HomeMy WebLinkAboutItem 4.9 Veterans Fam Apartment Amend Agmt OF
t'� ,- &2 STAFF REPORT CITY CLERK
CITY COUNCIL File #600-60
DATE: September 15, 2015
TO: Honorable Mayor and City Councilmembers
FROM: Christopher L. Foss, City Manager J
SUBJECT: Veterans Family Apartments Development - Amended and Restated Regulatory
Agreement
Prepared by Amy Cunningham, Assistant to the City Manager; and Tim Cremin,
Principal, Meyers Nave
EXECUTIVE SUMMARY:
The City Council will consider a resolution approving an Amended and Restated Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants with Eden Housing,
Inc. for the Veterans Family Apartments Development. The amended agreement clarifies certain
terms relating to the definitions of Low Income and Very Low Income households.
FINANCIAL IMPACT:
None.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution Approving the Amended and
Restated Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants
for the Veterans Family Apartments Development.
Submitted By Reviewed By
Community Development Director Assistant City Manager
DESCRIPTION:
On June 16, 2015, the City Council approved a number of agreements related to the City's $6.4
million affordable housing loan commitment to Eden Housing, Inc. for the Veterans Family
Apartments Development. One such agreement, the Affordable Housing Regulatory Agreement
and Declaration of Restrictive Covenants dated June 25, 2015, was subsequently recorded on
June 30, 2015 (Instrument Number 2015-180480) in the Alameda County Recorder's Office.
Upon further review, it was determined that the definition of some terms required clarification.
The revised definitions of Low Income Households and Very Low Income Households are
consistent with the definitions in the City's Inclusionary Housing Regulations (Dublin Municipal
Code section 8.68.020D.).
Page 1 of 2 ITEM NO. 4.9
The attached Amended and Restated Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants (Amended and Restated Agreement) amends the terms
identified in the original agreement. These corrections are necessary to clarify income limits
applicable to future residents and to ensure consistency with the definitions used by other
financing sources. If approved, the Amended and Restated Agreement will be recorded with the
Alameda County Recorder's Office and supersede the existing agreement.
Proposed Definition Amendments:
"Low Income Household" shall mean a household with an Adjusted Income that does not
exceed sixty percent L650%) of Aarea Medianmediurn Income; as established and amended
from time to time pursuant. to United states Housing AGt Of 1937 and as
published by HCD. (Attachment 2 - Page 4 of 23)
"Very Low Income Household" shall mean a household with an Adjusted Income that does
not exceed the qualifying,�-its for very low inGGme-households fifty percent (50%) of Area
Median Income, adjusted for Actual Household Size, as established and amended from time to
time pursuant to Section 8 of the United States Housing Act of 1937, and as published by HCD.
(Attachment 2 - Page 5 of 23)
"Very Low Income Units" shall mean the Units, which, pursuant to Section 2.1(b) below, are
required to be occupied by Low Income Households. (Attachment 2 - Page 5 of 23)
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS: 1 . Resolution Approving an Amended and Restated Affordable Housing
Regulatory Agreement
2. Amended and Restated Regulatory Agreement
3. Amended and Restated Regulatory Agreement - Redline
Page 2 of 2
RESOLUTION NO. ** -15
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING AN AMENDED AND RESTATED AFFORDABLE HOUSING
REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS
BETWEEN THE CITY OF DUBLIN AND CORONA CRESCENT, INC., RELATING TO
THE DEVELOPMENT OF AN AFFORDABLE HOUSING PROJECT WITH VETERANS
PREFERENCE
WHEREAS, Corona Crescent, Inc., a California nonprofit public benefit
corporation ("Developer") and the City of Dublin (the "City") entered into an Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants
("Agreement") on property to be developed on a site within the Downtown Dublin
Specific Plan area, located at 6707 Golden Gate Drive, Dublin, California, (APN 941-
1500-030-02) ("Property") dated June 25, 2015, and recorded June 30, 2015, as
Instrument No. 2015-180480 in the Alameda County Recorder's Office.
WHEREAS, this Amended and Restated Agreement amends certain terms
relating to Low Income and Very Low Income Households. The amendments are
consistent with the City's Inclusionary Housing Regulations (Dublin Municipal Code
section 8.68.020D). The changes are necessary to clarify income limits applicable to
future residents and to ensure consistency with the definitions used by other funding
sources; and
WHEREAS, if approved, the Amended and Restated Agreement will be recorded
with the Alameda County Recorder's Office and supersede the existing Agreement.
NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of
Dublin approves and authorizes the City Manager to execute the Amended and
Restated Regulatory Agreement in substantially the form attached hereto as Exhibit A,
upon the satisfaction of the conditions set forth in the Agreement.
PASSED, APPROVED AND ADOPTED this 15th day of September, 2015 by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
2516866.2
Recording Requested by
and when Recorded, return to:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Clerk
EXEMPT FROM RECORDING FEES
PER
GOVERNMENT CODE §§6103, 27383
APN 941-1500-32-02
Space above this line for Recorder's use.
AMENDED AND RESTATED AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
This Amended and Restated Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants (this "Agreement") is dated as of , 20157
by and between the City of Dublin, a municipal corporation ("City") and Corona Crescent, Inc.,
a California nonprofit public benefit corporation ("Owner"). City and Owner are hereinafter
collectively referred to as the "Parties." This Agreement shall be effective as of the date this
Agreement is recorded ("Effective Date").
RECITALS
A. The City and Owner entered into an Affordable Housing Regulatory Agreement
and Declaration of Restrictive Covenants dated June 25, 2015, and recorded June 30, 2015
as Instrument No. 2015-180480 in the Alameda County Recorder's Office. This
Amended and Restated Agreement amends certain terms relating to Low Income and
Very Low Income Households.
B. The City has adopted the City Inclusionary Zoning Regulations Ordinance, set
forth in Chapter 8.68 of the Dublin Municipal Code (the "Ordinance"). The Ordinance at
8.68.030A requires that all new residential development projects of 20 units or more designed
and intended for permanent occupancy shall construct 12.5% of the total number of dwelling
units within the development as affordable units, except as otherwise provided in the
Ordinance.
C. A developer may meet its 8.68.030(A) inclusionary housing requirement through
one or more of the exceptions set in 8.68.040 of the Ordinance, which includes land dedication
to the City or City-designated local non-profit housing developer in lieu of the developer's
construction of some or all of the required affordable units if the City Council finds that (1) the
dedication of land is consistent with the Ordinance's goal of creating housing for very-low, low-
and moderate-income households, (2) the dedicated land is useable for its intended purposes,
is free of toxic substances and contaminated soils, and is fully improved, with infrastructure,
adjacent utilities, grading, and all development-impact fees paid excluding any inclusionary
zoning ordinance fees, and (3) the proposed land dedication is of sufficient size to meet the
requirements set forth in 8.68.040(C)(3). Section 8.68.040 also provides that the City Council
may waive, wholly or partially, the requirements of the Ordinance and approve alternate
methods of compliance which meet the purposes of the Ordinance.
D. Owner acquired certain property located at the corner of Golden Gate Drive
south of Saint Patrick Way in the City of Dublin, California more particularly described as
Exhibit A (the "Property") from BWD Dublin LLC, a California limited liability company ("Market
Rate Developer") who has obtained entitlements for the development of Market Rate
Developer's property consisting of two parcels, one parcel identified as APN 941-1500-015-09
(referred to in these Recitals as Parcel A) located on Golden Gate Avenue between Saint
Patrick Way and Dublin Boulevard, and the other parcel being Owner's Property (identified as
APN 941-1500-032-02 and sometimes referred to in these Recitals as Parcel B). The Market
Rate Developer obtained units from the City's Development Pool in order to construct a mixed-
use project (the "Market Rate Developer's Project") consisting of market-rate residential
rental units and general commercial uses on Parcel A and affordable rental housing on Parcel
B.
E. The Market Rate Developer transferred for a nominal sale price the Property to
Owner, an affordable housing developer, to satisfy the Market Rate Developer's Project
obligations under the City's Inclusionary Zoning Regulations. The transfer of the Property
(Parcel B) to Owner also served as a Community Benefit in exchange for the allocation of
units from the City's Development Pool, approved by City Council Resolution No. 168-14 dated
October 7, 2014.
F. As of the date of this Agreement, the Market Rate Developer's Project is
evidenced in the following conditions of approval: (1) Conditions of approval dated March 26,
2013 for Planned Development Application No. PLPA-2012-0006 for up to 314 market rate
residential units on Parcel A; and (2) Conditions of approval dated March 26, 2013 for
Planning Application No. PLPA-2012-00060 for up to 72 units of affordable rental housing on
Parcel B. Affordable Unit Credits (created by the construction of affordable rental housing units
in excess of the units to be required on Parcel B in accordance with 8.68.060(A) will be owned
and controlled by the Owner of the Property, not the Market Rate Housing Developer.
G. The above recitals relating to the Market Rate Developer's Project are for
information purposes only, and in no way affect the Owner's and City's rights and obligations
under this Agreement with respect to the Property, regardless of whether any Affordable Unit
Credits are used or applied as recited above. The above recitals also are not intended to
relieve the Market Rate Developer of any additional inclusionary obligations the Market Rate
Developer may incur as a result of modifications to development plans for Parcel A existing as
of the date of this Agreement.
H. The Owner intends to develop, construct, own, and operate on the Property the
affordable rental housing project consisting of approximately 66 affordable rental housing units
primarily for Veterans and their families and other Very Low and Low Income families and
related improvements (the "Development"). The Development will include a manager's unit
that will not be subject to affordability restrictions.
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I. The City has entered into or intends to enter into a Predevelopment Loan
Agreement with the Owner pursuant to which the City will loan One Million Four Hundred
Thousand Dollars ($1,400,000) in Affordable Housing funds to assist in financing Owner's
predevelopment costs for the Development (the "Predevelopment Loan"). The City intends to
enter into a Loan Agreement (the "Loan Agreement") with the Owner pursuant to which the
City will loan Six Million Four Hundred Thousand Dollars ($6,400,000) in Affordable Housing
funds, including the $1,400,000 Predevelopment Loan which will be re-loaned or "rolled into"
the $6,400,000 City loan (the "City Loan"). The City Loan will be used, together with funds
obtained from other sources, for the development, construction and operation of the
Development and will make the Development more competitive for the other affordable
housing funding sources.
I. The Parties have agreed to enter into and record this Agreement in order to
satisfy the conditions described in the foregoing Recitals. The Parties intend the covenants
set forth in this Agreement to run with the land and to be binding upon Owner and Owner's
successors and assigns for a period of not less than fifty-five (55) years.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
hereby agree as follows.
1. Definitions. The following terms have the meanings set forth in this Section wherever
used in this Agreement or the attached exhibits.
"Actual Household Size" means the actual number of persons in the applicable
household.
"Adjusted for Family Size Appropriate to the Unit" shall be determined consistent
with Section 50052.5(h) of the California Health and Safety Code and applicable federal rules,
including the rules and regulations applicable to the use of federal low-income housing tax
credits.
',Adjusted Income" means the total anticipated annual income of all persons in a
household, as calculated in accordance with 25 California Code of Regulations Section 6914
or pursuant to a successor State housing program that utilizes a reasonably similar method of
calculation of adjusted income. In the event that no such program exists, the City shall provide
the Owner with a reasonably similar method of calculation of adjusted income as provided in
said Section 6914.
"Affordable Rent" means that the gross monthly rent payable by the tenant does not
exceed one-twelfth of thirty percent (30%) of the applicable AMI limit, Adjusted for Family Size
Appropriate to the Unit, as specified in Section 2.2, less a reasonable utility allowance.
"Area Median Income" or "AMI" means the median gross yearly income adjusted for
Actual Household Size (to qualify residents) or Assumed Household Size (to calculate rents),
as applicable, in the County of Alameda, California, as published from time to time by HCD. In
the event that such income determinations are no longer published, or are not updated for a
period of at least eighteen (18) months, the City shall provide the Owner with other income
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determinations which are reasonably similar with respect to methods of calculation to those
previously published by HCD.
"Assumed Household Size" shall have the meaning set forth in Section 2.2. The
definition is utilized to calculate Affordable Rent and is not intended to be a limit on the number
of persons occupying a unit.
"Claims" is defined in Section 10.
