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HomeMy WebLinkAboutAgr 1995-10-23 (Tiburon Ecumenical Housing Association)RECORDING REQUESTED BY AND WHEN RFrORDFD MAIT, TO Tiburc~~ Redevelopment Agency 1155 Tiburon Boulevard Tiburon, CA 94920 95-051661 Recorded Official Records County of MARIN JOAN C THAYER Recorder 8:00am 27-Oct-95 I I Rec Fee .00 I Check .00 I I I I I I CLTC AM 15 No fee for recording pursuant to Govez,n-ment Code Section 27383 0'~0'~ V~ -6' /D 6C LT) EGLM A•; ORY AGREF14ENT AND DECLARATION OF RESTRICTIVE COVENANTS This Recd°.Ilatory Agreement and neclarat:1-on of " str'-C.tive Covenants (the "Agreement") is made and entered into as of this S day of , 1995 by and between the Tiburon Redevelopment Agency, a public body corporate and politic (the "Age,nv.y"), and Ecumenical Association for Housing, a Calif ~-Tnia 11onprof. public benefit corporation (the a'Det;loner") a RE~~:I'~AlaS 1. The Agency and the D~elnper iave entered into a Sacond Amended and Restated Dis-,~)os (yR.Velopment and 1atian Agreement for Tiburon Highlands Housing Dt-velopment, li-l.tiaily c.-vxecuta as of duly 1, 1994, as amended and restated in its entirety as or Marclo 1, 1995, as f uY- Sher- aman(~ed and st erg in its ent _a.,rety a of O& ober 1995 (the 'IDDLA" under the ~~genc;y wi? 1 convsy, ccertain F: eal ;Liroper~t`~ 'the "Property") ~to the J,- v-e loper and will protj id a a loan thp, " 1t~.gf Lzncy , Joan") to the Developer f,Dr use,, together with funds oti--a.ir 9d from other sources, for development oil the Property oZ sixteen (16) t.° dent.ial Un.i is affordab.P to households conta`1_-~ i ng elderly indPidduals ;the 1 :0evelopmentl Z Capitalized terms used _Jut not iafined in this ? -,,-L°eem, nt call have the meanings set fortrl in the DOLA. 2, Tlh-kc: :F ands sed by g._.. _ 1C,y to acquire the Property and to t'_~e Agency Loan pursnan-.i to the DDLA are frog. the -kgoyncy' s ljoykl~ and M~3d rya Irxc; ome Housi.ng ~"und. Uada r Cal :'.f ox n i a E-ealth and afety ;ode Secti,.:~n 33330,.2 gt , the Agency must r«,c-±r~.C,,t developments as6isttd with fu.P.08 from the -Agency l s Low t end Moderate -P[ncvf! )Ate Housing Fund, so the aevelopmr enta remain a•`f ordabl to Is a.-.d moderate Lnrom~ huseh~-Ads for t_ a longest fev s able t,ZAis , Ag rreement is irten,3.ed to imp -Ttent th?! `-c~-~Tairement lay,-. 0120-20.PS0 10112f95 --1 - 3. The Agency has agreed to convey the Property and to make the Agency Loan to the Developer on the condition that the Development be maintained and operated in accordance with Sections 33334.2 et sect. and in accordance with additional restrictions concerning affordability, operation, and maintenance of the Development, as specified in this Agreement. 4. In addition, the Agency intends to apply the units in the Development, to the extent permitted by law, toward satisfaction of its project area housing production obligation under Health and Safety Code Section 33413(b)(2) for the Tiburon Redevelopment Project Area. To serve this purpose, the Agency is restricting the units in the Development pursuant to this Agreement so that they remain affordable to households with incomes as specified herein for the longest feasible time. 5. In consideration of conveyance of the Property and receipt of the Agency Loan at an interest rate substantially below the market rate, the Developer has further agreed to observe all the terms and conditions set forth below. 6. In order to ensure that the entire Development will be used and operated in accordance with these conditions and restrictions, the Agency and the Developer wish to enter into this Agreement. THEREFORE, the Agency and the Developer hereby agree as follows. ARTICLE 1 DEFINITIONS 1.1 Definitions When used in this Agreement, the following terms shall have the respective meanings assigned to them in this Article 1. (a) "Actual Household Size" shall mean the actual number of persons in the applicable household. (b) "Adjusted Income" shall mean 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 Agency shall provide 102020.P50 10/1?✓95 -2- the Developer with a reasonably similar method of calculation of adjusted income as provided in said Section 6914. (c) "Agency" shall mean the Tiburon Redevelopment Agency and, in the event the Agency ceases to exist, the Town of Tiburon or such successor entity as the Town may designate. (d) "Agency Deed of Trust" shall mean the deed of trust to the Agency on the Property which secures repayment of the Agency Loan and performance of the DDLA and this Agreement. (e) "Agency Loan" shall mean all funds loaned to the Developer pursuant to the DDLA. (f) "Agency Note" shall mean the promissory note from the Developer to the Agency evidencing all or any part of the Agency Loan. (g) "Agreement" shall mean this Regulatory Agreement and Declaration of Restrictive