "the DDA" mean the
Disposition and Development Agreement of which this Attachment No. 4 is a
part; references to "Attachments" mcan the Attachments to the DDA unless
otherwise specified. Except as otherwise noted, all capitalized terms defined
within the DDA and the Attachments shall retain the meanings as defined in the
Disposition and Development Agreement.
Action ... Timin~
1. Execution o f A_oTeement
A. Developer delivers executed DDA
Attachments to Agency.
B. Agency executes DDA and
Attachments.
C. Agency causes recordation of
appropriate DDA Attachments.
Within 15 calendar days following action by
Agency on the DDA.
Within 5 working days following Developer's
submission of executed DDA Attachments.
Within 10 working days following execution of
the DDA by Agency.
2. Entitlement Approvals
A. Developer submits complete
Tentative Parcel Map Application (for
financing purposes only) with related
drawings and documents to the City of
Tustin.
B. Developer submits complete Final
Parcel Map Application (for financing
purposes only) with related drawings and
documents to the City of Tustin.'
Complete&
Within 30 calendar days following action by
Agency on the DDA.
-1-
C. City approves Pinal Parcel Map (for
financing purposes only).
D. Developer causes recordation of
Final Parcel Map (for financing purposes
only).
E. Developer submits complete
applications with related drawings and
documents to the City for all necessary
entitlement approvals, including
subdivision map approvals.
F. City approves or disapproves all
necessary entitlement approvals.
G. Developer causes the recordation of
the Final Subdivision'Tract Map.
Within 90 calendar days following Developer's
complete submission, and prior to close of
escrow.
At least 5 working days prior to close of escrow
for purchase of the Site.
Within 30 calendar days following action by
Agency on the DDA.
Within 60 c~endar days £ollowifig City's
notification to ,Developer that ail necessary
entitlement applications are complete.
Within 5 working days following approval by
City.
3. Building Permits.
A. Developer submits Final
Construction Drawings and Related
Documents to Community. Development
Department for issuance of Building
Permits.
B. Developer obtains building permits
consistent with any approved phasing.
Within 60 calendar days following the
execution of the DDA.
Within 7 working days folloWing approval by
Community Development Department.
4. Agency Assistance.
A. Agency inspects-work and/or '
materials with .respect to which Developer
submits a payment request as described in
the DDA.
Within 3 working days following Developer's
submission of a request for payment with
respect to such work and/or materials together
with submission of unconditional lien releases
as described in the DDA in the form provided
by the Agency.
-2-
B. Agency approves or disapproves
disbursement of Agency Commercial
Rehabilitation Assistance pursuant to the
DDA.
Within 12 'working days following Agency's
inspection of the work and/or materials with
respect to which Developer has submitted a
payment request.
5. Construction of the Rehabilitation
ImDrovem ents.
A. Developer commences Demolition
of appropriate building improvements.
B. Developer completes Dcrnolition
work: .'-.
·
C. Developer commences construction
of the Rehabilitation Improvements.
D. Developer completes construction of
the Rehabilitation Improvements.
Within 10 working days following issuance of
Demolition Permits by City.
Within 60 calendar days following issuance of
dernolition 15ermits by City.
W'ithin 90 calendar days following the '
execution ofthe DDA.
Within siX (6) months following the execution
of the DDA.
6. Submission of Reauest for Certificate
of Compliance. Developer submits request
for issuance of a Certificate of Compliance
by Agency.
Upon completion of all Rehabilitation
Improvements and satisfaction of all conditions
precedent set forth in the DDA.
7. A~oroval and Issuance of Certificate of
Compliance. The Agency approves or
disapproves the request for issuance of a
Certificate of Compliance. -. ·
Within 10 working days following submission
ofrequest for Certificate of Compliance and
satisfaction of all conditions precedent set forth
in the DDA.
8. RecOrdation of Certificate of
Compliance. The Agency shall cause the
recordation of the Certificate of
· Compliance in the Office of the County
Recorder of Orange County.
Within 5 working days foIIowing issuance of
Certificate of Compliance by Agency.
-3-
9. Submission of Reouest for Release of
Agency Retention. Developer shall .submit
a request for disbursement of Agency
Retention and all supporting
documentation as required by Section
6.C(5) of the DDA.
10. Release of Agencv Retention. The
Agency shall disburse the Agency
Retention mounts to Developer.
Upon issuance of a Certificate of Compliance
by Agency.
Within 30 working days following Developer's
request for Release of Agency Retention.
AGENCY LOAN PROMISSORY NOTE
1101-0.~
67449_1
Attachment 5 to DDA
DO NOT DESTROY THIS NOTE: WHEN PAID, THIS NOTE MUST BE
SURRENDERED TO THE TRUSTEE FOR CANCELLATION, BEFORE
RECONVEYANCE OF THE DEED OF TRUST SECURING THIS NOTE WILL BE
MADE.
PROMISSORY NOTE
(Ford Family Trust)
Not to exceed $165,000.00
Tustin, California
September 4, 1998
!. Loan
For value received, Charles W. Ford and Patricia H. Ford, as Trustees of the FORD
FAMILY TRUST, dated September 21, 1984 ("Obligor"), promise to pay to the TUSTIN
COMMUNITY REDEVELOPMENT AGENCY, a California community redevelopment
agency ("Agency"), or order, at 300 Centennial Way, Tustin, California 92780, Attention:
Assistant Executive Director, or at such other place as the holder of this note may from
time to time designate by written notice to Obligor, a principal sum equal to the total
amount of all disbursements from Agency to Obligor hereunder, such sum not to exceed
the amount of One Hundred Sixty-Five Thousand Dollars ($165,000.00). Such principal
sum shall be due and payable, on the terms and conditions provided herein, in lawful
money ofthe United States of America.
I!. Purpose
This note is made pursuant to that certain Commercial Rehabilitation Project
DisPosition and Development Agreement between Obligor, Agency, and DeBeikes
Investment Company, a California corporation ("Developer") dated ,1998 (the
"Agreement"), and pertains to the rehabilitation of the property described on Attachment
A hereto, which is incorporated herein by this reference (the "Property"). Obligor shall
rehabilitate the Property in accordance with the terms of the Agreement.
The terms used herein shall have the same meanings' as those defined in the
Agreement.
!!!. Disbursement.
A. Loan Amount
The final amount of this note shall be determined as provided in Section 6 of the
Agreement. Obligor shall maintain complete and accurate accounts, invoices, and records
of all monies expended or paid for the Rehabilitation Project. Copies of such documents
shall be made available toAgency at Agency's request.