"Eligible Household" means a household for which gross household income upon
initial occupancy does not exceed the applicable maximum income level for a Restricted Unit
as specified in Section 2.1.
"Indemnitees" is defined in Section 10.
"HCD" means the California Department of Housing and Community Development.
"Low Income Household" shall mean a household with an Adjusted Income that does
not exceed sixty percent (60%) of Area Median Income as established and amended from time
to time and as published by HCD.
"Low Income Rent" means the rent allowed to be charged on the Low Income Units
pursuant to Section 2.1(a) below.
"Low Income Units" mean the Units that, pursuant to Section 2.1(a) below, are
required to be occupied by Low Income Households.
"Management and Marketing Plan" is defined in Section 6.4.
"Note" means the Predevelopment Secured Promissory Note dated as of
2015, in the original principal amount of$1,400,000, executed by Corona
Crescent, Inc. in favor of the City. If and when the Predevelopment Secured Promissory Note
is cancelled and replaced, or amended and restated, by the construction and permanent
period Promissory Note in the amount of$6,400,000, the term "Note" shall mean the
$6,400,000 Promissory Note evidencing the City's construction and permanent loan to the
Owner.
',Regulations" means Title 25 of the California Code of Regulations.
"Rent" means the total of monthly payments by the residents of a Unit (other than the
manager's Unit) for the following: (1) use and occupancy of the Unit and land and related
improvements, including parking; (2) any separately charged fees or service charges assessed
by the Owner which are required of all tenants, other than security deposits; (3) the cost of an
adequate level of service for utilities paid by the tenant, including garbage collection, sewer,
water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone
service, cable service or any other utility or service permitted to be excluded from the
calculation of Rent pursuant to the terms of 25 California Code of Regulations Section 6918;
and (4) any other interest, taxes, fees or charges for use of the land or associated facilities and
assessed by a public or private entity other than the Owner, and paid by the tenant.
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"Restricted Unit" means a dwelling unit which is reserved for occupancy at an
Affordable Rent by a household of not more than a specified household income in accordance
with and as set forth in Section 2.1.
"Very Low Income Household" shall mean a household with an Adjusted Income that
does not exceed fifty percent (50%) of Area Median Income, adjusted for Actual Household
Size, as established and amended from time to time pursuant to Section 8 of the United States
Housing Act of 1937, and as published by HCD.
"Very Low Income Rent" shall mean the rent permitted to be charged for a Very Low
Income Unit pursuant to Section 2.1(b) below.
"Very Low Income Units" shall mean the Units, which, pursuant to Section 2.1(b)
below, are required to be occupied by Very Low Income Households.
"Veteran" shall mean a person who served in the active United States military, naval, or
air service, or such other definition of"Veteran" that may be used by any federal or State
agency or public, private or non-profit lender (other than an entity affiliated with the Owner)
providing affordable housing funding to the Development, as identified in the financing plan or
such other financing (e.g., additional, replacement, or refinancing) approved by the City from
time to time.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and
its successors and assigns, that the Property shall be used solely for the operation of an
affordable residential rental development primarily for Veterans consisting of the Development
and related improvements, in compliance with the Loan Agreement and the requirements set
forth herein. Owner represents and warrants that it has not entered into any agreement that
would restrict or compromise its ability to comply with the occupancy and affordability
restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any
agreement that is inconsistent with such restrictions without the express written consent of
City.
2.1 Affordability Requirements.
For a term of fifty-five (55) years commencing upon the date of issuance of a final
certificate of occupancy or equivalent for the Development, forty-nine percent (49%) of the
residential units in the Development will be restricted for occupancy by Very Low and Low
Income Households as set forth below (the "Restricted Units"). The City and the Owner
acknowledge that other financing sources for the Development may impose additional
affordability restrictions on the Development.
(a) Seventy-five (75%) of the Restricted Units (i.e., twenty-four (24) units)
shall be rented to and occupied by or, if vacant, available for occupancy by Low Income
Households; and
(b) Twenty-five (25%) of the Restricted Units (i.e., Eight (8) units) shall be
rented to and occupied by, or if vacant, available for occupancy by Very Low Income
Households.
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In the event that recertification of tenant incomes indicates that the number of
Restricted Units in the Development actually occupied by Eligible Households falls below the
number reserved for each income group as specified in this Section 2.1, Owner shall rectify the
condition by renting the next available dwelling unit(s) in the Development to Eligible
Household(s) until the required income mix is achieved.
2.2 Affordable Unit Credits.
As set forth in the City's Municipal Code, 12.5% of the total dwelling units within the
Development must be affordable units (eight (8) of the sixty-six (66) units). Because the
Development will include sixty-five (65) affordable units, one affordable unit credit certificate
shall be issued for each affordable unit constructed in excess of the number of affordable units
required to be constructed for the Development.
Therefore, at the time building permits are issued, fifty-seven (57) affordable unit
credits will be created (Fifty-eight (58) minus one (1) manager's unit). Forty (40) credits will
be issued to the City of Dublin and seventeen (17) credits will be issued to Eden Housing, Inc.
or an affiliate approved by the City. Credits issued to Eden Housing Inc. will remain effective
until all permanent financing for the Development has closed in sufficient amounts to cover all
development and construction costs as shown in the Form 8609 issued by TCAC. Eden
Housing Inc. agrees to notify the City, in writing, when all permanent financing has closed and
the amount of such permanent financing was sufficient to cover the Development's
development and construction costs.
If Eden Housing Inc. proposes to sell affordable unit credit certificates, it shall first
obtain the consent of the City of Dublin Community Development Director, who will document
the transfer by certificate number. If the sale of affordable unit credit certificates is not needed
by Eden Housing Inc. to cover any gap between the permanent financing and the development
and construction costs of the Development, any unused affordable housing credits will revert
to the City.
Except as set forth in this Agreement, all City rules and regulations set forth in Section
6.68.030(D) of the Inclusionary Zoning Regulations pertaining to affordable housing credits
shall apply .
2.3 Rents for Restricted Units.
(a) Low Income Rent. Subject to Section 2.3(e) below, the Rent charged to
Residents of the Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%)
of sixty percent (60%) of Area Median Income, adjusted for Assumed Household Size.
(b) Very Low Income Rent. Subject to Section 2.3(e) below, the Rent charged to
Residents of the Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%)
of fifty percent (50%) of Area Median Income, adjusted for Assumed Household Size.
(c) In calculating the allowable Rent for the Units, Assumed Household Size shall
be the federally-mandated household size assumptions as set forth in federal statutes or
regulations for programs also providing financial assistance to the Development ("Assumed
Household Size").
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(d) The Rent may only be increased one time per year (unless otherwise approved
in writing by the City) and the Rent level following an increase, or upon a new occupancy, shall
not exceed the Rent level set forth in subsection a above, as applicable. Households
occupying Units shall be given at least thirty (30) days written notice prior to any increase in
the Rent.
(e) It is anticipated that the Development will receive Project-Based Section 8 or
other rental subsidy payments (collectively referred to as the "Rental Subsidies") throughout
the Term. If, during the Term, any change in federal law occurs or any action (or inaction) by
Congress or any federal or State agency, which results in a reduction, termination or
nonrenewal of the Rental Subsidies through no fault of the Owner ("Federal or State Action"),
such that the rental subsidy projected on the approved Financing Plan is no longer available,
the City shall allow the Developer to increase the rents on one or more of the Very Low
Income Units to Low Income Rents only if and to the extent that the Developer has
demonstrated to the satisfaction of the City Manager that such a rent increase is necessary to
maintain the financial stability of the Development. The Developer shall provide the City
Manager with a projected operating budget for the Development showing the impact of the
loss or reduction of the rental subsidy as well as the last two full years of audited financial
statements for the Development showing actual costs and expenses of operating the
Development at the time Developer requests an increase in the rents. The City Manager shall
have authority to approve an increase in the rents on a sufficient number of Very Low Income
Units to a rent not exceeding the Low Income Rent in order to ensure that the Development
generates sufficient income to cover its operating costs and debt service as shown on the
submitted operating budget, provided, however, any such rent increase shall only be allowed
pursuant to a transition plan mutually agreed upon by the City and Developer consistent with
California Tax Credit Allocation Committee ("TCAC") regulations and only to the extent not
otherwise prohibited under the TCAC Regulatory Agreement or any other regulatory
agreement recorded on the Development. Developer shall make all commercially reasonable
efforts to obtain alternative sources of rental subsidies and shall provide the City with annual
progress reports on efforts to obtain alternative sources of rental subsidies that would allow the
rents on the Very Low Income Units to be reduced to the Very Low Income Rents. Upon
receipt of any alternative rental subsidies, the Developer shall reduce the rents on the units
subject to the rent increase to the Very Low Income Rents to the greatest extent possible.
(f) Notwithstanding anything to the contrary contained in this Agreement, if the
other lenders, tax credit investor, or regulatory agencies require stricter household income
eligibility or affordability requirements than those imposed hereby, the requirements of such
other lenders, tax credit investor, or regulatory agencies shall prevail. In meeting all such
income and affordability requirements, the Owner may count each unit at a specific income
eligibility level as meeting the same specific income eligibility level requirement in each of the
lender, tax credit, or regulatory agency regulatory agreements.
2.4 Increase in Tenant Income.
2.4.1 Increase Above Initial Qualifying Income. If upon recertification of tenant
incomes, Owner determines that the household income of a tenant has increased and exceeds
the income level for a Very Low Income Household, Low Income Household, or other
applicable the applicable income category in which the tenant initially qualified under a
regulatory agreement required by other Development financing, then upon expiration of the
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tenant's lease: (i) such tenant's unit shall continue to be considered as a unit in the initial
applicable income category, (ii) upon ninety (90) days' written notice to the Tenant, such
tenant's rent may be increased to an Affordable Rent for the income category for which the
tenant qualifies, and (iii) Owner shall rent the next available residential unit at an Affordable
Rent to a household that qualifies in the income category in which the tenant initially qualified
in order to achieve the affordability requirements of this Agreement.
2.4.2 Non-Qualifying Household. If, upon recertification of tenant incomes,
Owner determines that a tenant's household income has increased to exceed 80% of the Area
Median Income, such tenant shall be permitted to continue to occupy the unit and upon
expiration of the tenant's lease: (i) upon 90 days' written notice, such tenant's rent may be
increased to the lesser of one-twelfth of thirty percent (30%) of the household's actual income
or the fair market rent, (ii) the unit shall continue to be classified as satisfying the income
category for which the tenant originally qualified, and (iii) when the tenant vacates the unit, the
unit shall be rented at an Affordable Rent to an Eligible Household that qualifies in the income
category for which the former tenant initially qualified in order to achieve the affordability
requirements of this Agreement.
In the event of inconsistency between the provisions of Sections 2.4.1 or 2.4.2 and the
rules applicable to the Project in connection with low-income housing tax credits, tax-exempt
bond financing, or financing or rent subsidies provided to the Project by a federal, State or
other public agency, the rules applicable pursuant to such financing or subsidy source shall
prevail.
2.5 Veterans Units. Owner and the City intend for the Development to provide
affordable rental housing for Very Low and Low Income households primarily for Very Low and
Low income Veterans of the United States Armed Forces and their families. Owner shall use
its best efforts to apply for the resources and assistance to provide eligible Veterans and their
families with affordable housing in and services through the Development. Such resources
and assistance include, but are not limited to, applying for rental subsidies and financing
specifically for or targeting Veterans, affirmative marketing which targets Veterans and their
families, contracting with service providers that provide services specifically for or targeted to
the needs of Veterans and their families, and working with the Veterans Administration and
other veterans advocacy groups and organizations in providing such assistance, marketing,
and services.
Applications will be ranked in lottery and preference order. Preferences determine the
ranking by which applicants are selected but will not affect an applicant's eligibility. Preference
order will be determined based on a point preference system established by the City for this
Development with priority given to Veterans (the "Points Preference System"). The City shall
provide its point system and preference order to the Owner for incorporation by reference and
attachment as an exhibit to the Management and Marketing Plan. The City's point system and
preference order referenced in and attached to the Management and Marketing Plan will
supersede the points system in section 8.68.050 of the Dublin Municipal Code, and has been
approved as an alternate means of compliance by the City Council pursuant to Dublin
Municipal Code section 8.86.040(E). The point system and preference order shall not apply to
applicants with VASH Vouchers, and shall be subject to the program requirements of Project-
Based Section 8 or other Rental Subsidies.