Covenants. (h) "Assumed Household Size" shall mean, subject to the modification set forth in Section 2.5, a household containing one (1) person, it being understood that every Unit in the Development shall be an efficiency unit. (i) "Certificate of Completion Date" shall mean the date of issuance by the Agency of a Certificate of Completion for the Development pursuant to Section 6.10 of the DDLA. (j) "DDLA" shall mean the Second Amended and Restated Disposition, Development, by and between the Agency and the Developer, initially executed as of July 1, 1994, as amended and restated in its entirety as of March 1, 1995, as further amended and restated in its entirety as of October 1, 1995. (k) "Developer" shall mean Ecumenical Association for Housing, a California nonprofit public benefit corporation, and its successors and assigns to the Development. (1) "Development" shall mean the Property and the sixteen (16) residential units to be developed on the Property, as well as all landscaping, roads and parking spaces existing thereon, as the same may from time to time exist. (m) "Median Income" shall mean the median gross yearly income, adjusted for Actual Household Size or Assumed Household Size as specified herein, in the County of Marin, California, as published from time to time by the State of California. In the 102020.P50 1012/95 -3- event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the Agency shall provide the Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the State. (n) "Other Household" shall mean a household with an Adjusted Income which does not exceed ninety percent (90%) of Median Income, adjusted for Actual Household Size. (o) "Other Units" shall mean the Units which, pursuant to Section 2.1(b) below, are required to be occupied by other Households. (p) "Property" shall mean the real property described in Exhibit A attached hereto and incorporated herein. (q) "Rent" shall mean the total.r)f monthly payments by the Tenant of a Unit for the following: (1) use and occupancy of the Unit and land and associated facilities, including parking; (2) any separately charged fees or service charges assessed by the Developer 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 television 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 Developer, and paid by the Tenant. (r) "Security Financing Interest" shall have the meaning set forth in Section 10.1 of the DDLA. (s) "Tenant" shall mean a household occupying a Unit. (t) "Term" shall mean the term of this Agreement, which shall commence on the Certificate of Completion Date and shall continue in effect in perpetuity, subject to earlier termination as provided in section 4.2 and to the following limitation. The parties shall take such actions as may be required by law to enable the term of this Agreement to continue in effect in perpetuity. In the event any such action is not properly and timely taken or the perpetual term of this Agreement is otherwise determined to violate any provision of law, the Term 102020.P50 1012/95 -4- of this Agreement shall continue in effect until the ninety- ninth (99th) anniversary of the Certificate of Completion Date. (u) "Unit" shall mean one of the fifteen (15) one- bedroom units to be constructed on the Property, and to which the provisions of Articles 2 and 3 apply. The term "Unit" shall not refer to the two-bedroom resident manager's unit. (v) "Very Low Income Household" shall mean a household with an Adjusted Income that does not exceed the lesser of (1) forty percent (40%) of Median Income, adjusted for actual household size, or (2) the qualifying limits for very low income households, 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 the State of California Department of Housing and Community Development. (w) "Very Low Income Units" shall mean the Units which, pursuant to Section 2.1(a) below, are required to be occupied by Very Low Income Households. ARTICLE 2 AFFORDABILITY AND OCCUPANCY COVENANTS 2.1 Occupancy Requirement. (a) Very Low Income Units. Seven (7) of the Units shall be rented to and occupied by or, if vacant, available for occupancy by Very Low Income Households. (b) Other Units. The remaining eight (8) Units shall be rented to and occupied by or, if vacant, available for occupancy by Other Households. (c) Intermingling of Units. The Very Low Income Units shall be intermingled with, and shall be of comparable quality to, the Other Units. Tenants in all Units shall have equal access to and enjoyment of all common facilities of the Development. 