B. Conditions and Disbursement Schedules
Agency shall disburse, to or for the benefit of Obligor, the following proceeds of this
note, based on the following conditions and disbursement schedule:
1. Conditions for Disbursement. Agency shall disburse to Obligor a total
amount not to exceed One'Hundred Sixty-Five Thousand Dollars ($165,000.00), subject
to a 10% Agency Retention, in increments as provided in subparagraph 2 below, subject
to the following.conditions:
-(a) Obligor and/or Developer shall have caused the recordation of a final
parcel map to establish the Property as a legal parcel for sale and financing under the
California Subdivision Map Act;
(b) Obligor and/or Developer shall have furnished Agency with an ALTA
lender's policy showing: (1) fee simple title to the Property as vested in Obligor, (2) Agency
as an insured lender, and (3) no monetary liens or encumbrances, other than loans
approved under Section 3B(2) of the Agreement, a lien for taxes not yet due and payable,
and the deed of trust securing this note;
(c) Obligor and/or Developer shall have furnished to Agency proof of
insurance coverage as provided in Section 12 of the Agreement;
(d) Neither. Obligor nor Developer shall then be in default under the
Agreement, this note, the deed of trust securing this note, or the Agreement to Be
Recorded Affecting Real Property;
(e) Obligor and/or.Developer shall have obtained all City land use
entitlements and building permits to construct the Site Improvements;
1101-00003
67271_1
September3,1998 2
(f) Obligor and/or Developer shall have prepared or caused to be
prepared all plans, drawings and specifications (the "Plans") necessary to construct and
install the Site Improvements;
(g) Agency shall have received an estoppel notice, in a form prescribed
by Agency, from each Tenant at the Property approving the Scope of Rehabilitation and
expressly releasing the Agency and the City of Tustin from any claims for relocation
assistance, lost rent, constructive eviction, and loss of goodwill; '
(h) With respect to individual disbursements hereunder, the conditions of
subparagraph 2 below shall have been satisfied;
(i) With respect only to the 10% completion retention described in
subparagraph 2 below, Obligor shall have made, and Agency shall have approved, a
request for final progress payment with supporting documentation as described in
subparagraph 2 below;
(j) Agency shall have received written notice from Contractor that Obligor
and Contractor have entered into a Construction Agreement, as described in Section 1D(4)
of the Agreement, with respect to the Rehabilitation Project, 'and that Contractor shall
provide general contractor services with respect to the Rehabilitation Project;
(k) Warmington Old Town Associates, L.P., a California limited
partnership in which Contractor is the general partner and Developer is a limited partner, .
shall have executed' the Residential Project DDA described in Section 5C of the
Agreement, pertaining to the development of certain property adjacent to the Property and
currently owned by Obligor;,
(!) Warmington Old Town Associates, L.P. shall have closed escrow for
the purchase of that adjacent property as described in the Residential Project DDA; and
(m) Obligor shall have deposited the Owner's Contribution, as defined in
Section 5C of the Agreement, in Agency's escrow trust account (an interest-bearing
account) to be used for the payment of Rehabilitation Project costs as shown on the
Rehabilitation Budget.
2. Disbursement Schedule. Obligor or Developer may request periodic
releases of the proceeds of this note. Each such request be made upon the written
authority of Obligor and Developer and shall be accompanied by invoices showing
Obligor's or Developer's payment for the work, supplies, or materials, and unconditional
mechanics lien releases from the contractor, subcontractor, supplier and materialmen for
1101-00003
67271_1
September3.1998
3
the amounts covered by the request. Agency shall periodically make disbursements under
this note upon 'receipt of a request as described above. Disbursements with respect to
Contractor's costs incurred in accordance with the Scope of Rehabilitation, the Site Plan
and .Related Drawings, and the Rehabilitation Budget shall be paid by check payable to
Obligor and Contractor jointly. All Agency disbursements shall be contingent upon
inspection of the work and/or materials by representatives of Agency and confirmation that
the work and/or materials are satisfactory. In addition, Agency shall have the right to
require additional documentation to'insure that it is only paying for work that has been done
and that all affected contractors, suppliers and materiaimen have been paid. Inspection
Shall be done by Agency within three (3) working days of a request by Obligor and
Developer. if the work and/or materials are approved by Agency, payment shall be made
as soon as possible and within twelve (12) working days after the inspection. Agency shall
retain 10% of the amount of each request to insure completion of the work. The retained
funds shall be released pursuant a request for a final progress payment upon evidence that
the work has been satisfactorily completed and contractors, subcontractors, suppliers and
materiaimen have been paid.
IV. Interest
This note shall bear no interest, except as otherwise specifically provided herein in
the event of default.
V. Payment
A, Forgiveness of Note
This note shall be due and payable in full in seven years. One-fifth of the principal
amount of this note shall be forgiven at the end of each of the third (3rd) through seventh
(7th) calendar years, provided a Certificate of Compliance is filed by Agency and none of
the events described in Paragraph B below occur.during the term of this note and prior to
the end of the calendar year in question. For purposes of this note, each calendar year
shall be calculated as 365 days and the first day of the first calendar year shall be the date
immediately following the recording date of the Certificate of Compliance.
B. Default .
in the event of a default by Obligor under the Agreement, under this note, under the
deed of trust securing this note, or under the Agreement to Be Recorded Affecting Real
Property, or if at any time during the term of this note, Obligor (1) sells the Property, (2)
without obtaining Agency's approval under Section 3B(2) of the Agreement, uses all or a
1101-00003
67271_1 4
September 3, 1998
portion of the Property as collateral for financing, (3) assigns or transfers any interest in the
Property (excluding (i) tenant leases, (ii) transfers resulting from provisions of the Ford
Family Trust, in existence on the date of this Agreement, (iii) a transfer toa newly created
trust, of which Charles W. Ford and Patdcia H. Ford are trustors and trustees, for the
benefit of certain charitable organizations, Charles W. Ford, Patricia H. Ford, and/or the
heirs of Chades W. Ford and/or Patricia H. Ford, provided that such newly created trust
takes title to the Property subject to this note and the deed of trust securing this note and
subject to Obligor's and Developer's ongoing obligations under the Agreement and the
Agreement to Be Recorded Affecting Real Property, and (iv) transfers to any heirs of
Charles W. Ford and/or Patricia H. Ford; provided that such transferees, pursuant to (a)
written agreement(s) in form and substance satisfactory to Agency, 'assume the obligations
of Obligor under this note, the deed of trust securing this note, the Agreement and the
Agreement to Be Recorded Affecting Real Property and take title to the Property subject
to this note, the deed of trust securing this note, the Agreement and the Agreement to Be
Recorded Affecting Real Property), or (4) substitutes another general contractor in place
of Contractor, without Agency's approval, Obligor shall repay or cause to be repaid that
portion of this note that has not been forgiven by Agency pursuant to Paragraph A above.
in such event(s), this note shall become immediately due and payable in full, without
notice, at the option of the holder of this'note, and the holder shall have ali rights and
remedies available to it at law or in equity with respect to such default, including, without
limitation, the right to foreclose under the deed of trust securing this note. The failure to
exercise such option shall not constitute a waiver of the right to exercise it in the event of
any subsequent default.