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In addition to the other requirements to be set forth in Management and Marketing
Plan under Section 6.4 below, the Management and Marketing Plan shall include Owner's
marketing, services, and other assistance and programs to fulfill the Owner's and City's intent
to operate the Development primarily for Veterans and their families.
Owner currently anticipates receiving project-based Veteran Affairs Supporting Housing
("VASH") vouchers from the Veterans Administration for a portion of the Units in the
Development, with the understanding that current regulations prohibit VASH vouchers from
being committed to a specific development until the development is ready for marketing.
Owner shall throughout the term of this Agreement apply for project-based VASH vouchers for
the Development as are available and shall rent to homeless or previously homeless Veterans
and their families the number of Units supported by project-based VASH Vouchers. Owner
shall apply for other rental subsidies, funding, and financing that are targeted to or specifically
for Veterans and their families. Nothing in this Section 2.5 shall require Owner to delay the
construction, reconstruction, rehabilitation, financing, refinancing of the Development, the
initial marketing or remarketing of Units in the Development, or occupancy in order to apply for
and/or obtain VASH vouchers or other rental subsidy, funding, or assistance requiring or
allowing for the rental of Units in the Development for Veterans and their families.
This Section 2.5 is subject to Development financing approved by the City and to fair
housing laws.
2.6 Manager's Unit. One (1) dwelling unit in the Development may be used as
resident manager's units, and shall be exempt from the occupancy and rent restrictions set
forth in this Agreement.
2.7 No Condominium Conversion. Owner shall not convert the Development to
condominium or cooperative ownership or sell condominium or cooperative rights to the
Development or any part thereof during the term of this Agreement.
2.8 Non-Discrimination; Compliance with Fair Housing Laws.
2.8.1 Fair Housing. Owner shall comply with state and federal fair housing
laws in the marketing and rental of the units in the Development. Owner shall accept as
tenants, on the same basis as all other prospective tenants, persons who are recipients of
federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or
any successor thereto.
2.8.2 Non-Discrimination. Owner shall not restrict the rental, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion
thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital
status, ancestry, or national origin of any person. Owner covenants for itself and all persons
claiming under or through it, and this Agreement is made and accepted upon and subject to
the condition that there shall be no discrimination against or segregation of any person or
group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code in, the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the Property or part thereof, nor shall Owner or any person claiming under or through Owner
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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, of, or for the Property or part thereof. Owner shall
include such provision in all deeds, leases, contracts and other instruments executed by
Owner, and shall enforce the same diligently and in good faith.
3. Reporting Requirements.
3.1 Tenant Certification. Owner or Owner's authorized agent shall obtain from each
household prior to initial occupancy of each Restricted Unit, and on every anniversary
thereafter, a written certificate containing all of the following in such format and with such
supporting documentation as City may reasonably require:
(a) The identity of each household member; and
(b) The total gross household income; and
(c) The number and type of calculated preference points, if applicable.
Owner shall retain such certificates for not less than five (5) years, and upon City's
request, shall provide copies of such certificates to City and make the originals available for
City inspection.
3.2 Annual Report; Inspections. By not later than April 30 of each year during the
term of this Agreement, Owner shall submit an annual report ("Annual Report") to the City in
form satisfactory to City, together with a certification that the Development is in compliance
with the requirements of this Agreement. The Annual Report shall, at a minimum, include the
following information for each dwelling unit in the Development as of the date of the Annual
Report: (i) unit number; (ii) number of bedrooms; (iii) current rent and other charges,
specifying the amount chargeable to the Tenant; and (iv) dates of any vacancies during the
previous year; (v) number of people residing in the unit ; (vi) total gross household income of
residents; (vii) documentation of source of household income; and (viii) the information
required by Section 3.1. The Annual Report shall include a site improvement and maintenance
plan and shall include a report on the current waitlist, including number of households, unit size
desired, typical wait period, and the number and percentage of Veteran households on the
waitlist. Owner shall include with the Annual Report, an income recertification for each
household, documentation verifying tenant eligibility, and such additional information as City
may reasonably request from time to time in order to demonstrate compliance with this
Agreement. The Annual Report shall conform to the format requested by City; provided
however, during such time that the Development is subject to a regulatory agreement
restricting occupancy and/or rents pursuant to requirements imposed in connection with the
use of state or federal low-income housing tax credits or tax-exempt bond financing, Owner
may satisfy the requirements of this Section by providing City with a copy of compliance
reports required in connection with such financing.
Owner shall permit representatives of City to enter and inspect the Property, the
Development, and records, during reasonable business hours in order to monitor compliance
with this Agreement upon forty-eight (48) hours advance notice of such visit to Owner or to
Owner's management agent.
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The Development shall be subject to an annual monitoring fee, as adjusted from time to
time pursuant to the City's Master Fee Schedule.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect through the 55th
anniversary of the issuance of the final certificate of occupancy or equivalent, or the final
inspection for the Development, unless the term is extended by mutual agreement of the
Parties.
4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan. This
Agreement shall remain effective and fully binding for the full term hereof, as such may be
extended pursuant to Section 4.1, regardless of (i) any sale, assignment, transfer, or
conveyance of the Property or the Development or any part thereof or interest therein, (ii) any
payment, prepayment or extinguishment of the Loan or Note, or (iii) any reconveyance of the
Deed of Trust.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to
execute and record appropriate instruments to release and discharge this Agreement;
provided, however, the execution and recordation of such instruments shall not be necessary
or a prerequisite to the termination of this Agreement upon the expiration of the term as such
may be extended pursuant to Section 4.1.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects its
interest in the Property and the Development to the covenants and restrictions set forth in this
Agreement. The City and Owner hereby declare their express intent that the covenants and
restrictions set forth herein shall be deemed covenants running with the land and shall be
binding upon and inure to the benefit of the heirs, administrators, executors, successors in
interest, transferees, and assigns of Owner and City, regardless of any sale, assignment,
conveyance or transfer of the Property, the Development or any part thereof or interest therein.
Any successor-in-interest to Owner, including without limitation any purchaser, transferee or
lessee of the Property or the Development (other than the tenants of the individual dwelling
units within the Development) shall be subject to all of the duties and obligations imposed
hereby for the full term of this Agreement. Each and every contract, deed, or other instrument
affecting or conveying the Property or the Development or any part thereof, shall conclusively
be held to have been executed, delivered and accepted subject to the covenants, restrictions,
duties and obligations set forth herein, regardless of whether such covenants, restrictions,
duties and obligations are set forth in such contract, deed, or other instrument. If any such
contract, deed, or other instrument has been executed prior to the date hereof, Owner hereby
covenants to obtain and deliver to City an instrument in recordable form signed by the parties
to such contract, deed, or other instrument pursuant to which such parties acknowledge and
accept this Agreement and agree to be bound hereby.
Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land, such
covenants shall be enforced as equitable servitudes against the Property and the
Development in favor of City.
6. Property Management; Repair and Maintenance; Marketing.
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6.1 Management Responsibilities. Owner shall be responsible for all management
functions with respect to the Property and the Development, including without limitation the
selection of tenants, certification and recertification of household income and eligibility,
evictions, collection of rents and deposits, maintenance, landscaping, routine and
extraordinary repairs, replacement of capital items, and security. City shall have no
responsibility for management or maintenance of the Property or the Development.
6.2 Management Entity. City shall have the right to review and approve the
qualifications of the management entity proposed by Owner for the Development. The
contracting of management services to a management entity shall not relieve Owner of its
primary responsibility for proper performance of management duties. City hereby approves
Eden Housing Management, Inc. as the initial management entity for the Development.
6.3 Repair, Maintenance and Security. Throughout the term of this Agreement,
Owner shall at its own expense, maintain the Property and the Development in good physical
condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living
conditions in conformity with all applicable state, federal, and local laws, ordinances, codes,
and regulations. Without limiting the foregoing, Owner agrees to maintain the Development
and the Property (including without limitation, the residential units, common areas, meeting
rooms, landscaping, driveways, parking areas and walkways) in a condition free of all waste,
nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances,
and illegal activity, and shall take all reasonable steps to prevent the same from occurring on
the Property or at the Development. Owner shall prevent and/or rectify any physical
deterioration of the Property and the Development and shall make all repairs, renewals and
replacements necessary to keep the Property and the improvements located thereon in good
condition and repair. Owner shall provide adequate security services for occupants of the
Development. The Management and Marketing Plan shall provide for the installation of a
security camera system at initial occupancy. Nothing in the proceeding sentence shall require
the continued use of a camera system if the parties agree upon a different or updated security
system.
6.3.1 City's Right to Perform Maintenance. In the event that Owner breaches
any of the covenants contained in Section 6.3, and such default continues for a period of ten
(10) days after written notice from City (with respect to graffiti, debris, and waste material) or
thirty (30) days after written notice from City (with respect to landscaping, building
improvements and general maintenance), then City, in addition to any other remedy it may
have under this Agreement or at law or in equity, shall have the right, but not the obligation, to
enter upon the Property and perform all acts and work necessary to protect, maintain, and
preserve the improvements and the landscaped areas on the Property. All costs expended by
City in connection with the foregoing, shall constitute an indebtedness secured by a deed of
trust in favor of the City, which shall be recorded upon the closing of the City Loan (the "Deed
of Trust"), and shall be paid by Owner to City upon demand. All such sums remaining unpaid
thirty (30) days following delivery of City's invoice therefor shall bear interest at the lesser of
ten percent (10%) per annum or the highest rate permitted by applicable law.
6.4 Management and Marketing Plan. Prior to the start of construction of the
Development, Owner shall submit for City review and approval, a plan for managing the
Property and marketing the Project. (the "Management and Marketing Plan"). The
Management and Marketing Plan shall be updated after two (2) years and then again every
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five (5) years. The City will provide no less than 90 days' notice to Owner before each
Management and Marketing Plan is due. Updates and revisions to the Management and
Marketing Plan may be subject to prior approval of Owner's investor limited partner or other
project lenders before being implemented.
The Management and Marketing Plan shall describe the management team and shall
address how the Owner and the management entity plan to manage and maintain the Property
and the Development. The Management and Marketing Plan shall include the proposed
management agreement and the form of rental agreement that Owner proposes to enter into
with Development tenants. The Management and Marketing Plan shall address in detail how
Owner plans to market the Restricted Units to prospective Eligible Households and targeted
outreach to Veterans in accordance with the City's Inclusionary Zoning Ordinance Regulations,
subject to any City waivers for this Development, fair housing laws and this Agreement,
Owner's tenant selection criteria, and how Owner plans to certify the eligibility of Eligible
Households. The Management and Marketing Plan shall also address Owner's plans
concerning Veterans set forth in Section 2.5 of this Agreement. Owner shall abide by the
terms of the Management and Marketing Plan in marketing, managing, and maintaining the
Property and the Development, and throughout the term of this Agreement, shall submit
proposed modifications to City for review and approval.
The Management and Marketing Plan shall also include the following:
(a) Establishment of a "crime free" environment by participation in the City of
Dublin's Crime Free Multi Housing Program, to the extent such participation is
consistent or not in conflict with applicable policy and procedures established by
the United States Department of Veterans Affairs.
(b) Description of targeted outreach to Veterans.
(c) Plan to provide on-site programs and services for Veterans and low income
residents.
6.5 Approval of Amendments. If City has not responded to any submission of the
Management and Marketing Plan, the proposed management entity, or a proposed
amendment or change to any of the foregoing within forty-five (45) days following City's receipt
of such plan, proposal or amendment, the plan, proposal or amendment shall be deemed
approved by City.
6.6 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all
fees, assessments, taxes, charges, liens and levies applicable to the Property or the
Development, including without limitation possessory interest taxes, if applicable, imposed by
any public entity, and shall pay such charges prior to delinquency. However, Owner shall not
be required to pay any such charge so long as (a) Owner is contesting such charge in good
faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any
contested liabilities, and (c) on final determination of the proceeding or contest, Owner
immediately pays or discharges any decision or judgment rendered against it, together with all
costs, charges and interest. The Parties acknowledge that the Owner will apply for exemption
from property tax under Revenue and Taxation Code Section 214.
