HomeMy WebLinkAboutMINUTES - 10162001 - D.4 Contra
' �_ •,�y Costa
TO:* BOARD OF SUPERVISORS Jy. County
FROM: Dennis M. Barry, AICP, Director of Community Development
DATE: October 16, 2001
SUBJECT: Dougherty Valley Affordable Housing Program
SPECIFIC REQUEST(S) OR RECOMMENDATIONS(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
With respect to the Dougherty Valley Affordable Housing Program:
1. CONSIDER report and recommendations from the Director of Community Development regarding:
a) Amendments to the Dougherty Valley Affordable Housing Program
relative to Moderate Income Rent and Moderate Income Rental Term;
b) Acknowledge receipt of form of implementation documents, including:
• Regulatory Agreement for rental projects;
• Disclosure Form to be used to inform Dougherty Valley homebuyers/tenants of the mixed
income nature of the Dougherty Valley Development Program;
• Proposed form of Condition of Approval for future entitlement actions with respect to theme.
affordable housing obligation; . . .
• Proposed form of Homebuyer Certification for moderate, low, and very low-income
homebuyers; and
2. FIND Shapell Industries of Northern California in compliance with the Dougherty Valley Affordable
Housing Program as of October 1, 1999 and October 1, 2000;
3. APPROVE &AUTHORIZE the Chair to execute an Agreement to Amend Affordable Housing Program
with both Shapell Industries of Northern California, and Windemere BLC Land Company, LLC, which
Agreement attests to the parties concurrance with the aforementioned modifications to the Dougherty
Valley Affordable Housing Program, and the documents to implement its terms;
4. APPROVE AND AUTHORIZE the Director of Community Development,or his designee,to enter into the
following Regulatory Agreements for Moderate Income Units:
• With Shapell for the Falcon Bridge project(Moderate Income Units);
• With Windemere BLC for Project#1 (Moderate Income Units west of Bollinger Canyon
Road, south of Albion Way);
• With Windemere BLC for Project#2 (Moderate Income Units west of Bollinger Canyon
Road, south of Harcourt Way); and
• With Windemere BLC for Project #3 (Very Low/Low Income Units west of Bollinger
Canyon Road, south of Windemere Parkway and north of Harcourt Way).
FISCAL IMPACT
None. No general funds involved.
CONTINUED ON ATTACHMENT: _X_ SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR/� RECOMM'tNDATION OF B ARD
COMMITTEE APPROVE OTHER
SIGNATURE(S):
t
ACTION OF BOARD ON / APPROu D AS RECOMMENDED
i
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT ) TRUE AND CORRECT COPY OF AN
AYES: XX -zr- ►Z" NOES: T1I ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF4 THE BOARD OF
SUPERVISOR N THE DATE SHOWN.
Source: Jim Kennedy is
335-1255 ATTESTED.
JOHN SW]i%TEN, CLERK OF THE
cc: County Administrator's Office BOARD`OF SUPERVISORS AND
County Counsel COUNTY ADMINISTRATOR
Community Development-Land Development
Community Development-Housing
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W APersonal\BOA RDOR DERS\10.2.01.doughertyvalley 1
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BACKGROUND
On August 7, 2001 the Board accepted the report of the Director of Community Development regarding the
Dougherty Valley Affordable Housing (DVAHP) Program, and Shapell Industries compliance with said program.
The Board also declared it would find Shapell in compliance with the DVAHP for the years 1999 and 2000,
conditioned upon receipt of implementing documents and conditions of approval,which are enclosed herewith,for
the Board's consideration. On October 2, 2001 the Board continued the matter to October 16`h with direction to
staff to prepare and seek developer concurrence on a form of Agreement that would obligate the parties to a
modified DVAHP, and clarify the implementing documents.
Dougherty Valley Affordable Housing Program Agreement
Both Shapell and Windemere portions of the Dougherty Valley development are subject to Development
Agreements. Among other things, the Development Agreements require compliance with the DVAHP. The
Development Agreements also require that the Shapell and Windemere projects in Dougherty Valley be
undertaken consistent with the terms and conditions of a May 11, 1994 Agreement to Settlement Litigation
between the County,the City of San Ramon,the Town of Danville,and the Shapell and Windemere development
interests. This Settlement Agreement provides that the DVAHP may be amended with the written agreement of
the County, Shapell, and the Windemere owner (now Windemere BLC Land Company, LLC).