In addition, if Obligor defaults under the terms of the Agreement, this note, the deed
of trust secudng this note, or the Agreement to Be Recorded Affecting Real Property, and
fails to Cure any Such default pursuant to the provisions of Section 13 of the Agreement,
Agency, at its option, may apply any and/or all of the 10% Agency Retention amounts it
then holds hereunder to cure such default. The failure to 'exercise such option shall not
constitute a waiver of the dght to exercise it in the event of any'subsequent default.
..
Vi. Deed of Trust
This note shall be secured by a deed of trust in the form of Attachment 6 to the
Agreement. Such deed of trust shall be executed by Obligor and recorded as soon after
the effective date of the Agreement as possible, and before Agency makes any
disbursements under this note. Notwithstanding the foregoing, however, the deed of trust
shall be secondary to any Financing Conveyances approved by Agency pursuant to
Section 3B(2) of the Agreement.
1101-00003
67271_1
September3,1998 5
· - Vii. General Provisions .
1. Interest and Late Charges. if any payment due ,under this note is not paid
in full on or before the date such payment is due and within thirty (30) days after written
notice of Such default to Obligor, Obligor shall"in addition pay to the holder of this note: (a)
a late charge of five percent (5%) of the amount of such payment then due and payable
but not so received by the holder of this note, which 'late charge shall constitute liquidated
damages under California Civil Code Section 1671(b), and (b) interest on such overdue
payment at the rate of seven percent (7%) per annum simple interest until paid. The
imposition of such late charge does not imply or constitute any agreement of the holder of
'this note to forbear collection of any delinquent amounts or to forbear the exercise of any
other remedy under this note or under the deed of trust securing this note. Obligor
acknowledges that this late charge is reasonable under the circumstances existing at the
date of this note.
Each payment shall be credited first to any late charges and other costs and
expenses of enforcement and collection as provided' herein, then to accrued but unpaid
interest then due, and .then to principal, and interest sha!!, thereupon cease-upon the
principal so credited.
2. Deed of Trust Provisions. This note is Secured by a deed of trust, of even
date herewith, in favor of First American Title Insurance Company, a California corporation,
as Trustee, which encumbers the Property. 'The deed of trust contains the following
provision:
"If Trustor shall sell, convey or alienate the real property ("Property")
encumbered by this Deed of Trust, or any part thereof, or any interest
therein, or shall be divested of its title or any interest therein in any manner
or way, whether voluntarily or involuntarily, without the written' consent of
Beneficiary being first had and obtained, which consent may be withheld for
any reason whatsoever, Beneficiary shall have the right, at its option, except
as prohibited by law, to declare all of the indebtedness or obligation secured
hereby, irrespective of the maturity date specified in any note evidencing the
same, immediately due and payable in full."
The deed of trust also contains the following provision:
'"If a default occurs (a) in the payment of any installment of principal or
interest when due under the note the performance of which is secured
hereby, (b) under any other provision of such note or this Deed of Trust, (c)
under the terms of the Commercial Rehabilitation Project Disposition and
Development Agreement dated ... ,1998 between Trustor and Beneficiary
1101-00003
67271 1
Septe~ber3.199S
(a copy of which is on file with Beneficiary. as a public record and the terms
of which are incorporated herein by reference), or (d) under the terms of the
Agreement to Be Recorded Affecting Real Property between Trustor and
Beneficiary (a copy of-which is on file with Beneficiary as a public record and
the terms of which are incorporated herein by reference), and Trustor fails
to cure such default pursuant to the provisions of Section 13 of the
Commercial Rehabilitation Project Disposition and Development Agreement,
then the entire unpaid principal balance and all unpaid accrued interest
under the note shall at once become due and payable in full, without notice,
at the option of the holder of the note, and Beneficiary shall have all rights
available to it under the note and this Deed of Trust, and as otherwise
provided by law or in equity, including but not limited to the right to foreclose
under this Deed of Trust. The failure to exercise such option shall not
constitute a waiver of the right to exercise it in the event of any subsequent
default."
The deed of trust provisions quoted above are material provisions of this note.
3. Costs, Expenses, and Fees. Obligor agrees to pay the following costs,
expenses, and attorneys' fees paid or incurred by the holder of this note, or adjudged by
a court: (1) reasonable costs of collection or enforcement, including costs, expenses and
attorneys' fees paid or incurred in connection with the collection or enforcement of this
note, whether or not suit is filed; and (2) costs of suit and such sum as the court may
adjudge as attorneys' fees in any action to enforce payment of this note or any part of it.
1101-00003
67271_1
September3,1998 7
FORD COMMERCIAL REHABILITATION PROJECT
PROMISSORY NOTE
(Ford Family Trust).
[signature page]
IN WITNESS VVHEREOF, Obligor has executed this note.
"Obligor"
Chades W. Ford, as Trustee of the FORD
FAMILY TRUST, dated September 21,
1984
Patricia H. Ford, as Trustee of the FORD
FAMILY TRUST, dated September 21,
1984
ACCEPTED BY:
T'U STI N CO M M U N I TY
REDEVELOPMENT AGENCY, a
Califomia community redevelopment
agency
By:
Its:
1101-00003
672~1_1 '
September3,1998
COMMERCIAL REHABILITATION PROJECT
LEGAL DESCRIPTION OF PROPERTY
That portion of land in the City of Tustin, County of Orange, State of California, as
described in Grant Deed recorded January 27, 1989, as Instrument No. 89-049195, Official
Records of said County, described as follows:
Beginning at the most Southerly comer of said land; thence along the Southeast boundary
of said land North 40°40'18" East 116.26 feet; thence North 47°59'01'' West 274.61 feet
to the Westerly boundary of said land; thence along said Westerly boundary and the
Southwesterly boundary of said land the following courses: South 0°32'57'' West 7.35 feet,
South 40°38'26'' West 110.19 feet, South 47°45'13'' East 249.80 feet, and South
49°21'34'' East 20.00 feet to the Point of Beginning.