2.2 Allowable Rent (a) Very Low Income Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of the Very Low Income Units shall not exceed one-twelfth (1/12) of thirty percent (30%) of forty percent (40%) of Median Income, adjusted for Assumed Household Size. 102020.P50 10/12/9s -5- (b) Other Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of the Other Units shall not exceed one-twelfth of thirty percent (30%) of ninety percent (90%) of Median Income, adjusted for Assumed Household Size. 2.3 Increased Income of Tenants (a) Very Low Income Household. If, upon recertification of a Tenant's income, the Developer determines that a former Very Low Income Household no longer qualifies as a Very Low Income Household, but has an Adjusted Income not exceeding ninety percent (90%) of Median Income, adjusted for Actual Household Size: (1) Such Tenant's Unit shall be considered an Other Unit; (2) Such Tenant's Rent may be increased to an Other Rent, upon sixty (60) days written notice to the Tenant; and (3) The Developer shall rent the next available Other Unit to a Very Low Income Household at Rent not exceeding the maximum Rent specified in Section 2.2(a) to comply with the requirements of Section 2.1(a) above. (b) Non-Qualifying Household. If, upon recertification of a Tenant's income, the Developer determines that a former Very Low Income Household or Other Household has an Adjusted Income exceeding ninety percent (90%) of Median Income, adjusted for Actual Household Size: (1) Such Tenant shall be required to vacate the Development within six (6) months and shall be notified in writing of such obligation to vacate promptly following the income recertification; and (2) Upon vacation, the vacated Unit shall be rented to a Very Low Income Household or an Other Household, as applicable, at a Rent level as necessary to comply with the requirements of Section 2.1 and 2.2 above. (c) Termination of Occupancy. Upon termination of occupancy of a Unit by a Tenant, such Unit shall be deemed to be continuously occupied by a household of the same income level (e.g., Very Low Income Household or Other Household) as the income level of the vacating Tenant, until such Unit is reoccupied, at which time the income character of the Unit (e.g., Very Low Income Unit or Other Unit) shall be redetermined. 102020.P50 10/12/95 -6- 2.4 Lease Provisions. The Developer shall use a form of Tenant lease approved by the Agency. The form of Tenant lease shall comply with all requirements of this Agreement, the DDLA, and Section 8 requirements (for Units to be occupied by Section 8 certificate holders), and shall, among other matters: (a) provide for termination of the lease and consent by the Tenant to immediate eviction for failure: (1) to provide any information required under this Agreement or reasonably requested by the Developer to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy in the Development in accordance with the standards set forth in this Agreement, or (2) to qualify as a Very Low Income Household or Other Household, as the case may be, as a result of any material misrepresentation made by such Tenant with respect to the income computation or certification; and (b) be for an initial term of at least one year and provide for no Rent increase during such year. After the initial year, a Tenant lease may be month-to-month; however, the Rent may not be raised more than once per year. The Developer will provide each Tenant with at least sixty (60) days' written notice of any increase in Rent applicable to such Tenant, and with such further notice as may be required by Section 2.3 above. 2.5 Other Rules. If the Development is subject to state or federal rules governing funding sources such as low-income housing tax credits or HOME funds (the "Other Rules"), the provisions of the Other Rules regarding assumed household size (as defined in Section 1.1(h) above), continued occupancy by households whose incomes exceed the eligible income limitations (as described in Section 2.3 above), or other matters set forth in this Article 2 shall apply in place of the provisions set forth in the applicable sections of this Agreement. 2.6 Nondiscrimination. All of the Units shall be available for occupancy on a continuous basis to members of the general public who are income eligible. The Developer shall not give preference to any particular class or group of persons in renting or selling the Units, except to the extent that the Units are required to be leased to Extremely Low Income Households, Very Low Income Households, and Other Households. There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, source of income (e.g. AFDC or SSI), ancestry, or disability, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall the Developer or any person claiming under or 102020.P50 10/12/95 -7- through the Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of any Unit or in connection with the employment of persons for the construction, operation and management of any Unit. All deeds, leases or contracts made or entered into by the Developer as to the Units or the Development or portion thereof, shall contain covenants concerning discrimination as prescribed