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6.7 Insurance Coverage. Throughout the term of this Agreement Owner shall at
Owner's expense, maintain in full force and effect insurance coverage as specified in the Deed
of Trust and shall comply with all insurance requirements set forth in the Deed of Trust.
6.8 Property Damage or Destruction. If any part of the Development is damaged or
destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent
restriction requirements set forth in this Agreement. Such work shall be commenced as soon
as reasonably practicable after the damage or loss occurs and shall be completed within one
year thereafter or as soon as reasonably practicable, provided that insurance proceeds are
available to be applied to such repairs or restoration within such period and the repair or
restoration is financially feasible. During such time that lenders or low-income housing tax
credit investors providing financing for the Development impose requirements that differ from
the requirements of this Section the requirements of such lenders and investors shall prevail.
7. Recordation; Subordination. This Agreement shall be recorded in the Official Records
of Alameda County. Owner hereby represents, warrants and covenants that with the
exception of easements of record, absent the written consent of City, this Agreement shall not
be subordinated in priority to any lien (other than those pertaining to taxes or assessments),
encumbrance, or other interest in the Property or the Development. If at the time this
Agreement is recorded, any interest, lien, or encumbrance has been recorded against the
Development in position superior to this Agreement, upon the request of City, Owner hereby
covenants and agrees to promptly undertake all action necessary to clear such matter from
title or to subordinate such interest to this Agreement consistent with the intent of and in
accordance with this Section 7, and to provide such evidence thereof as City may reasonably
request. Notwithstanding the foregoing, the City agrees that City will not withhold consent to
reasonable requests for subordination of this Agreement to deeds of trust provided for the
benefit of lenders identified in the Financing Plan (as defined in the Loan Agreement) as it may
be updated with City approval, provided that the instruments effecting such subordination
include reasonable protections to the City in the event of default, including without limitation,
extended notice and cure rights.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement,
except as permitted pursuant to the Loan Agreement or this Agreement, Owner shall not
directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or
partial sale, transfer, conveyance, assignment or lease (collectively, "Transfer") of the whole or
any part of the Property, the Development, or the improvements located on the Property,
without the prior written consent of the City, which approval shall not be unreasonably
withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly
permitted by this Agreement or the Loan Agreement, Owner shall not undergo any significant
change of ownership without the prior written approval of City. For purposes of this
Agreement, a "significant change of ownership" shall mean a transfer of the beneficial interest
of more than twenty-five percent (25%) in aggregate of the present ownership and /or control
of Owner, taking all transfers into account on a cumulative basis; provided however, neither
the admission of an investor limited partner, nor the transfer by the investor limited partner to
subsequent limited partners shall be restricted by this provision.
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8.2 Permitted Transfers. Notwithstanding any contrary provision hereof, the
prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of
easements or permits to facilitate development of the Property; (ii) the dedication of any
property required pursuant to the Loan Agreement; (iii) the lease of individual dwelling units to
tenants for occupancy as their principal residence in accordance with this Agreement or the
lease of commercial space to commercial tenants, if applicable; (iv) assignments creating
security interests for the purpose of financing the acquisition, construction, or permanent
financing of the Development or the Property in accordance with the Loan Agreement, or
Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure
of, such a security interest; (v) a Transfer to a limited partnership in which the managing
general partner is a tax-exempt entity under the direct control of or under common control with
Eden; (vi) the admission of limited partners and any transfer of limited partnership interests in
accordance with Owner's agreement of limited partnership (the "Partnership Agreement"),
provided that the Partnership Agreement and/or the instrument of Transfer provides for
development and operation of the Property and Development in a manner consistent with the
Loan Agreement and this Agreement; (vii) the removal of the general partner by the investor
limited partner for a default under the Partnership Agreement, provided the replacement
general partner is reasonably satisfactory to City; or (viii) the transfer of the General Partner's
interest to a nonprofit entity that is or its member/manager is tax-exempt under Section
501(c)(3) of the Internal Revenue Code of 1986 as amended, provided such replacement
general partner is reasonably satisfactory to City.
In addition, City shall not withhold its consent to the sale, transfer or other disposition of
the Development, in whole or in part, provided that (a) the Development is and shall continue
to be operated in compliance with this Agreement; (b) the transferee expressly assumes all
obligations of Owner imposed by this Agreement; (c) the transferee executes all documents
reasonably requested by the City with respect to the assumption of the Owner's obligations
under this Agreement, and upon City's request, delivers to the City an opinion of its counsel to
the effect that such document and this Agreement are valid, binding and enforceable
obligations of such transferee; and (d) either (A) the transferee has at least three (3) years'
experience in the ownership, operation and management of low-income multifamily rental
housing projects of similar size to that of the Development, without any record of material
violations of nondiscrimination provisions or other state or federal laws or regulations
applicable to such projects, or (B) the transferee agrees to retain a property management firm
with the experience and record described in subclause (A).
Article VI of the Loan Agreement shall govern procedures applicable to requests for,
and City's approval of, proposed Transfers. Unless waived by City, Owner shall reimburse City
for all City costs, including but not limited to reasonable attorneys' fees, incurred in reviewing
instruments and other legal documents proposed to effect a Transfer under this Agreement
and in reviewing the qualifications and financial resources of a proposed successor, assignee,
or transferee within ten (10) days following City's delivery of an invoice detailing such costs.
8.3 Encumbrances. Owner agrees to use best efforts to ensure that any
subordination agreement recorded against the Property, the Development or part thereof for
the benefit of a lender other than City ("Third-Party Lender") shall contain each of the
following provisions: (i) Third-Party Lender shall use its best efforts to provide to City a copy of
any notice of default issued to Owner concurrently with provision of such notice to Owner;
(ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner
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within the same period of time provided to Owner for such cure extended by an additional sixty
(60) days; (iii) provided that City has cured any default under Third-Party Lender's deed of trust
and other loan documents, City shall have the right to foreclose City's Deed of Trust and take
title to the Development without acceleration of Third-Party Lender's debt; and (iv) City shall
have the right to transfer the Development without acceleration of Third-Party Lender's debt to
a nonprofit corporation or other entity which shall own and operate the Development as an
affordable rental housing project, subject to the prior written consent of the Third-Party Lender.
Owner agrees to provide to City a copy of any notice of default Owner receives from any
Third-Party Lender within three (3) business days following Owner's receipt thereof.
8.4 Mortgagee Protection. No violation of any provision contained herein shall
defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for
value upon all or any portion of the Development or the Property, and the purchaser at any
trustee's sale or foreclosure sale shall not be liable for any violation of any provision hereof
occurring prior to the acquisition of title by such purchaser. Promptly upon determining that a
violation of this Agreement has occurred, City shall give written notice to the holders of record
of any mortgages or deeds of trust encumbering the Development or the Property that such
violation has occurred.
9. Default and Remedies.
9.1 Events of Default. The occurrence of any one or more of the following events
shall constitute an event of default hereunder ("Event of Default"):
(a) The occurrence of a Transfer in violation of Section 8 hereof;
(b) Owner's failure to maintain insurance on the Property and the
Development as required hereunder, and the failure of Owner to cure such default within ten
(10) days;
(c) Subject to Owner's right to contest the following charges, Owner's failure
to pay taxes or assessments due on the Property or the Development or failure to pay any
other charge that may result in a lien on the Property or the Development, and Owner's failure
to cure such default within thirty (30) days of delinquency;
(d) A default has been declared under any loan secured by a mortgage,
deed of trust or other security instrument recorded against the Property and remains uncured
beyond any applicable cure period such that the holder of such security instrument has the
right to accelerate repayment of such loan;
(e) A default arises under the Loan Agreement, the Note, the Deed of Trust
or any other City Document (as defined in the Loan Agreement) and remains uncured beyond
the expiration of any applicable cure period;
(f) Owner's default in the performance of any term, provision or covenant
under this Agreement (other than an obligation enumerated in this Subsection 9.1), and unless
such provision specifies a shorter cure period for such default, the continuation of such default
for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non-
monetary default following the date upon which City shall have given written notice of the
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default to Owner, or if the nature of any such non-monetary default is such that it cannot be
cured within thirty (30) days, Owner's failure to commence to cure the default within thirty (30)
days and thereafter prosecute the curing of such default with due diligence and in good faith,
but in no event longer than ninety (90) days from receipt of the notice of default or such longer
period of time as City may allow.
The limited partners of Owner shall have the right to cure any default of Owner
hereunder upon the same terms and conditions afforded to Owner. Provided that City has
been given written notice of the address for delivery of notices to the limited partners, City shall
provide any notice of default hereunder to the limited partners concurrently with the provision
of such notice to Owner, and as to the limited partners, the cure periods specified herein shall
commence upon the date of delivery of such notice in accordance with Subsection 11.3.
9.2 Remedies. Upon the occurrence of an Event of Default and its continuation
beyond any applicable cure period, City may proceed with any of the following remedies:
A. Bring an action for equitable relief seeking the specific performance of the terms
and conditions of this Agreement, and/or enjoining, abating, or preventing any
violation of such terms and conditions, and/or seeking declaratory relief;
B. Accelerate and declare the balance of the Note and interest accrued thereon
immediately due and payable and proceed with foreclosure under the Deed of
Trust;
C. For violations of obligations with respect to rents for Restricted Units, impose as
liquidated damages a charge in an amount equal to the actual amount collected
in excess of the Affordable Rent;
D. Pursue any other remedy allowed at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The City may
exercise from time to time any rights and remedies available to it under applicable law or in
equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this
Agreement.
10. Indemnity. Notwithstanding any other provision in the Loan Agreement or other
documents executed in connection with the City Loan, Owner shall indemnify, defend (with
counsel approved by City) and hold City and their respective elected and appointed officers,
officials, employees, agents, and representatives (collectively, the "Indemnitees") harmless
from and against all liability, loss, cost, expense (including without limitation attorneys' fees
and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding,
penalty, deficiency, fine, order, and damage (all of the foregoing collectively "Claims") arising
directly or indirectly, in whole or in part, as a result of or in connection with Owner's
construction, management, or operation of the Property and the Development or any failure to
perform any obligation as and when required by this Agreement. Owner's indemnification
obligations under this Section 10 shall not extend to Claims resulting solely from the gross
negligence or willful misconduct of Indemnitees. It is further agreed that City does not and shall
not waive any rights against Owner that it may have by reason of this indemnity and hold
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harmless agreement because of the acceptance by City, or the deposit with City by Owner, of
any of the insurance policies described in this Agreement or the Loan Agreement.
The provisions of this Section 10 shall survive the expiration or earlier termination of
this Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a written
instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must
be in writing. No waiver shall be implied from any delay or failure by City to take action on any
breach or default hereunder or to pursue any remedy allowed under this Agreement or
applicable law. No failure or delay by City at any time to require strict performance by Owner
of any provision of this Agreement or to exercise any election contained herein or any right,
power or remedy hereunder shall be construed as a waiver of any other provision or any
succeeding breach of the same or any other provision hereof or a relinquishment for the future
of such election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to
this Agreement shall be made in writing, and sent to the Parties at their respective addresses
specified below or to such other address as a Party may designate by written notice delivered
to the other parties in accordance with this Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered upon receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to
the sender's account, in which case notice is effective on delivery if delivery is confirmed by
the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered upon
transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class
or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the
accurate transmission thereof. Any notice given by facsimile shall be considered to have been
received on the next business day if it is received after 5:00 p.m. recipient's time or on a
nonbusiness day.
City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Facsimile: (925) 833-6651
Owner: Corona Crescent, Inc.
22645 Grand Street
Hayward, CA 94541-5031
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Attention: President
Facsimile: (510) 582-6523
With a copy to Owner's investor limited partner:
[to be provided]
11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the
other such other documents and instruments, and take such other actions, as either shall
reasonably request as may be necessary to carry out the intent of this Agreement.
11.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
11.6 Action by the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or
permitted under this Agreement, such action shall be in writing, and such action may be given,
made or taken by the City's City Manager or by any person who shall have been designated by
the City Manager, without further approval by the City Council.
11.7 Non-Liability of City Officials, Officers, Directors, Employees and Agents. No
member, official, employee or agent of the City shall be personally liable to Owner or any
successor in interest, in the event of any default or breach by the City, or for any amount of
money which may become due to Owner or its successor or for any obligation of City under
this Agreement. No director, officer, employee or agent of the Owner shall be personally liable
to the City or any successor in interest, in the event of any default or breach by the Owner, or
for any amount of money which may become due to the City or its successor or for any
obligation of the Owner under this Agreement.