ATTACHMENT A TO PROMISSORY NOTE
1101-00003
67271_1
September3,1998 9
AGENCY LOAN TRUST DEED '
1101-03
67449_1
Attachment 6 to DDA
o,
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
Tustin Community Redevelopment Agency
300 Centennial Way
Tustin. California 92780
Attention: Christine Shingleton
Assistant Executive Director
FROM P, ECORDLNG FEE PER GOVER.N~fENT CODE § 6103
SPACE ABOVE THIS L~rE FOR RECOR. DER'S USE
DEED OF TRUST WiTH ASSIGNMENT OF RENTS
(SHORT FORM)
(COMMERCIAL REHABILITATION AGENCY LOAN)
This DEED oF TRUST, made , between
Charles W. Ford and Patricia H. Ford as Trustees of the FORD FAMILY TRUST, dated September 21, 1984, herein
called TRUSTOR, whose address is 16492 Barnsta'ble Court, Huntington Beach, California 926;49,
,
FIRST AMERICAN TITLE INSURANCE COMPANY, a California Corporation, herein called TRUSTEE, and
TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a California community redevelopment agency, herein called
BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Tustin,.CountY
of Orange, State of California, described as:
See legal description set forth on Exhibit'1 attached hereto and made a part hereof by this reference;
together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and
conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing {1 ) payment of a principal
sum not to exceed $165,000.00, plus interest thereon, according to the terms of a promissory note or notes of even date herewith
made by Trustor, payable to order of Beneficiary, and extensions or renewals thereof, (2) the performance of each agreement of
Trustor incorporated by reference or contained herein and {3) payment of additional sums and interest thereon which may hereafter
be loaned to Trustor, or his successors or assigns', when evidenced by a promissory note or notes reciting that they are secured by
this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly makes each and
all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in
subdivision A, and it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed
of trust recorded in Orange County August 17, 1964, and in all other counties August 1 8, 1964, in the book and at the page of
Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name
of such county, namely:
(CONTINUED ON NEXT PAGE)
1158 (1/94)
Page I of 4
COUNTY BOOK PAGE COUNT BOOK PAGE COUNTY E PAGE COUNTY BOOK PAGE
Alamel~ll 1288 556 ICings BSa 713 Placer 1 c 379 Sierra 38 187
Almne 3 130-31 Lake 437 110 Plumes 166 1307 SisEiyou 506 762
Amador 133 438 Las.~en 192 367 Riverside 3778 347 Solano 1287 ~ 1
Butte 1330 513 L=s A~geles T-3878 874 Sacramento 5039 124 Sonoma 2067 427
Calaveras 185 338 Ma'-era 911 136 San Benito 300 405 Stanislaus 1970 56
Colusa 323 391 Mar:n 1 BAg 122 San Bemardino 6213 768 Sutter 655 585
Contra Costa -~684 1 Mar:.-osa 90 453 San Francisco A-804 596 Teheme 457 183
Del Notre 101 549 Men,econo 667 99 San Joacluin 2855 283'. Trinity 108 595
E! Dorado 704. 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108
Fresno 5052 623 MoOoc ' 191 93 San Mateo 4778 175 Tuolumne 177 160
Glenn 469 76 Mono 69 302 Santa Barbara 2065 681 Venture 2607 237
Humbolclt 801 63 Monterey 357 239 Santa Ciera 6626 664 Yoio 769 16
Imperial 1189 701 NaDa 704 742 Santa Cruz 1638 607 Yuba 398 693 ·
Inyo 165 672 Neve~-a 363 94 Shasta B00 633
Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964. Page 149774
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties, and printed on pages 3 and 4 hereof) are
by the within reference thereto, incorporated herein and made a part Of this Deed of Trust for all purposes as fully as
if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby,
provided the charge therefor does not exceed the maximum allowed by law. '- '
The undersigned Trustor, requests that a copy of. any-notice of default..and any notice of sale hereunder be mailed to
him at his address hereinbefore set forth.
For additional provisions of this Deed of Trust, refer to the Rider attached hereto as Exhibit 2 and made a part hereof
by this reference.
Signature of Trustor
Signature of Trustor
Charles W. Ford, as Trustee of the FORD FAMILY
TRUST, dated September 21, 1984
}
STATE OF CALrFORNIA }ss
COUNTY OF }
Patricia H. Ford, as Trustee of the FORD FAMILY
TRUST, dated September 21, 1984 ..
On before me,. , personally
appeared
personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature{s) on the instrument the person(s) or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNESS my.hand and official seal.
Signature
,.
(This area for official notarial seal)
1101-00003
67269_1
(CONTINUED ON NEXT .PAGE)
(1/94)
2 of 4
DO NOT RECORD
!
The foliow~ng is a copy of Subdivisions A and B o ,ictitious Deed of TnJst recorded in each =ot~ ~California as stated in the foregoing Deed
of Trust and incorporated by reference in s~id Deetr of Trust as being a part thereof as if set forth at lengzh therein.
A. To protect the security of this Deed of Trust, Trustor agrees: ' .
1 ) To keep said property in good condition and repair, not to remove or demolish any building Thereon; to complete or restore promptly
and in good and workmanlike manner any building Which may be constructed, damaged or destroyed Thereon and to pay when due all claims for
labor performed and materials furnished therefor, to comply with all laws affecting said prope~y or reauirz~.g any alterations or improvements to be
made thereon, not to commit or permit waste thereof; not to commit, suffer or permit any ac: upon sate. =roperty in violation of law; to cultivate,
irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may, be reasonably necessary, the s~ecific
enumerations herein not excluding the general.'
2) To provide, maintain and deliver to Beneficiary fire insurance sazisfactory to and with loss payable to Beneficiary. The amount collected
under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may
determine, or at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall
not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
3} To appear in and defend any action or proceeding purporting to affect the securizy hereof or the rights or powers of Beneficiary or
Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or
proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay; at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant
water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear To be prior or superior
hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do
and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may;, make or do the same in such manner
and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being author[zed to enter upon said property
for such purposes; appear in and defend any ac'~on or proceeding purporting to affect *,he security hereof or the rights or powers of Beneficiary or
Trustee; pay, purchase, contest or compromL~e any encumbrance, charge or lien which in the judgment of either appears to be prior or superior
hereto; and, .in e~ercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trt~-tee, with interest from date of expenditure at the
amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the
obligation secured hereby any*amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement
is demanded.