An Agreement to Amend Affordable Housing Program (Exhibits E-1 and E-2)has been developed to attest to the
agreement of the parties. The Agreement to Amend Affordable Housing Program for Shapell is Exhibit E-1,and
Windemere BLC is Exhibit E-2. Both developer parties are agreeable to the form and have executed their
Agreement,and staff recommends the Board of Supervisors approve and authorize execution of the Agreements
to Amend Affordable Housing Program concurrent with the other actions before you.
Modifications to the Dougherty Valley Affordable Housing Program—Moderate Income Rental Component.
In its action of August 7,2001 the Board directed that the staff to return with amendments to the Dougherty Valley
Affordable Housing Program relative to the Moderate Income Rental Component. Staff recommends that:
1. Section III, Definition of"Moderate Income Rent"be amended so that it"means the lesser of(1)
the monthly market rate rent; or (2) a monthly rent which is no greater than 30% of 100% of
Median Monthly Income for a one person household,including a Utility Allowance,for studio units;
a monthly rent which is no greater than 30%of 110%of Median Monthly Income for a two-person
household, including a Utility Allowance for one-bedroom units;no greater than 30%of 120%of
Median Monthly Income for a three person household, including a Utility Allowance for two-
bedroom units; and no greater than 30% of 120% of Median Monthly Income for a four-person
household, including a Utility Allowance for three-bedroom units'; and
2. Amend Section V (13)(2)—Affordability Term, Moderate Income Units as follows:
"Moderate Income Units"shall be maintained as such for the following minimum terms:
a) For sale Moderate Income Units shall be maintained as affordable for the term
governed by its subsidy source. Since the Dougherty Valley Affordable Housing
Program has been developed such that there is no expectation of public
participation as defined below, the Moderate Income for-sale units are not
generally expected to have an affordability term.
b) For rent Moderate Income units and specialized facilities with Affordable Units
shall be maintained as such for a minimum of thirty (30) years if the project is
subject to public participation (which term means the provision of financial
assistance by a public agency in the form of, among other things, a loan,grant,
loan guarantee, the waiver of fees and/or the modification of development
standards solely to enhance the affordability of the units, etc.), and twenty(20)
years if no public financial participation (as defined above) is provided.
Developers/Owners of Moderate Income rental units and specialized facilities
shall enter into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the development.
"Nothing in the foregoing shall prelude the achievement of a longer term of affordability as may be
negotiated or required by financing sources."
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Proposed Form of Implementing Documents
The form of documents implementing the terms of the DVAHP, and the Board's recentdirectives are
provided as follows:
1. Regulatory Agreement and Declaration of Restrictive Covenant,which is a recorded instrument
which runs with the land for their term are included as Attachment A-1 (Very Low/Low Income
Projects), and Attachment A-2(Moderate Income Projects). These are intended to be standard
forms to be executed by the parties and recorded in substantially the form provided.
2. Certification of Homebuyer Eligibility(Attachment B)would be completed and executed by each
applicable homebuyer of a Very Low Income, Low Income, or Moderate Income for-sale unit.
3. A Disclosure Form to be signed by each Dougherty Valley homebuyer,after receipt of disclosure
information, is included as Attachment C.
4. The issue of obtaining certainty with respect to the securement of sites for Very Low Income and
Low Income housing was identified. The desire was to achieve a level of certainty with respect to
delivery of such units in the approved and/or pending phases that is commensurate with the
degree of entitlement certainty being obtained by the developer. A form of Condition of Approval
for a final map approval are included as Attachment D-1. A form of Condition of Approval for a
Final Development Plan is included as Attachment D-2.
Subsequent to the Board's action staff met with County Counsel, the developer's, and their counsel to craft the
Affordable Housing Program Agreement and finalize the language of documents. This report and.set of
recommendations responds to the Board's direction. In addition, the developers have executed and submitted
Regulatory Agreements for the following projects:
• Shapell for the 256 unit Falcon Bridge Moderate Income project;
• W indemere BLC for Project#1,and Project#2,which total 650 Moderate Income units;and
• Windemere BLC for Project#3, a Very Low/Low Income development of 350 units.