11.8 Headings; Construction. The headings of the sections and paragraphs of this
Agreement are for convenience only and shall not be used to interpret this Agreement. The
language of this Agreement shall be construed as a whole according to its fair meaning and
not strictly for or against any Party.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with the laws
of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to
interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover
all reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of
the remaining provisions shall not be affected or impaired thereby.
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11.13 Entire Agreement. This Agreement, together with the Loan Agreement, the
Note and the Deed of Trust contains the entire agreement of Parties with respect to the subject
matter hereof, and supersedes all prior oral or written agreements between the Parties with
respect thereto.
11.14 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGES.
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IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory
Agreement and Declaration of Restrictive Covenants as of the date first written above.
CITY
City of Dublin, a municipal corporation
By:
Christopher Foss, City Manager
Attest:
City Clerk
Approved as to form:
City Attorney
DEVELOPER
Corona Crescent, Inc.
By:
Linda Mandolini,
SIGNATURES MUST BE NOTARIZED.
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STATE OF CALIFORNIA )
COUNTY OF ALAMEDA )
On , 20_, before me, (here insert name and
title of the officer), personally appeared , who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
COUNTY OF ALAMEDA )
On , 20_7 before me, (here insert name and
title of the officer), personally appeared , who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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Exhibit A
PROPERTY
Real property in the City of Dublin, County of Alameda, State of California, described
as follows:
PARCEL D, AS SHOWN ON PARCEL MAP 2621, FILED DECEMBER 20, 1978 IN BOOK
107, PAGE 50 OF MAPS, ALAMEDA COUNTY RECORDS.
EXCEPTING THEREFROM, THAT PORTION CONVEYED IN THE DEED TO THE
COUNTY OF ALAMEDA, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA,
RECORDEDD FEBRUARY 14, 2004 AS INSTRUMENT NO. 2002-073439 OF OFFICIAL
RECORDS.
APN: 941-1500-032-02
2516862.1
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Recording Requested by
and when Recorded, return to:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Clerk
EXEMPT FROM RECORDING FEES
PER
GOVERNMENT CODE §§6103, 27383
APN 941-1500-32-02
Space above this line for Recorder's use.
AMENDED AND RESTATED AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
This Amended and Restated Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants (this "Agreement") is dated as of 12015,
by and between the City of Dublin, a municipal corporation ("City") and Corona Crescent, Inc.,
a California nonprofit public benefit corporation ("Owner"). City and Owner are hereinafter
collectively referred to as the "Parties." This Agreement shall be effective as of the date this
Agreement is recorded ("Effective Date").
RECITALS
A. The City and Owner entered into an Affordable Housing Regulatory Agreement
and Declaration of Restrictive Covenants dated June 25, 2015, and recorded June 30, 2015
as Instrument No. 2015-180480 in the Alameda County Recorder's Office. This
Amended and Restated Agreement amends certain terms relating to Low Income and
Very Low Income Households.
A-.B. The City has adopted the City Inclusionary Zoning Regulations Ordinance, set
forth in Chapter 8.68 of the Dublin Municipal Code (the "Ordinance"). The Ordinance at
8.68.030A requires that all new residential development projects of 20 units or more designed
and intended for permanent occupancy shall construct 12.5% of the total number of dwelling
units within the development as affordable units, except as otherwise provided in the
Ordinance.
A developer may meet its 8.68.030(A) inclusionary housing requirement through
one or more of the exceptions set in 8.68.040 of the Ordinance, which includes land dedication
to the City or City-designated local non-profit housing developer in lieu of the developer's
construction of some or all of the required affordable units if the City Council finds that (1) the
dedication of land is consistent with the Ordinance's goal of creating housing for very-low, low-
and moderate-income households, (2) the dedicated land is useable for its intended purposes,
is free of toxic substances and contaminated soils, and is fully improved, with infrastructure,
adjacent utilities, grading, and all development-impact fees paid excluding any inclusionary
zoning ordinance fees, and (3) the proposed land dedication is of sufficient size to meet the
requirements set forth in 8.68.040(C)(3). Section 8.68.040 also provides that the City Council
may waive, wholly or partially, the requirements of the Ordinance and approve alternate
methods of compliance which meet the purposes of the Ordinance.
.TL... Owner acquired certain property located at the corner of Golden Gate Drive
south of Saint Patrick Way in the City of Dublin, California more particularly described as
Exhibit A (the "Property") from BWD Dublin LLC, a California limited liability company ("Market
Rate Developer") who has obtained entitlements for the development of Market Rate
Developer's property consisting of two parcels, one parcel identified as APN 941-1500-015-09
(referred to in these Recitals as Parcel A) located on Golden Gate Avenue between Saint
Patrick Way and Dublin Boulevard, and the other parcel being Owner's Property (identified as
APN 941-1500-032-02 and sometimes referred to in these Recitals as Parcel B). The Market
Rate Developer obtained units from the City's Development Pool in order to construct a mixed-
use project (the "Market Rate Developer's Project") consisting of market-rate residential
rental units and general commercial uses on Parcel A and affordable rental housing on Parcel
B.
The Market Rate Developer transferred for a nominal sale price the Property to
Owner, an affordable housing developer, to satisfy the Market Rate Developer's Project
obligations under the City's Inclusionary Zoning Regulations. The transfer of the Property
(Parcel B) to Owner also served as a Community Benefit in exchange for the allocation of
units from the City's Development Pool, approved by City Council Resolution No. 168-14 dated
October 7, 2014.
As of the date of this Agreement, the Market Rate Developer's Project is
evidenced in the following conditions of approval: (1) Conditions of approval dated March 26,
2013 for Planned Development Application No. PLPA-2012-0006 for up to 314 market rate
residential units on Parcel A; and (2) Conditions of approval dated March 26, 2013 for
Planning Application No. PLPA-2012-00060 for up to 72 units of affordable rental housing on
Parcel B. Affordable Unit Credits (created by the construction of affordable rental housing units
in excess of the units to be required on Parcel B in accordance with 8.68.060(A) will be owned
and controlled by the Owner of the Property, not the Market Rate Housing Developer.
The above recitals relating to the Market Rate Developer's Project are for
information purposes only, and in no way affect the Owner's and City's rights and obligations
under this Agreement with respect to the Property, regardless of whether any Affordable Unit
Credits are used or applied as recited above. The above recitals also are not intended to
relieve the Market Rate Developer of any additional inclusionary obligations the Market Rate
Developer may incur as a result of modifications to development plans for Parcel A existing as
of the date of this Agreement.
.5t_.I .. The Owner intends to develop, construct, own, and operate on the Property the
affordable rental housing project consisting of approximately 66 affordable rental housing units
primarily for Veterans and their families and other Very Low and Low Income families and
related improvements (the "Development"). The Development will include a manager's unit
that will not be subject to affordability restrictions.
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H-.1. The City has entered into or intends to enter into a Predevelopment Loan
Agreement with the Owner pursuant to which the City will loan One Million Four Hundred
Thousand Dollars ($1,400,000) in Affordable Housing funds to assist in financing Owner's
predevelopment costs for the Development (the "Predevelopment Loan"). The City intends to
enter into a Loan Agreement (the "Loan Agreement") with the Owner pursuant to which the
City will loan Six Million Four Hundred Thousand Dollars ($6,400,000) in Affordable Housing
funds, including the $1,400,000 Predevelopment Loan which will be re-loaned or "rolled into"
the $6,400,000 City loan (the "City Loan"). The City Loan will be used, together with funds
obtained from other sources, for the development, construction and operation of the
Development and will make the Development more competitive for the other affordable
housing funding sources.
I. The Parties have agreed to enter into and record this Agreement in order to
satisfy the conditions described in the foregoing Recitals. The Parties intend the covenants
set forth in this Agreement to run with the land and to be binding upon Owner and Owner's
successors and assigns for a period of not less than fifty-five (55) years.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
hereby agree as follows.
1. Definitions. The following terms have the meanings set forth in this Section wherever
used in this Agreement or the attached exhibits.
"Actual Household Size" means the actual number of persons in the applicable
household.
"Adjusted for Family Size Appropriate to the Unit" shall be determined consistent
with Section 50052.5(h) of the California Health and Safety Code and applicable federal rules,
including the rules and regulations applicable to the use of federal low-income housing tax
credits.
',Adjusted Income" means the total anticipated annual income of all persons in a
household, as calculated in accordance with 25 California Code of Regulations Section 6914
or pursuant to a successor State housing program that utilizes a reasonably similar method of
calculation of adjusted income. In the event that no such program exists, the City shall provide
the Owner with a reasonably similar method of calculation of adjusted income as provided in
said Section 6914.
"Affordable Rent" means that the gross monthly rent payable by the tenant does not
exceed one-twelfth of thirty percent (30%) of the applicable AMI limit, Adjusted for Family Size
Appropriate to the Unit, as specified in Section 2.2, less a reasonable utility allowance.
"Area Median Income" or "AMI" means the median gross yearly income adjusted for
Actual Household Size (to qualify residents) or Assumed Household Size (to calculate rents),
as applicable, in the County of Alameda, California, as published from time to time by HCD. In
the event that such income determinations are no longer published, or are not updated for a
period of at least eighteen (18) months, the City shall provide the Owner with other income
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determinations which are reasonably similar with respect to methods of calculation to those
previously published by HCD.
"Assumed Household Size" shall have the meaning set forth in Section 2.2. The
definition is utilized to calculate Affordable Rent and is not intended to be a limit on the number
of persons occupying a unit.
"Claims" is defined in Section 10.
"Eligible Household" means a household for which gross household income upon
initial occupancy does not exceed the applicable maximum income level for a Restricted Unit
as specified in Section 2.1.
"Indemnitees" is defined in Section 10.
"HCD" means the California Department of Housing and Community Development.
"Low Income Household" shall mean a household with an Adjusted Income that does
not exceed sixty percent (-650%� of Aarea Median mediurn lincome, as established and
amended from time to time p ,rs an+ +o SeGtien 8 of the United States uoi sing Ant of 1937
and as published by HCD.
"Low Income Rent" means the rent allowed to be charged on the Low Income Units
pursuant to Section 2.1(a) below.
"Low Income Units" mean the Units that, pursuant to Section 2.1(a) below, are
required to be occupied by Low Income Households.
"Management and Marketing Plan" is defined in Section 6.4.
"Note" means the Predevelopment Secured Promissory Note dated as of
2015, in the original principal amount of$1,400,000, executed by Corona
Crescent, Inc. in favor of the City. If and when the Predevelopment Secured Promissory Note
is cancelled and replaced, or amended and restated, by the construction and permanent
period Promissory Note in the amount of$6,400,000, the term "Note" shall mean the
$6,400,000 Promissory Note evidencing the City's construction and permanent loan to the
Owner.
"Regulations" means Title 25 of the California Code of Regulations.
"Rent" means the total of monthly payments by the residents of a Unit (other than the
manager's Unit) for the following: (1) use and occupancy of the Unit and land and related
improvements, including parking; (2) any separately charged fees or service charges assessed
by the Owner which are required of all tenants, other than security deposits; (3) the cost of an
adequate level of service for utilities paid by the tenant, including garbage collection, sewer,
water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone
service, cable service or any other utility or service permitted to be excluded from the
calculation of Rent pursuant to the terms of 25 California Code of Regulations Section 6918;
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and (4) any other interest, taxes, fees or charges for use of the land or associated facilities and
assessed by a public or private entity other than the Owner, and paid by the tenant.
"Restricted Unit" means a dwelling unit which is reserved for occupancy at an
Affordable Rent by a household of not more than a specified household income in accordance
with and as set forth in Section 2.1.
"Very Low Income Household" shall mean a household with an Adjusted Income that
does not exceed th, lifyinn limits for very A innnrrme hni ;hAldSfifty percent (50%) of
Area Median Income, adjusted for Actual Household Size, as established and amended from
time to time pursuant to Section 8 of the United States Housing Act of 1937, and as published
by HCD.
"Very Low Income Rent" shall mean the rent permitted to be charged for a Very Low
Income Unit pursuant to Section 2.1(b) below.