B. It is mutually agreed:
1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is
hereby as~gned and shall be paid to Beneficiary who may apply or release such monies received by him in the same manner and with the same effect
as above provided for disposition of proceeds of fire or other insurance.
:2) That by accel=ting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt
payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, .upon written request of Beneficiary and presentation
of this Deed and said note for endorsement, a.nd without affecting the personal liability of any person for payment of the indebtedness secured
hereby, Trustee. may: reconvey any part of said property;, consent to the making of any map or plat thereof; join in granting any easement thereon,
or join in any extension agreement or any agreement subordinating the lien or charge hereof.
4} That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said
'-note to Trustee for cancellation and retention or other disposition, as Trustee in its sole discretion may choose and upon payment of its fees, Trustee
shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive
proof of the truthfulness thereof. The Grantee in such reconveyance may be described as 'the person or persons legally entitled thereto'.
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance
of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment
of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they
become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be
appointed by a cour% and without regard ~o the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of
said property or any part thereof, in his own name sue for or otherwise collect such rents, issues, and prof'ff, s, including those past due and unpaid,
and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby,
and in such order as Beneficia~ may determine. The entering upon and taking possession of said property, the collection of such rents, issues and
prot"ffs and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant
to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary
may declare all sums secured hereby immediately due and payable by delivery to Trustee of wr'rtten declaration of default and demand for sale and
of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary
also shall deposit with Trustee this Deed, said note and ali documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having
been' given as then required by law, Trustee, without demand on Trustor, shall sell said p~operty at the time and place fixed, by it in said notice of
sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money
of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time
and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust~ including costs of evidence of title in connection with sale,
Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the
amount allowed by law in effect at the date hereof; ali other sums then secured hereby; and the remainder, if any. to the person or persons legally
entitled thereto.
1101-00003
67269_1 . .
(CONTINUED ON NEXT PAGE)
1158 (I/94)
Page 3 of 4
7) Beneficiary, or any successor ~n owr~rship of any indebtedness secured hereby, ma,--~rom time to time, by instrument in writing,
substitute a successor or successors to any Tn ~,,med herein or acting hereunder, which ir ~en~:, executed by the Beneficiary and duly
acknowledged and recorded in the office of [he rs ~ of/~e county or counties where said p~ope, ~t~eted shall be conclusive proof of proper
substitution of such successor Trustee or Tru~ee'-; Who shall, without conveyance from the Trustee i:~edecessor, succeed to all its title, estate,
rights, powers and duties. Said instrument .mus~ contain the name of the original 'rms-[or, Trustee and Beneficiary hereunder, the book and page
where ~ Deed is recorded and the name and address of the new Trustee. '
8) That this Deed applies to, inures to the benefit of, and binds ali parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein, in this Deed, whenever the context so requires, ~he masculine gender includes the feminine and/or neuter, and the
singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee
is not ob~gated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary
or Trustee shall be a party unless brought by Trustee.
·
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes, and 0f all other indebtedness secured by the foregoing Deed of Trust.
Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby
requested and directed, on payment to you of any sums oWing to you under the terms of said Deed of Trust, to cancel said note or notes above
mentioned, and all other evidences of indebtedne~ secured by said Deed of Trust deliv~, red to you herewith, together with the said Deed of Trust,
and to reconvey, without warranty, to the parties designate.d by the terms of said Deed of Trust, all ~he estate now held by you under ~ same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made.
1101-00003
67269_1
! tSS
1~g¢ 4 of 4
coMl ..... '{ClAL REHABILITATION PRO~,
. .LEGAL DESCRIPTION OF PROPERTY
That portion of land in the City of Tustin, County of Orange, State of California, as described in
Grant Deed recorded January 27, 1989', as Instrument No. 89-049195, Official Records of said County,
described as follows: .
Beginning at the most Southerly comer of said land; thence along the Southeast boundary
of said land North 40°40'18'' East 116.26 feet; thence North 47°59'01'' West 274.61 feet
to the Westerly. boundary of said land; thence along said Westerly boundary and the
Southwesterly boundary of said land the following courses: SOuth 0°32'57'' West 7.35 feet,
South 40 °38'26'' West 110.19 feet, South 47 °45'13" East 249.80 feet, and South 49 °21 '34"
East 20.00 feet to the Point of Beginning.'
EXHIBIT 1
TO DEED OF TRUST
1101-00003
67269_1
RIDER "'ri'ACHED TO AND MADE A PA'-- OF
DEED C ~UST WITH ASSIGNMENT Oi. ~NTS
~ (SHORT FORM)
-.
1. Due on Transfer. If Trustor shall sell, convey or alienate the real property ("Property")
encumbered by this Deed of Trust, or any part thereof, or any interest therein, or shall be divested of its
title or any interest therein in any.manner or way, whether voluntarily or involuntarily, without the written
consent of Beneficiary being first had and obtained, which .consent may be withheld for any reason
whatsoever, Beneficiary shall have the dght, at its option, except as prohibited by law, to declare all of
the indebtedness or obligation secured hereby, irrespective of the maturity date specified in any note
evidencing the same, immediately due and payable in full.
2. A~¢eleration Clause. if a default occurs (a) in the payment of any installment of principal or
interest when due under the note the performance of which is secured hereby, (b) under any other
provision of such note or this Deed of Trust, (c) under the terms of the Commercial Rehabilitation Project
Disposition and Development Agreement dated ,1998 between Trustor and Beneficiary (a copy
of which is on file with Beneficiary asa public record and the l~erms of which are incorporated herein by
reference), or (d) under the terms of the Agreement to Be Recorded Affecting Real Property between
Trustor and-Beneficiary (a copy of which is on file with Beneficiary as a public record and the terms of
which are incorporated herein by reference), and Trustor fails to cure such default pursuant to the
provisions of Section 13 of the Commercial Rehabilitation project Disposition and Development
Agreement, then the entire unpaid principal balance and all unpaid accrued interest under the note shall
at once become due and payable in full, without notice, at the option of the holder of the note, and
Beneficiary shall have all dghts available to it under the note and this Deed of Trust, and as otherwise
provided by law or in equity, including but not limited to the dght to foreclose under this Deed of Trust.