by the DDLA. 2.7 Section 8 Certificate Holders. The Developer will accept as Tenants, on the same basis as all other prospective Tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act, or its successor. The Developer shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective Tenants, nor shall the Developer apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of units by such prospective Tenants. ARTICLE 3 INCOME CERTIFICATION AND REPORTING 3.1 Income Certification. The Developer will obtain, complete and maintain on file, immediately prior to initial occupancy and annually thereafter, income certifications from each Tenant renting any of the Units in substantially the form approved by the Agency. The Developer shall make a good faith effort to verify that the income provided by an applicant or occupying household in an income certification is accurate by taking two or more of the following steps as a part of the verification process: (a) obtain a pay stub for the most recent pay period; (b) obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain an income verification form from the applicant's current employer; (e) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (f) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of Tenant income certifications shall be available to the Agency upon request. 3.2 Semi-annual Report to Agency. The Developer shall submit to the Agency (a) not later than the fifteenth (15th) day 102020.P50 10/12,195 -8- after the close of each semi-annual period, a statistical report to the Agency in a form approved by the Agency, setting forth the information called for therein, and (b) within fifteen (15) days after receipt of a written request, any other information or completed forms requested by the Agency in order to comply with reporting requirements of the United States Department of Housing and Urban Development or the State of California. 3.3 Additional Information. The Developer shall provide any additional information reasonably requested by the Agency. The Agency shall have the right to examine and make copies of all books, records or other documents of the Developer which pertain to the Development. 3.4 Records. The Developer shall maintain complete, accurate and current records pertaining to the Development, and shall permit any duly authorized representative of the Agency to inspect records, including records pertaining to income and household size of Tenants. All Tenant lists, applications and waiting lists relating to the Development shall at all times be kept separate and identifiable from any other business of the Developer and shall be maintained as required by the Agency, in a reasonable condition for proper audit and subject to examination during business hours by representatives of the Agency. The Developer shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least three (3) years. ARTICLE 4 MISCELLANEOUS 4.1 Term. The provisions of this Agreement shall apply to the Property for the entire Term even if the entire Agency Loan is paid in full prior to the end of the Term. This Agreement shall bind any successor, heir or assign of the Developer, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the Agency. The Agency makes the Agency Loan on the condition," and in consideration of, this provision, and would not do so otherwise. 4.2 Developer's Election to Terminate. After this Agreement has remained in effect for not less than ninety-five (95) years, if the Developer in good faith determines that due to the physical suitability of the Development or other changed circumstances which adversely affect the Development, it is not economically feasible for the Development to continue to be operated in accordance with this Agreement, the Developer shall 102020.P50 10/12/95 -9- have the right to terminate this Agreement upon satisfaction of the following conditions: (a) The Developer shall be in full compliance with the provisions of the Agency Documents, including, without limitation, compliance with the terms of Section 7.7 of the DDLA; (b) The Agency Loan shall have been repaid in full; and (c) The Development shall be conveyed in fee to the Agency in consideration for the Agency's payment of one dollar ($1.00). Fee title to the Development shall be subject only to the exceptions to title in effect upon conveyance of the Property to the Developer pursuant to the DDLA, any Security Financing Interests, and any other matters approved by the Agency in its sole discretion. The Development shall be conveyed to the Agency in "as is" condition. Upon satisfaction of the above conditions, the Agency shall assume the than existing debt evidenced by the Security Financing Interests, and this Agreement shall terminate. The provisions of Sections 7.2, 7.7(b), 11.7, and 11.5 of the DDLA shall survive such termination, and shall remain in full force and effect. 