"Very Low Income Units" shall mean the Units, which, pursuant to Section 2.1(b)
below, are required to be occupied by Low Income Households.
"Veteran" shall mean a person who served in the active United States military, naval, or
air service, or such other definition of"Veteran" that may be used by any federal or State
agency or public, private or non-profit lender (other than an entity affiliated with the Owner)
providing affordable housing funding to the Development, as identified in the financing plan or
such other financing (e.g., additional, replacement, or refinancing) approved by the City from
time to time.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and
its successors and assigns, that the Property shall be used solely for the operation of an
affordable residential rental development primarily for Veterans consisting of the Development
and related improvements, in compliance with the Loan Agreement and the requirements set
forth herein. Owner represents and warrants that it has not entered into any agreement that
would restrict or compromise its ability to comply with the occupancy and affordability
restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any
agreement that is inconsistent with such restrictions without the express written consent of
City.
2.1 Affordability Requirements.
For a term of fifty-five (55) years commencing upon the date of issuance of a final
certificate of occupancy or equivalent for the Development, forty-nine percent (49%) of the
residential units in the Development will be restricted for occupancy by Very Low and Low
Income Households as set forth below (the "Restricted Units"). The City and the Owner
acknowledge that other financing sources for the Development may impose additional
affordability restrictions on the Development.
(a) Seventy-five (75%) of the Restricted Units (i.e., twenty-four (24) units)
shall be rented to and occupied by or, if vacant, available for occupancy by Low Income
Households; and
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(b) Twenty-five (25%) of the Restricted Units (i.e., Eight (8) units) shall be
rented to and occupied by, or if vacant, available for occupancy by Very Low Income
Households.
In the event that recertification of tenant incomes indicates that the number of
Restricted Units in the Development actually occupied by Eligible Households falls below the
number reserved for each income group as specified in this Section 2.1, Owner shall rectify the
condition by renting the next available dwelling unit(s) in the Development to Eligible
Household(s) until the required income mix is achieved.
2.2 Affordable Unit Credits.
As set forth in the City's Municipal Code, 12.5% of the total dwelling units within the
Development must be affordable units (eight (8) of the sixty-six (66) units). Because the
Development will include sixty-five (65) affordable units, one affordable unit credit certificate
shall be issued for each affordable unit constructed in excess of the number of affordable units
required to be constructed for the Development.
Therefore, at the time building permits are issued, fifty-seven (57) affordable unit
credits will be created (Fifty-eight (58) minus one (1) manager's unit). Forty (40) credits will
be issued to the City of Dublin and seventeen (17) credits will be issued to Eden Housing, Inc.
or an affiliate approved by the City. Credits issued to Eden Housing Inc. will remain effective
until all permanent financing for the Development has closed in sufficient amounts to cover all
development and construction costs as shown in the Form 8609 issued by TCAC. Eden
Housing Inc. agrees to notify the City, in writing, when all permanent financing has closed and
the amount of such permanent financing was sufficient to cover the Development's
development and construction costs.
If Eden Housing Inc. proposes to sell affordable unit credit certificates, it shall first
obtain the consent of the City of Dublin Community Development Director, who will document
the transfer by certificate number. If the sale of affordable unit credit certificates is not needed
by Eden Housing Inc. to cover any gap between the permanent financing and the development
and construction costs of the Development, any unused affordable housing credits will revert
to the City.
Except as set forth in this Agreement, all City rules and regulations set forth in Section
6.68.030(D) of the Inclusionary Zoning Regulations pertaining to affordable housing credits
shall apply .
2.3 Rents for Restricted Units.
(a) Low Income Rent. Subject to Section 2.3(e) below, the Rent charged to
Residents of the Low Income Units shall not exceed one-twelfth (1/121h) of thirty percent (30%)
of sixty percent (60%) of Area Median Income, adjusted for Assumed Household Size.
(b) Very Low Income Rent. Subject to Section 2.3(e) below, the Rent charged to
Residents of the Low Income Units shall not exceed one-twelfth (1/121h) of thirty percent (30%)
of fifty percent (50%) of Area Median Income, adjusted for Assumed Household Size.
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(c) In calculating the allowable Rent for the Units, Assumed Household Size shall
be the federally-mandated household size assumptions as set forth in federal statutes or
regulations for programs also providing financial assistance to the Development ("Assumed
Household Size").
(d) The Rent may only be increased one time per year (unless otherwise approved
in writing by the City) and the Rent level following an increase, or upon a new occupancy, shall
not exceed the Rent level set forth in subsection a above, as applicable. Households
occupying Units shall be given at least thirty (30) days written notice prior to any increase in
the Rent.
(e) It is anticipated that the Development will receive Project-Based Section 8 or
other rental subsidy payments (collectively referred to as the "Rental Subsidies") throughout
the Term. If, during the Term, any change in federal law occurs or any action (or inaction) by
Congress or any federal or State agency, which results in a reduction, termination or
nonrenewal of the Rental Subsidies through no fault of the Owner ("Federal or State Action"),
such that the rental subsidy projected on the approved Financing Plan is no longer available,
the City shall allow the Developer to increase the rents on one or more of the Very Low
Income Units to Low Income Rents only if and to the extent that the Developer has
demonstrated to the satisfaction of the City Manager that such a rent increase is necessary to
maintain the financial stability of the Development. The Developer shall provide the City
Manager with a projected operating budget for the Development showing the impact of the
loss or reduction of the rental subsidy as well as the last two full years of audited financial
statements for the Development showing actual costs and expenses of operating the
Development at the time Developer requests an increase in the rents. The City Manager shall
have authority to approve an increase in the rents on a sufficient number of Very Low Income
Units to a rent not exceeding the Low Income Rent in order to ensure that the Development
generates sufficient income to cover its operating costs and debt service as shown on the
submitted operating budget, provided, however, any such rent increase shall only be allowed
pursuant to a transition plan mutually agreed upon by the City and Developer consistent with
California Tax Credit Allocation Committee ("TCAC") regulations and only to the extent not
otherwise prohibited under the TCAC Regulatory Agreement or any other regulatory
agreement recorded on the Development. Developer shall make all commercially reasonable
efforts to obtain alternative sources of rental subsidies and shall provide the City with annual
progress reports on efforts to obtain alternative sources of rental subsidies that would allow the
rents on the Very Low Income Units to be reduced to the Very Low Income Rents. Upon
receipt of any alternative rental subsidies, the Developer shall reduce the rents on the units
subject to the rent increase to the Very Low Income Rents to the greatest extent possible.
(f) Notwithstanding anything to the contrary contained in this Agreement, if the
other lenders, tax credit investor, or regulatory agencies require stricter household income
eligibility or affordability requirements than those imposed hereby, the requirements of such
other lenders, tax credit investor, or regulatory agencies shall prevail. In meeting all such
income and affordability requirements, the Owner may count each unit at a specific income
eligibility level as meeting the same specific income eligibility level requirement in each of the
lender, tax credit, or regulatory agency regulatory agreements.
2.4 Increase in Tenant Income.
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2.4.1 Increase Above Initial Qualifying Income. If upon recertification of tenant
incomes, Owner determines that the household income of a tenant has increased and exceeds
the income level for a Very Low Income Household, Low Income Household, or other
applicable the applicable income category in which the tenant initially qualified under a
regulatory agreement required by other Development financing, then upon expiration of the
tenant's lease: (i) such tenant's unit shall continue to be considered as a unit in the initial
applicable income category, (ii) upon ninety (90) days' written notice to the Tenant, such
tenant's rent may be increased to an Affordable Rent for the income category for which the
tenant qualifies, and (iii) Owner shall rent the next available residential unit at an Affordable
Rent to a household that qualifies in the income category in which the tenant initially qualified
in order to achieve the affordability requirements of this Agreement.
2.4.2 Non-Qualifying Household. If, upon recertification of tenant incomes,
Owner determines that a tenant's household income has increased to exceed 80% of the Area
Median Income, such tenant shall be permitted to continue to occupy the unit and upon
expiration of the tenant's lease: (i) upon 90 days' written notice, such tenant's rent may be
increased to the lesser of one-twelfth of thirty percent (30%) of the household's actual income
or the fair market rent, (ii) the unit shall continue to be classified as satisfying the income
category for which the tenant originally qualified, and (iii) when the tenant vacates the unit, the
unit shall be rented at an Affordable Rent to an Eligible Household that qualifies in the income
category for which the former tenant initially qualified in order to achieve the affordability
requirements of this Agreement.
In the event of inconsistency between the provisions of Sections 2.4.1 or 2.4.2 and the
rules applicable to the Project in connection with low-income housing tax credits, tax-exempt
bond financing, or financing or rent subsidies provided to the Project by a federal, State or
other public agency, the rules applicable pursuant to such financing or subsidy source shall
prevail.
2.5 Veterans Units. Owner and the City intend for the Development to provide
affordable rental housing for Very Low and Low Income households primarily for Very Low and
Low income Veterans of the United States Armed Forces and their families. Owner shall use
its best efforts to apply for the resources and assistance to provide eligible Veterans and their
families with affordable housing in and services through the Development. Such resources
and assistance include, but are not limited to, applying for rental subsidies and financing
specifically for or targeting Veterans, affirmative marketing which targets Veterans and their
families, contracting with service providers that provide services specifically for or targeted to
the needs of Veterans and their families, and working with the Veterans Administration and
other veterans advocacy groups and organizations in providing such assistance, marketing,
and services.
Applications will be ranked in lottery and preference order. Preferences determine the
ranking by which applicants are selected but will not affect an applicant's eligibility. Preference
order will be determined based on a point preference system established by the City for this
Development with priority given to Veterans (the "Points Preference System"). The City shall
provide its point system and preference order to the Owner for incorporation by reference and
attachment as an exhibit to the Management and Marketing Plan. The City's point system and
preference order referenced in and attached to the Management and Marketing Plan will
supersede the points system in section 8.68.050 of the Dublin Municipal Code, and has been
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approved as an alternate means of compliance by the City Council pursuant to Dublin
Municipal Code section 8.86.040(E). The point system and preference order shall not apply to
applicants with VASH Vouchers, and shall be subject to the program requirements of Project-
Based Section 8 or other Rental Subsidies.
In addition to the other requirements to be set forth in Management and Marketing
Plan under Section 6.4 below, the Management and Marketing Plan shall include Owner's
marketing, services, and other assistance and programs to fulfill the Owner's and City's intent
to operate the Development primarily for Veterans and their families.
Owner currently anticipates receiving project-based Veteran Affairs Supporting Housing
("VASH") vouchers from the Veterans Administration for a portion of the Units in the
Development, with the understanding that current regulations prohibit VASH vouchers from
being committed to a specific development until the development is ready for marketing.
Owner shall throughout the term of this Agreement apply for project-based VASH vouchers for
the Development as are available and shall rent to homeless or previously homeless Veterans
and their families the number of Units supported by project-based VASH Vouchers. Owner
shall apply for other rental subsidies, funding, and financing that are targeted to or specifically
for Veterans and their families. Nothing in this Section 2.5 shall require Owner to delay the
construction, reconstruction, rehabilitation, financing, refinancing of the Development, the
initial marketing or remarketing of Units in the Development, or occupancy in order to apply for
and/or obtain VASH vouchers or other rental subsidy, funding, or assistance requiring or
allowing for the rental of Units in the Development for Veterans and their families.
This Section 2.5 is subject to Development financing approved by the City and to fair
housing laws.
2.6 Manager's Unit. One (1) dwelling unit in the Development may be used as
resident manager's units, and shall be exempt from the occupancy and rent restrictions set
forth in this Agreement.
2.7 No Condominium Conversion. Owner shall not convert the Development to
condominium or cooperative ownership or sell condominium or cooperative rights to the
Development or any part thereof during the term of this Agreement.
2.8 Non-Discrimination; Compliance with Fair Housing Laws.
2.8.1 Fair Housing. Owner shall comply with state and federal fair housing
laws in the marketing and rental of the units in the Development. Owner shall accept as
tenants, on the same basis as all other prospective tenants, persons who are recipients of
federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or
any successor thereto.