The failure to exercise such option shall not constitute a waiver of the fight to exercise it in the event of
any subsequent default.
3. Commercial R~habilitation Project Di~;po$iti~n and D~velopment Agreement. To the extent
of any inconsistency between the provisions of the Commercial Rehabilitation Project Disposition and
Development Agreement and the provisions of this Deed of Trust, the Commercial Rehabilitation Project
Disposition and Development Agreement shall control.
Trustor.
Charles W. Ford, as Trustee of the FORD FAMILY TRUST,
dated September 21, 1984
Patdcia H. Ford, as Trustee of the FORD FAMILY TRUST,
dated September 21, 1984
1101-00003
67269_1
EXHIBIT 2
TO DEED OF TRUST
CERTIFICATE OF ACCEPTANCE OF DEED OF TRUST
'in Community Redevelopment Ager
This is to certify that the interest in real property conveyed by the deed of trust dated
,199 from Charles W. Ford and Patricia H. Ford, as Trustees of the FORD FAMILY TRUST,
dated September 21, 1984, as truStor, to the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a
governmental agency, as beneficiary ("grantee'S, is hereby accepted by the undersigned officer on behalf
Of the TUSTIN COMMUNITY REDEVELOPMENT AGENCY pursuant to authority conferred by
Resolution No. 95-3 of the Tustin Community Redevelopment Agency adoi:Jted on April 3, 1995, and the
grantee consents to recordation thereof by its duly authorized officer.
Dated:
rUe: [F.~.ec~e Director or Recording Secretary]
1101-0000:~
67269_1
'-SITE pLAN AND RELATED DRAWINGS
1101-03
67449_1
Attachment 7 to DDA
SITE PLAN AND RELATED DRAWINGS
Attachment 7 to DDA
1 of 3
Attachment 7 to DDA
2 of 3
0
Attachment 7 to DDA
3 of 3
AGREEMENT TO BE RECORDED AFFECTING RE. AL PROPERTY
1 I01-.03
67449_1
Attachment 8 to DDA
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF TUSTIN COMMUNITY
REDEVELOPMENT AGENCY
Attention: Christine Shingleton
300 Centennial Way.
Tustin, CA 92780
(Space Above for Recorder)
This Agreement is recorded at the
request and for.the benefit of the City of
Tustin. Community RedeveloPment
Agency and is exempt from payment of a
recording fee pursuant.to Govemment.
Code Section 6103.
CITY OF TUSTIN COMMUNITY
REDEVELOPMENT AGENCY
By:
Its:
Dated: ,1998
CITY OF TUSTIN COMMUNITY REDEVELOPMENT AGENCY
COMMERCIAL REHABILITATION PROJECT
AGREEMENT TO BE RECORDED AFFi~QTING REAL P~OPERTY ....
THIS AGREEMENT is entered into this day of ., 1998, by and between
the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and
politic ("Agency"), and Charles W. Ford and Patricia H. Ford, as trustees of the FORD
FAMILY TRUST, dated September 21, 1984 ("Owner"), with reference to the following:
A. Owner is the fee owner Of record of that certain real property (the "Property")
located in the County of Orange, State of California as described in the attached Exhibit
A. The Property is referred to in the "DDA" (defined in paragraph "C" hereof) as the Site.
B. The Prope .rty is located in the Town Center Redevelopment Project Area (the .
"Project") and. is subject to the provisions of the Redevelopment .Plan for the Project
adopted by Ordinance No. 701 and amended by Ordinances No. 855, 1021 and 1141 by
the City Council of the City of Tustin. Agency has full power and jurisdiction in respect to
the Property pursuant to the Redevelopment Plan.
C. Agency and Owner have entered 'into a Commercial Rehabilitation 'Project
Disposition and Development Agreement dated as of ....... 1998 concerning the
development and use of the Property (the "DDA") which. DDA is on file with Agency as a
public record and is incorporated herein by reference and which DDA. provides for the
execution and recordation of this document. Except as otherwise expressly provided in this
Agreement, all terms shall have the same meanings as set forth in the DDA.
NOW, THEREFORE, AGENCY AND OWNER AGREE AS FOLLOWS:
..
-.
_ _ --- 1'. Owner covenants, by and for itself and anY successors.in interest, that it shall
be bound by the terms, conditions, covenants 'and restrictions as .outlined and detailed in
the DDA and the Redevelopment Plan.
2. Owner covenants, by and for itseff and any successors in interest, that there
shall be no discrimination against or'segregation of any person or group of persons on
account of race, color, creed, religion, sex, .marital status, age, disability, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Site, or any residential uses developed on the Site, nor shall Owner for itself or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of homeowners, tenants, lessees, subtenants, sublessees or vendees of the
Site. The foregoing covenants shall run with the land..
Owner End its successors in interest shall refrain from restricting the rental, sale or
lease (including sublease) of the Site, or any residential units developed on the Site, on the
basi& of race, color,, creed, religion, sex, marital status, .age, disability, national'origin, or
ancestry of any person. All deeds, leases or contracts for the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the Site or any portion thereof, including
ar~y residential units developed on the Site, shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
a;
in deeds: 'q'he 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: (1) them shall be no discrimination against or
segregation of, any person Or group of persons on account of race, color,
creed, religion, sex, marital status, age, disability, national origin or ancestry
1101-O003
67251_1
August 20, 1998
Page 2 of 7
in the sale; lease, sublease, transfer, use, occupancy, tenure or enjoyment ·
of the land herein conveyed, and (2) neither the' grantee himself or herself,
nor any person claiming under or through him or her, shall establish or permit
any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
b.
In leases: 'q-he lessee herein covenants by and for himself or herself, his or
her heirs, executors, administrators and assigns, and all persons claiming
under or through him or her, and this lease is made and accepted upon and
subject to the following conditions:
There shall be no discrimination against or segregation of any person or
group of persons on': account of race, 'color, creed, religion, sex, marital
status, disability, age, ~ncestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under
or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the premises herein leased."
Co
in contracts: 'q'here shall be no discrimination against or segregation of, any
person, or group of persons on account of race, color, creed, religion, sex,
madtal status, age, disability, ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises, 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 premises...The foregoing provisions shall be binding upon
and shall obligate the contracting party or parties and any subcontracting
party or parties, or other transferees under this instrument and shall be
covenants running with the land."