4.3 Covenants to Run With the Land. The Agency and the Developer hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the Term of this Agreement said covenants and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the Agency expressly releases such conveyed portion of the Property from the requirements of this Agreement. 4.4 Enforcement by the Agency. If the Developer fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the Agency has notified the Developer in writing of the default or, if the default cannot be cured within thirty (30) days, failed to commence to cure within thirty (30) days and thereafter diligently pursue such cure, the Agency shall have the right to enforce this Agreement by any or all of the following actions, or any other remedy provided by law: 102020.P50 10/12/95 -10- (a) Calling the Agency Loan. The Agency may declare a default under the Agency Note, accelerate the indebtedness evidenced by the Agency Note, and proceed with foreclosure under the Agency Deed of Trust. (b) Action to Compel Performance or for Damages. The Agency may bring an action at law or in equity to compel the Developer's performance of its obligations under this Agreement, and/or for damages. (c) Remedies Provided Under DDLA. The Agency may exercise any other remedy provided under the DDLA. 4.5 Attorneys Fees and Costs. In any action brought to enforce this Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including attorneys' fees. This section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute. 4.6 Recording and Filing. The Agency and the Developer shall cause this Agreement, and all amendments and supplements to it, to be recorded in the Official Records of the County of Marin. 4.7 Governing Law. This Agreement shall be governed by the laws of the State of California. 4.8 Waiver of Requirements. Any of the requirements of this Agreement may be expressly waived by the Agency in writing, but no waiver by the Agency of any requirement of this Agreement shall, or shall be deemed to, extend to or affect any other provision of this Agreement. 4.9 Amendments. This Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title, and duly recorded in the real property records of the County of Marin. 4.10 Notices. Any notice requirement set forth herein shall be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage prepaid, addressed to the appropriate party as follows: 102020.P50 10/12/95 -11- Developer: Ecumenical Association for Housing 2169 East Francisco Boulevard, Suite B San Rafael, CA 94901 Attention: Executive Director Agency: Tiburon Redevelopment Agency 1155 Tiburon Boulevard Tiburon, CA 94920 Attention: Executive Director Such addresses may be changed by notice to the other party given in the same manner as provided above. 4.11 Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this Agreement shall not in any way be affected or impaired thereby. 4.12 No Impairment of Security Financina Interests. No violation or breach of the covenants, conditions, restrictions, provisions, or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or change of any Security Financing Interest to which the lien of this Agreement has been subordinated in accordance with the provisions of Section 5.8 of the DDLA. 102020.P50 10/12/95 -12- IN WITNESS WHEREOF, the Agency and the Developer have executed this Agreement by duly authorized representatives, all on the date first written above. ATTEST: DEVELOPER: ECUMENICAL ASSOCIATION FOR HOUSING, a California nonprofit public benefit corporation By: ~ ► ou Its. ce AGENCY: TIBURON REDEVELOPMENT AGENCY, a public body, corporate and politic 0 BY: U k3 By: Its: APPROVED AS TO FORM: By: 2~-~ • A ncy Counsel V- la/x~~'►s 102020.PSO 10/12/95 -13- NOTARY CERTIFICATES STATE OF CALIFORNIA COUNTY OF r ( ) ss. On € Z , 199, befo me the undersigned, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. &V&4t" ab',jq"-j1 STATE OF CALIFORNIA ) )ss. COUNTY OF ANDREW ROBERT KARRS Commission #1067621 Notary Public - Caftala MAMN COUNTY L4W wm pMy Comm. Expim"2.1999 On 7A CZbNV4.. , 199.5, before me, the undersigned, a Notary Public, personally appeared ft C2.T Lt k,1..otaedvr , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person (s) acted, executed the instrument. WITNESS my hand and official seal. Richard Strar zl Com #96457' m. 9 G NOTARY PUBLIC • CALIF )ANIA MAAIN COUNTY Comm. EXPIM Aprf123, 199"- 10201 P.P50 10/04/95 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY ALL THAT CERTAIN real property situate in the City of Tiburon, County of Marin, State of California, described below as follows: Parcel A, as shown upon that certain Parcel Map entitled, "Map of Tiburon Highlands, Town of Tiburon, Marin Co., State of California," filed for record November 1, 1988 in Book 20 of Maps, at Page 50, Marin County Records. 10201 P.P50 10/04/95