2.8.2 Non-Discrimination. Owner shall not restrict the rental, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion
thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital
status, ancestry, or national origin of any person. Owner covenants for itself and all persons
claiming under or through it, and this Agreement is made and accepted upon and subject to
the condition that there shall be no discrimination against or segregation of any person or
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group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code in, the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the Property or part thereof, nor shall Owner or any person claiming under or through Owner
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, of, or for the Property or part thereof. Owner shall
include such provision in all deeds, leases, contracts and other instruments executed by
Owner, and shall enforce the same diligently and in good faith.
3. Reporting Requirements.
3.1 Tenant Certification. Owner or Owner's authorized agent shall obtain from each
household prior to initial occupancy of each Restricted Unit, and on every anniversary
thereafter, a written certificate containing all of the following in such format and with such
supporting documentation as City may reasonably require:
(a) The identity of each household member; and
(b) The total gross household income; and
(c) The number and type of calculated preference points, if applicable.
Owner shall retain such certificates for not less than five (5) years, and upon City's
request, shall provide copies of such certificates to City and make the originals available for
City inspection.
3.2 Annual Report; Inspections. By not later than April 30 of each year during the
term of this Agreement, Owner shall submit an annual report ("Annual Report") to the City in
form satisfactory to City, together with a certification that the Development is in compliance
with the requirements of this Agreement. The Annual Report shall, at a minimum, include the
following information for each dwelling unit in the Development as of the date of the Annual
Report: (i) unit number; (ii) number of bedrooms; (iii) current rent and other charges,
specifying the amount chargeable to the Tenant; and (iv) dates of any vacancies during the
previous year; (v) number of people residing in the unit ; (vi) total gross household income of
residents; (vii) documentation of source of household income; and (viii) the information
required by Section 3.1. The Annual Report shall include a site improvement and maintenance
plan and shall include a report on the current waitlist, including number of households, unit size
desired, typical wait period, and the number and percentage of Veteran households on the
waitlist. Owner shall include with the Annual Report, an income recertification for each
household, documentation verifying tenant eligibility, and such additional information as City
may reasonably request from time to time in order to demonstrate compliance with this
Agreement. The Annual Report shall conform to the format requested by City; provided
however, during such time that the Development is subject to a regulatory agreement
restricting occupancy and/or rents pursuant to requirements imposed in connection with the
use of state or federal low-income housing tax credits or tax-exempt bond financing, Owner
may satisfy the requirements of this Section by providing City with a copy of compliance
reports required in connection with such financing.
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Owner shall permit representatives of City to enter and inspect the Property, the
Development, and records, during reasonable business hours in order to monitor compliance
with this Agreement upon forty-eight (48) hours advance notice of such visit to Owner or to
Owner's management agent.
The Development shall be subject to an annual monitoring fee, as adjusted from time to
time pursuant to the City's Master Fee Schedule.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect through the 551h
anniversary of the issuance of the final certificate of occupancy or equivalent, or the final
inspection for the Development, unless the term is extended by mutual agreement of the
Parties.
4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan. This
Agreement shall remain effective and fully binding for the full term hereof, as such may be
extended pursuant to Section 4.1, regardless of (i) any sale, assignment, transfer, or
conveyance of the Property or the Development or any part thereof or interest therein, (ii) any
payment, prepayment or extinguishment of the Loan or Note, or (iii) any reconveyance of the
Deed of Trust.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to
execute and record appropriate instruments to release and discharge this Agreement;
provided, however, the execution and recordation of such instruments shall not be necessary
or a prerequisite to the termination of this Agreement upon the expiration of the term as such
may be extended pursuant to Section 4.1.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects its
interest in the Property and the Development to the covenants and restrictions set forth in this
Agreement. The City and Owner hereby declare their express intent that the covenants and
restrictions set forth herein shall be deemed covenants running with the land and shall be
binding upon and inure to the benefit of the heirs, administrators, executors, successors in
interest, transferees, and assigns of Owner and City, regardless of any sale, assignment,
conveyance or transfer of the Property, the Development or any part thereof or interest therein.
Any successor-in-interest to Owner, including without limitation any purchaser, transferee or
lessee of the Property or the Development (other than the tenants of the individual dwelling
units within the Development) shall be subject to all of the duties and obligations imposed
hereby for the full term of this Agreement. Each and every contract, deed, or other instrument
affecting or conveying the Property or the Development or any part thereof, shall conclusively
be held to have been executed, delivered and accepted subject to the covenants, restrictions,
duties and obligations set forth herein, regardless of whether such covenants, restrictions,
duties and obligations are set forth in such contract, deed, or other instrument. If any such
contract, deed, or other instrument has been executed prior to the date hereof, Owner hereby
covenants to obtain and deliver to City an instrument in recordable form signed by the parties
to such contract, deed, or other instrument pursuant to which such parties acknowledge and
accept this Agreement and agree to be bound hereby.
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Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land, such
covenants shall be enforced as equitable servitudes against the Property and the
Development in favor of City.
6. Property Management; Repair and Maintenance; Marketing.
6.1 Management Responsibilities. Owner shall be responsible for all management
functions with respect to the Property and the Development, including without limitation the
selection of tenants, certification and recertification of household income and eligibility,
evictions, collection of rents and deposits, maintenance, landscaping, routine and
extraordinary repairs, replacement of capital items, and security. City shall have no
responsibility for management or maintenance of the Property or the Development.
6.2 Management Entity. City shall have the right to review and approve the
qualifications of the management entity proposed by Owner for the Development. The
contracting of management services to a management entity shall not relieve Owner of its
primary responsibility for proper performance of management duties. City hereby approves
Eden Housing Management, Inc. as the initial management entity for the Development.
6.3 Repair, Maintenance and Security. Throughout the term of this Agreement,
Owner shall at its own expense, maintain the Property and the Development in good physical
condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living
conditions in conformity with all applicable state, federal, and local laws, ordinances, codes,
and regulations. Without limiting the foregoing, Owner agrees to maintain the Development
and the Property (including without limitation, the residential units, common areas, meeting
rooms, landscaping, driveways, parking areas and walkways) in a condition free of all waste,
nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances,
and illegal activity, and shall take all reasonable steps to prevent the same from occurring on
the Property or at the Development. Owner shall prevent and/or rectify any physical
deterioration of the Property and the Development and shall make all repairs, renewals and
replacements necessary to keep the Property and the improvements located thereon in good
condition and repair. Owner shall provide adequate security services for occupants of the
Development. The Management and Marketing Plan shall provide for the installation of a
security camera system at initial occupancy. Nothing in the proceeding sentence shall require
the continued use of a camera system if the parties agree upon a different or updated security
system.
6.3.1 City's Right to Perform Maintenance. In the event that Owner breaches
any of the covenants contained in Section 6.3, and such default continues for a period of ten
(10) days after written notice from City (with respect to graffiti, debris, and waste material) or
thirty (30) days after written notice from City (with respect to landscaping, building
improvements and general maintenance), then City, in addition to any other remedy it may
have under this Agreement or at law or in equity, shall have the right, but not the obligation, to
enter upon the Property and perform all acts and work necessary to protect, maintain, and
preserve the improvements and the landscaped areas on the Property. All costs expended by
City in connection with the foregoing, shall constitute an indebtedness secured by a deed of
trust in favor of the City, which shall be recorded upon the closing of the City Loan (the "Deed
of Trust"), and shall be paid by Owner to City upon demand. All such sums remaining unpaid
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thirty (30) days following delivery of City's invoice therefor shall bear interest at the lesser of
ten percent (10%) per annum or the highest rate permitted by applicable law.
6.4 Management and Marketing Plan. Prior to the start of construction of the
Development, Owner shall submit for City review and approval, a plan for managing the
Property and marketing the Project. (the "Management and Marketing Plan"). The
Management and Marketing Plan shall be updated after two (2) years and then again every
five (5) years. The City will provide no less than 90 days' notice to Owner before each
Management and Marketing Plan is due. Updates and revisions to the Management and
Marketing Plan may be subject to prior approval of Owner's investor limited partner or other
project lenders before being implemented.
The Management and Marketing Plan shall describe the management team and shall
address how the Owner and the management entity plan to manage and maintain the Property
and the Development. The Management and Marketing Plan shall include the proposed
management agreement and the form of rental agreement that Owner proposes to enter into
with Development tenants. The Management and Marketing Plan shall address in detail how
Owner plans to market the Restricted Units to prospective Eligible Households and targeted
outreach to Veterans in accordance with the City's Inclusionary Zoning Ordinance Regulations,
subject to any City waivers for this Development, fair housing laws and this Agreement,
Owner's tenant selection criteria, and how Owner plans to certify the eligibility of Eligible
Households. The Management and Marketing Plan shall also address Owner's plans
concerning Veterans set forth in Section 2.5 of this Agreement. Owner shall abide by the
terms of the Management and Marketing Plan in marketing, managing, and maintaining the
Property and the Development, and throughout the term of this Agreement, shall submit
proposed modifications to City for review and approval.
The Management and Marketing Plan shall also include the following:
(a) Establishment of a "crime free" environment by participation in the City of
Dublin's Crime Free Multi Housing Program, to the extent such participation is
consistent or not in conflict with applicable policy and procedures established by
the United States Department of Veterans Affairs.
(b) Description of targeted outreach to Veterans.
(c) Plan to provide on-site programs and services for Veterans and low income
residents.
6.5 Approval of Amendments. If City has not responded to any submission of the
Management and Marketing Plan, the proposed management entity, or a proposed
amendment or change to any of the foregoing within forty-five (45) days following City's receipt
of such plan, proposal or amendment, the plan, proposal or amendment shall be deemed
approved by City.
6.6 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all
fees, assessments, taxes, charges, liens and levies applicable to the Property or the
Development, including without limitation possessory interest taxes, if applicable, imposed by
any public entity, and shall pay such charges prior to delinquency. However, Owner shall not
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be required to pay any such charge so long as (a) Owner is contesting such charge in good
faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any
contested liabilities, and (c) on final determination of the proceeding or contest, Owner
immediately pays or discharges any decision or judgment rendered against it, together with all
costs, charges and interest. The Parties acknowledge that the Owner will apply for exemption
from property tax under Revenue and Taxation Code Section 214.
6.7 Insurance Coverage. Throughout the term of this Agreement Owner shall at
Owner's expense, maintain in full force and effect insurance coverage as specified in the Deed
of Trust and shall comply with all insurance requirements set forth in the Deed of Trust.
6.8 Property Damage or Destruction. If any part of the Development is damaged or
destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent
restriction requirements set forth in this Agreement. Such work shall be commenced as soon
as reasonably practicable after the damage or loss occurs and shall be completed within one
year thereafter or as soon as reasonably practicable, provided that insurance proceeds are
available to be applied to such repairs or restoration within such period and the repair or
restoration is financially feasible. During such time that lenders or low-income housing tax
credit investors providing financing for the Development impose requirements that differ from
the requirements of this Section the requirements of such lenders and investors shall prevail.
7. Recordation; Subordination. This Agreement shall be recorded in the Official Records
of Alameda County. Owner hereby represents, warrants and covenants that with the
exception of easements of record, absent the written consent of City, this Agreement shall not
be subordinated in priority to any lien (other than those pertaining to taxes or assessments),
encumbrance, or other interest in the Property or the Development. If at the time this
Agreement is recorded, any interest, lien, or encumbrance has been recorded against the
Development in position superior to this Agreement, upon the request of City, Owner hereby
covenants and agrees to promptly undertake all action necessary to clear such matter from
title or to subordinate such interest to this Agreement consistent with the intent of and in
accordance with this Section 7, and to provide such evidence thereof as City may reasonably
request. Notwithstanding the foregoing, the City agrees that City will not withhold consent to
reasonable requests for subordination of this Agreement to deeds of trust provided for the
benefit of lenders identified in the Financing Plan (as defined in the Loan Agreement) as it may
be updated with City approval, provided that the instruments effecting such subordination
include reasonable protections to the City in the event of default, including without limitation,
extended notice and cure rights.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement,
except as permitted pursuant to the Loan Agreement or this Agreement, Owner shall not
directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or
partial sale, transfer, conveyance, assignment or lease (collectively, "Transfer") of the whole or
any part of the Property, the Development, or the improvements located on the Property,
without the prior written consent of the City, which approval shall not be unreasonably
withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly
permitted by this Agreement or the Loan Agreement, Owner shall not undergo any significant
change of ownership without the prior written approval of City. For purposes of this
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Agreement, a "significant change of ownership" shall mean a transfer of the beneficial interest
of more than twenty-five percent (25%) in aggregate of the present ownership and /or control
of Owner, taking all transfers into account on a cumulative basis; provided however, neither
the admission of an investor limited partner, nor the transfer by the investor limited partner to
subsequent limited partners shall be restricted by this provision.