3. The Covenants established in this Agreement shall, without regard to
technical classification and designation, be binding on Owner and any successor in interest
to the Site or any part thereof for the benefit and in favor of Agency, its successors and
assigns, and the City. Such covenants shall Survive the issuance, by Agency, of the
Certificate of Compliance described in the DDA.
1101-0003
67251 1
August20. 1998 Page 3 of 7
4. The Covenants, insofar as theY relate to antidiscdmination and non-
segregation, shall remain in effect in perpetuity. The other Covenants shall expire on
November 22, 2016.
IN WITNESS WHEREOF, Agency and' Owner have executed this Agreement.
"Agency"
Dated:
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a · California community
redevelopment agency
APPROVED AS TO FORM:
By:
Lois E. Jeffrey,
Agency Counsel
By:
Thomas R. Saitareili, Chairman
-,
ATTEST:
.Recording Secretary
"Owner"
Dated:
FORD FAMILY TRUST, dated September 21,
1984
By:
Charles W. Ford, Trustee
By:
Patdcia H. Ford, Trustee
1101-0003
67251_1
August20.1998
Page 4 of 7
ALL PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF
)
) SS:
)
On this ~ day of ,19
, before me,
, Notary Public, personally appeared
Name(s) of Signer(s)
personally known to me - OR
proved'to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the sar~8 in his/her/their authorized capacity(ies), and that by
---his/her/their signature(s) on the instrument the person(s), or the'entity upon behalf'
of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
NOTARY SEAL
Signature of Notary'
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officers
Title(s)
Partner(s)
General Partner of a Limited
Partnership
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other.
SIGNER IS REPRESENTING:
-Name of Person(s) or Entity(les)
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title or Type of
Document:
Number of Pages: Date of Document:
Signer(s) Other Than Named Above:
1101-0003
67251 1
~o. ~8 Page 5 of 7
ALL PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF
)
) SS'
)
On this~ day of
,19
, before me,
appeared
Notary Public, personally
Name(s) of Signer(s)
personally known to me - OR
proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within'instrument and acknowledged to ms that
he/she/they executed the sa~e in his/her/their authorized capac'~y(ies), and that by
----:hisSer/their signature(s) on th'e instrument the-person(s), or-the entity' upon 'behalf
of which the person(s) acted, executed the instrument.
Witness my hand and offiCial seal.
NOTARY SEAL
Signature of Notary
CAPACITY CLAIMED BY SIGNER:
Individual(s)
Corporate
Officers
Title(s)
Partner(s)
General Partner of a Umited
Partnership
Attorney-in-Fact
Trustee(s)
Subscribing Witness
Guardian/Conservator
Other:.
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(les)
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title or Type of
Document:
Number of Pages: Date of Document:
Signer(s) Other Than Named Above:
1101-0003
8~s1_~ Page 6 of 7
August 20. 1998
EXHIBIT A ·
COMMERCIAL REHABILITATION PROJECT
LEGAL DESCRIPTION
That portion of land in the City of Tustin, County of Orange, State of Califomia, as
'described in Grant Deed recorded January 27, 1989, as Instrument No. 89-049195, Official
Records of said County, described as follows:
Beginning at the most Southerly comer of said land; thence along the
Southeast boundary of said land North 40°40'18" East 116.26 feet; thence
North 47°59'01" West 274;.61 feet to the Westerly boundary of said land;
thence along said Westerly, boundary and the Southwesterly boundary of
.said land the following courses: South 0~.32'.57" West 7.35 fcct;' South .......
40°38'26" West 110.19 feet, .South 47°45'13'' East 249.80 feet, and South
49°21'34" East 20.00 feet to the Point of Beginning.
1101-4:X)03
67251_1
August 20. 1998
Page 7 of 7
· .HAZARDOUS WASTE DISCLOSURE
[to be provided by Ford trustees]
Owner hereby states, that due to the age of the buildings, construction materials composed
of asbestos may exist on site. Additionally; Tustin Lawnmower, the tenant who occupies
743 E! Camino Real, maintains an underground tank used to hold material and debris that
is washed off equipment prior to the performance of repair services.
1101~3
67449_!
Attachment 9 to DDA
CERTIFICATE OF INSURANCE
Attachment 10 to DDA
I lOI-O~
67449_1
CITY OF 'rUSTIN REDEVELOPMENT AGENCY '
CERTIFICATE OF INSUR'-'CE AND DESIGNATION OF NAMED 'omoN.~ I~SURF_~
NO MOD/FICA'I ,.,,~VS OR ADDI7'IONS MA Y BE MAOE TL,, i-HIS FORM
CrT'Y' OF TUSTIN REDEVELOPMENT AGENCY
P.O. Box 3539
Tustin. CA 92681-3539
PROJECT:
`ME AND ADDRESS OP INSURED CONTRACTOR:
,ME AND ADDRESS OF INSURANCE AGENCY:
·
,
Company Letter Ac
Company ~ B:
Company l.effer C:
Company Letter D:
COMPANIES AFFORDING COVERAGE ·
(MUST HAVE BEST'S RATING OF AT LEAST A.' VII)
!
TYpe of ~nsta"ance porscy Number EffeclJve Date Expiration Date All ~ in Thousarxts
[ ] Commerc~
General Uabil'Ry
[ ] Occurrence Basis
[ ] Ownm's & Contractors'
Protective.
[ ] Broad Form Prop. Damage
[ ] Explosion, Collapse,
Underground Hazards
General Aggregate
Prods-Comp/Ops Agg.
Pers. & Advg. Injury
Each Occurrence
Fire Damage
(Any One F'u'e)
Medical Expense
(Any One Person)
CSL
Bodily Injury
(Per Person)
Boda~ Injury
0:' er
AUTOMOBILE lIABILITY
[ ] Any Auto
[ ] Ali Owned Autos
[ ] Scheduled Autos
[ ] Hired Autos
[ ] Non-Owned Autos
[ ] Garage t. iabii'~j~
EXCESS LIABIMTY
[ ] Umbrella Form
[ ] Ottmr than Umbrella Form
$
$
EACH OCCURRENCE AGGREGATE
$ $
WORKERS' COMPENSATION
AND EMPLOYER'S LIABILITY
STATUTORY
$.. Each Acddent
$ D~sease. Por~y Una
$ Dbesse-~ ~
OTHER
scription of Operations/Locations/Vehicles/S~ Iterrksc
cert~e~:l that a wa:n~er"of s~'brogafi'on ~s hereby isst:md to the City of Tustin and City of Tustin Redevelopment Agency as pertaJr~ to the
of all Workers ~ insurance. The issuing company wgl give thirty (30) days wrftten notice b3 the City and the RDA prior to
ISSUED:.
REHABILITATION BUDGET
Attachment 11 to DDA
I I O1-03
67449_1
Old Town Commercial Center
C;o~t l=Or¢~a~t
Tustin, California
'.
Summary of Costs
A. Site Plan Costs
B.
C.
D.
E.
F.
G.
REHABILITATION
BUDGET
Commercial Building Elevation Costs
Alberta's Mexican Food Costs
Architecture & Engineermg Costs
Planning I Buiidmg Departments Fees {Io be waived by City)
Conbngency
Contractor O.H. & P
Total Summary of Costs
August :31. 199B
$97,4117.00
$68,816.00
$34,016.00
$17,000.00
$0.00
$0.{~0
$2.27,319.00
1.
2.
3.
4.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22-
23.
24.
25.
26.
27.
28.
29.
30.
31.
Site Plan
Star of Jasmine gro~..nd cover .with irrigation system
Perimeter wall vine plantings on wall [wall & mai~L by resid, dcvel.)
Shielded security lights '
:3' to 5 high roof screen parapet
a. Re-fool
Concrete floor for relocated ~ er~.Jo~4Jre
Painted steel trash enclosure Dates/jambs & locks .
6' planter curbs at new planters
a. saw cut and remove asphalt for planters
Block wing walls for trash encJosures; stuccoed & painted
30' box trees
New pole lights on existing bases
Location of 20' wide storm drain easement for residential prej...ct
Van accessible hand,cap parking space markings & sign
-.Ex~sting parking lot to be repalfe~ capped and restriped
7' high interna~y illuminated monument s~gn with frye sign panels
Asphalt pavmg removed and reptaced w~th colored concrete
Rel:~aced sign lens at ~ive-thr~
Plant annuats mound drive-thru
Existing street trees
New parking lot light stand, ards
Existing bus stop
Existing curb approach
25' wide reciprocal access opening between properties
Existing 6'-8' raised curb separating properlJes
Recessed down lights at new canopy
S' H masonry waa (stucco)
Queen Palms (15' Brown Trunk)
:314' color concrete topping
Paint roof & equipment
Refer to #2
Relocate pubic phone
1 gal. shrubs & irrigation
Attachment 11 to
! of 2
OuanUt~
Cost Extended
Per Unit Cost
1OOje~
25lea.
3lea.
J $12.Ool $t2o0.oo]
I s2°-°°l s5oo.oO|
$3oo.ool $9oo. oo1
4lea. i
$1B.DOl $1S.2OO.OO_J
St?Si
s~.s01 s56o. ool
$2o. ool
s35o.ool
~T~. '1 s~25-001 s250.00i
~J~a. i SB.00o.ool SB.000:boj
2lea' I sz°°°-°°l s,tooo.oo|
' I e,. I so.oo I
~lea. I $0.001 S0.001
~ J ea.I $o-ool s~o-I
~ol~f I so.ool so.ool
30jif i S40. o0j $1.20-0.oo-j
4J ea. I s60o.oot s2-4oo.0oJ
s?2Jsf I s2.ool S~,344.o6]
5,ooolsf I so.6oj s3,ooo.ooI
DDA
olo I' $o-°OI so.oo]
:'lea. I s~oo.ool s20o.001
361ea' I S~Zool $~3ZOOl
Old Town Commercial C .enter
Cost Forecast
Tustin. California
o
33. Relocate drive approach
34. Existing street lights
35. Relocated phone lines
36. Relocate phone
Total Commercial Site Cost
~:ommercla! Bulldino Elevation
1. Decorative foam cornice
Tenant s~gns
3. Wall sconces on each column
4. Decorative lattice work
5. Smooth stucco base
6. ConStruct new front facade
a. footings
b. flaming
¢. stucco
d. patch-in roof at new fascia
Total Item $
7. Relocate Lawnmower Shop
a` demolish appendage
b. improvements to convert to H--4 occupancy
c. rated opening between stores
Total Item 7
8. Stucco e~istmg block waEs
g. Ceramic tile idek panel at storefront glass
10. Epoxy paint storefront
11. Replace ex'ting glass entry doors to stores
12. Stucco transom
Total Commercial Building Elevation Cost
~,Iberta's Mexican Food
1. Stucco parapet at roof
2. Re-roof with'simulated shake c~mpo~ite roof ~e
3. $' high framed i stuccaed roof parapet
4. Ceramic rite wainscot
5. Star of jasmine planU~g with d~Sp irrigalJon system.
6. Frame I Plaster new front & rear ciera§on
a` demoEsh ex~stJng pitch roof
7. Lath & piaster rear block wa~ 1 side wall at drive thru window
Re-paint building -
9. Stucco o/foam cornice
10. Replace Service Counter
11. Refer to Site Plan
12. Tenant sign at new parapet
Total Alberta's Mexican Food CosLs
August 31. 1998
310tlf I 512-001 ,53.720.00]
ea. I 525°'°°1 s2.250.001
~50jsf j 5~o.ool 5t5oo.ool
9lea` I 5150.0ol $1,350.00J
9~a` t 5300.001' 52.700.00
1.?°ol,f I 55,5ol 59.250.00
1,7601sf { ~.501 $7.650. D0
400tsf I 51.501 `5600.00
$20.300.00
1~ 155,000-00t 55,000.00I
1.800 sf I ,$2.001 53.600.00
1 a` I 51.5oo.oo t `51,5oo.oo
L 510.100.00]
2-2OOlsf I `53.501 `57.700.00]
300~f i `58.001 `5:2.400.00]
ilea. i S2.000.OOI `52.000.00]
5I"- I `sgoo.ool 5~.soo.oo]
3061~f I 5~5.001 54,500.00]
1,4oolsf j 52.ool SZBOO.OOl
210{~f t 515.001 53.150-o01
~4°lsf I 57.oot s3,o8o.oo]
Cost on Site Plan Budget
7001st' I 515-001 510,500-00__I
2Jif I ssoo.oo lSl,ooO:ooj
5ool~f I s4.ool s2.ooo.oo]
I 3,°~°I~ t 50.551 stsso.bo--1
{ 148l. I $12'00t 51,776.001
I_ 351. t 516.ool s56o.oo]
I ol ol 5o.ool ~o.ool
ilea` t 53,000.001 s3,000.00]
I s~4,o16.oo1
Attachment 11 to'DDA
2 of 2