8.2 Permitted Transfers. Notwithstanding any contrary provision hereof, the
prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of
easements or permits to facilitate development of the Property; (ii) the dedication of any
property required pursuant to the Loan Agreement; (iii) the lease of individual dwelling units to
tenants for occupancy as their principal residence in accordance with this Agreement or the
lease of commercial space to commercial tenants, if applicable; (iv) assignments creating
security interests for the purpose of financing the acquisition, construction, or permanent
financing of the Development or the Property in accordance with the Loan Agreement, or
Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure
of, such a security interest; (v) a Transfer to a limited partnership in which the managing
general partner is a tax-exempt entity under the direct control of or under common control with
Eden; (vi) the admission of limited partners and any transfer of limited partnership interests in
accordance with Owner's agreement of limited partnership (the "Partnership Agreement"),
provided that the Partnership Agreement and/or the instrument of Transfer provides for
development and operation of the Property and Development in a manner consistent with the
Loan Agreement and this Agreement; (vii) the removal of the general partner by the investor
limited partner for a default under the Partnership Agreement, provided the replacement
general partner is reasonably satisfactory to City; or (viii) the transfer of the General Partner's
interest to a nonprofit entity that is or its member/manager is tax-exempt under Section
501(c)(3) of the Internal Revenue Code of 1986 as amended, provided such replacement
general partner is reasonably satisfactory to City.
In addition, City shall not withhold its consent to the sale, transfer or other disposition of
the Development, in whole or in part, provided that (a) the Development is and shall continue
to be operated in compliance with this Agreement; (b) the transferee expressly assumes all
obligations of Owner imposed by this Agreement; (c) the transferee executes all documents
reasonably requested by the City with respect to the assumption of the Owner's obligations
under this Agreement, and upon City's request, delivers to the City an opinion of its counsel to
the effect that such document and this Agreement are valid, binding and enforceable
obligations of such transferee; and (d) either (A) the transferee has at least three (3) years'
experience in the ownership, operation and management of low-income multifamily rental
housing projects of similar size to that of the Development, without any record of material
violations of nondiscrimination provisions or other state or federal laws or regulations
applicable to such projects, or (B) the transferee agrees to retain a property management firm
with the experience and record described in subclause (A).
Article VI of the Loan Agreement shall govern procedures applicable to requests for,
and City's approval of, proposed Transfers. Unless waived by City, Owner shall reimburse City
for all City costs, including but not limited to reasonable attorneys' fees, incurred in reviewing
instruments and other legal documents proposed to effect a Transfer under this Agreement
and in reviewing the qualifications and financial resources of a proposed successor, assignee,
or transferee within ten (10) days following City's delivery of an invoice detailing such costs.
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8.3 Encumbrances. Owner agrees to use best efforts to ensure that any
subordination agreement recorded against the Property, the Development or part thereof for
the benefit of a lender other than City ("Third-Party Lender") shall contain each of the
following provisions: (i) Third-Party Lender shall use its best efforts to provide to City a copy of
any notice of default issued to Owner concurrently with provision of such notice to Owner;
(ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner
within the same period of time provided to Owner for such cure extended by an additional sixty
(60) days; (iii) provided that City has cured any default under Third-Party Lender's deed of trust
and other loan documents, City shall have the right to foreclose City's Deed of Trust and take
title to the Development without acceleration of Third-Party Lender's debt; and (iv) City shall
have the right to transfer the Development without acceleration of Third-Party Lender's debt to
a nonprofit corporation or other entity which shall own and operate the Development as an
affordable rental housing project, subject to the prior written consent of the Third-Party Lender.
Owner agrees to provide to City a copy of any notice of default Owner receives from any
Third-Party Lender within three (3) business days following Owner's receipt thereof.
8.4 Mortgagee Protection. No violation of any provision contained herein shall
defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for
value upon all or any portion of the Development or the Property, and the purchaser at any
trustee's sale or foreclosure sale shall not be liable for any violation of any provision hereof
occurring prior to the acquisition of title by such purchaser. Promptly upon determining that a
violation of this Agreement has occurred, City shall give written notice to the holders of record
of any mortgages or deeds of trust encumbering the Development or the Property that such
violation has occurred.
9. Default and Remedies.
9.1 Events of Default. The occurrence of any one or more of the following events
shall constitute an event of default hereunder ("Event of Default"):
(a) The occurrence of a Transfer in violation of Section 8 hereof;
(b) Owner's failure to maintain insurance on the Property and the
Development as required hereunder, and the failure of Owner to cure such default within ten
(10) days;
(c) Subject to Owner's right to contest the following charges, Owner's failure
to pay taxes or assessments due on the Property or the Development or failure to pay any
other charge that may result in a lien on the Property or the Development, and Owner's failure
to cure such default within thirty (30) days of delinquency;
(d) A default has been declared under any loan secured by a mortgage,
deed of trust or other security instrument recorded against the Property and remains uncured
beyond any applicable cure period such that the holder of such security instrument has the
right to accelerate repayment of such loan;
(e) A default arises under the Loan Agreement, the Note, the Deed of Trust
or any other City Document (as defined in the Loan Agreement) and remains uncured beyond
the expiration of any applicable cure period;
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M Owner's default in the performance of any term, provision or covenant
under this Agreement (other than an obligation enumerated in this Subsection 9.1), and unless
such provision specifies a shorter cure period for such default, the continuation of such default
for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non-
monetary default following the date upon which City shall have given written notice of the
default to Owner, or if the nature of any such non-monetary default is such that it cannot be
cured within thirty (30) days, Owner's failure to commence to cure the default within thirty (30)
days and thereafter prosecute the curing of such default with due diligence and in good faith,
but in no event longer than ninety (90) days from receipt of the notice of default or such longer
period of time as City may allow.
The limited partners of Owner shall have the right to cure any default of Owner
hereunder upon the same terms and conditions afforded to Owner. Provided that City has
been given written notice of the address for delivery of notices to the limited partners, City shall
provide any notice of default hereunder to the limited partners concurrently with the provision
of such notice to Owner, and as to the limited partners, the cure periods specified herein shall
commence upon the date of delivery of such notice in accordance with Subsection 11.3.
9.2 Remedies. Upon the occurrence of an Event of Default and its continuation
beyond any applicable cure period, City may proceed with any of the following remedies:
A. Bring an action for equitable relief seeking the specific performance of the terms
and conditions of this Agreement, and/or enjoining, abating, or preventing any
violation of such terms and conditions, and/or seeking declaratory relief;
B. Accelerate and declare the balance of the Note and interest accrued thereon
immediately due and payable and proceed with foreclosure under the Deed of
Trust;
C. For violations of obligations with respect to rents for Restricted Units, impose as
liquidated damages a charge in an amount equal to the actual amount collected
in excess of the Affordable Rent;
D. Pursue any other remedy allowed at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The City may
exercise from time to time any rights and remedies available to it under applicable law or in
equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this
Agreement.
10. Indemnity. Notwithstanding any other provision in the Loan Agreement or other
documents executed in connection with the City Loan, Owner shall indemnify, defend (with
counsel approved by City) and hold City and their respective elected and appointed officers,
officials, employees, agents, and representatives (collectively, the "Indemnitees") harmless
from and against all liability, loss, cost, expense (including without limitation attorneys' fees
and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding,
penalty, deficiency, fine, order, and damage (all of the foregoing collectively "Claims") arising
directly or indirectly, in whole or in part, as a result of or in connection with Owner's
construction, management, or operation of the Property and the Development or any failure to
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perform any obligation as and when required by this Agreement. Owner's indemnification
obligations under this Section 10 shall not extend to Claims resulting solely from the gross
negligence or willful misconduct of Indemnitees. It is further agreed that City does not and shall
not waive any rights against Owner that it may have by reason of this indemnity and hold
harmless agreement because of the acceptance by City, or the deposit with City by Owner, of
any of the insurance policies described in this Agreement or the Loan Agreement.
The provisions of this Section 10 shall survive the expiration or earlier termination of
this Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a written
instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must
be in writing. No waiver shall be implied from any delay or failure by City to take action on any
breach or default hereunder or to pursue any remedy allowed under this Agreement or
applicable law. No failure or delay by City at any time to require strict performance by Owner
of any provision of this Agreement or to exercise any election contained herein or any right,
power or remedy hereunder shall be construed as a waiver of any other provision or any
succeeding breach of the same or any other provision hereof or a relinquishment for the future
of such election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to
this Agreement shall be made in writing, and sent to the Parties at their respective addresses
specified below or to such other address as a Party may designate by written notice delivered
to the other parties in accordance with this Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered upon receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to
the sender's account, in which case notice is effective on delivery if delivery is confirmed by
the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered upon
transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class
or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the
accurate transmission thereof. Any notice given by facsimile shall be considered to have been
received on the next business day if it is received after 5:00 p.m. recipient's time or on a
nonbusiness day.
City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
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Facsimile: (925) 833-6651
Owner: Corona Crescent, Inc.
22645 Grand Street
Hayward, CA 94541-5031
Attention: President
Facsimile: (510) 582-6523
With a copy to Owner's investor limited partner:
[to be provided]
11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the
other such other documents and instruments, and take such other actions, as either shall
reasonably request as may be necessary to carry out the intent of this Agreement.
11.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
11.6 Action by the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or
permitted under this Agreement, such action shall be in writing, and such action may be given,
made or taken by the City's City Manager or by any person who shall have been designated by
the City Manager, without further approval by the City Council.
11.7 Non-Liability of City Officials, Officers, Directors, Employees and Agents. No
member, official, employee or agent of the City shall be personally liable to Owner or any
successor in interest, in the event of any default or breach by the City, or for any amount of
money which may become due to Owner or its successor or for any obligation of City under
this Agreement. No director, officer, employee or agent of the Owner shall be personally liable
to the City or any successor in interest, in the event of any default or breach by the Owner, or
for any amount of money which may become due to the City or its successor or for any
obligation of the Owner under this Agreement.
11.8 Headings; Construction. The headings of the sections and paragraphs of this
Agreement are for convenience only and shall not be used to interpret this Agreement. The
language of this Agreement shall be construed as a whole according to its fair meaning and
not strictly for or against any Party.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with the laws
of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to
interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover
all reasonable attorneys' fees and costs incurred in such action.
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11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of
the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement. This Agreement, together with the Loan Agreement, the
Note and the Deed of Trust contains the entire agreement of Parties with respect to the subject
matter hereof, and supersedes all prior oral or written agreements between the Parties with
respect thereto.
11.14 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGES.
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IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory
Agreement and Declaration of Restrictive Covenants as of the date first written above.
CITY
City of Dublin, a municipal corporation
By:
Christopher Foss, City Manager
Attest:
City Clerk
Approved as to form:
City Attorney
DEVELOPER
Corona Crescent, Inc.
By:
Linda Mandolini,
SIGNATURES MUST BE NOTARIZED.
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STATE OF CALIFORNIA )
COUNTY OF ALAMEDA )
On , 20_, before me, (here insert name and
title of the officer), personally appeared , who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
COUNTY OF ALAMEDA )
On 120 , before me, (here insert name and
title of the officer), personally appeared , who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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Exhibit A
PROPERTY
Real property in the City of Dublin, County of Alameda, State of California, described
as follows:
PARCEL D, AS SHOWN ON PARCEL MAP 2621, FILED DECEMBER 20, 1978 IN BOOK
107, PAGE 50 OF MAPS, ALAMEDA COUNTY RECORDS.
EXCEPTING THEREFROM, THAT PORTION CONVEYED IN THE DEED TO THE
COUNTY OF ALAMEDA, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA,
RECORDEDD FEBRUARY 14, 2004 AS INSTRUMENT NO. 2002-073439 OF OFFICIAL
RECORDS.
APN: 941-1500-032-02
2516862.1
Dublin AmendRestateVet RegAgmt
€iaal-Amended and Restated Regulatory Agreement I dace 16September 16 2015 Page 23 of 23