Additional Information Regarding Compliance Matters
Three additional matters related to compliance were reviewed as to status and included in the October 2"d report to
the Board. For completeness they are repeated here without alteration. They are:
1. As of September 24, 2001 Shapell had submitted eight (8) lender certifications regarding
Moderate Income Homebuyer sales to date. A preliminary review of the Lender Certification
indicates that all eight (8) homebuyers comply and are fully eligible as Moderate Income
Households. Future homebuyers must complete and execute a Homebuyer Certification
(Attachment B).
2. As of September 24, 2001 Shapell had submitted 61 rental applications from current tenants.
Occupancy of the Falcon Bridge apartments is ongoing. Staff has completed a preliminary
assessment of the information. Each existing tenant will be requested to execute a certificate of
Household Eligibility(Appendix C to Regulatory Agreement)once the DVAHP provisions for rent
and term for Moderate Income units have been determined by the Board. A transition period for
current tenants may be required depending on current lease terms.
3. "Initial Level of Development"Considerations
The Dougherty Valley Settlement Agreements provide for specified performance standards to be
achieved in the traffic area in order to build beyond 8,500 units(the"Initial Level of Development"
as defined in the Settlement Agreement). The County has expressed concern that the delivery of
affordable housing at the Initial Level of Development be proportionate to the DVAHP
requirements.
The annual review process, including the requirement of a finding of compliance with the
Dougherty Valley Affordable Housing Program in order to proceed with the processing and
issuance of subsequent entitlements is the mechanism for achieving this goal. Shapell has
proposed that prior to the issuance of the 3,900`h building permit in Gale Ranch, Shapell
demonstrate that it will be within 10%of the 25%affordable housing goals for the Shapell share
of an 8,500 unit project. This will give the County and Shapell some 600 units to integrate the
remaining affordable units if Shapell is not already at 100%.
In addition,at the Board hearing of October 2,2001 a discussion was held regarding the magnitude of Moderate
Income Rents that would be permitted under the DVAHP with proposed modifications. Reference was made to
prior information provided to the Board by report of June 26, 2001, which report characterized the relationship
between current market rents,and the rent levels possible under the various definitions of"Moderate Income Rent
under discussion."
In response to the discussion staff offers the following clarification. The definition of Moderate Income Rent is"the
lesser of (1) the market rent;" or (2) the calculated rents based on Area Median Income. In no case could an
affordable Moderate Income Rent exceed the market rent for the same unit rented concurrently. If market rents
increase faster than Area Median Income (which has been the trend for some time) the affordable Moderate
Income Rents will drop to a below market rate. If they move together the relationship stays the same. If incomes
rise faster than rents the maximum rent stays capped by the market.
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ATTACHMENT A-1
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Very Low/Low Income Projects)
WAPcrsonaRBOARDORDEM10.2.01.doughcrtyvallcy 4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Street,411,Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[LOW/VERY LOW INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
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TABLE OF CONTENTS
Section 1.. Definitions and Interpretation......................................................:.................................2
Section 2. Acquisition, Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ...........................................................................................5
Section 4. Low/Very Low Income Households/Rents. ...............................................................6
Section5. Indemnification.................................................................................................................9
Section6. Consideration....................................................................................................................9
Section7. Reliance..............................................................................................................................9
Section 8. Sale or'Transfer of the Project.......................................................................................10
Section9. Term..................................................................................................................................10
Section 10. Covenants to Run With the Land...............................................................................10
Section 11. Burden and Benefit.......................................................................................................11
Section 12. Uniformity;Con-unon Plan..........................................................................................11
Section13. Enforcement...................................................................................................................11
Section 14. Recording and Filing....................................................................................................12
Section 15. Payment of Fees............................................................................................................12
Section16. Governing Law. ............................................................................................................12
Section17. Amendments.................................................................................................................12
Section18. Notice..............................................................................................................................12
Section19. Severability....................................................................................................................13
Section 20. Multiple Counterparts. ................................................................................................13
EXHIBIT A- DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATE OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement") is dated as of October_, 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994,
and amended such program on .200-1 (as so amended,the "DVAHP");and
WHEREAS, on 2001, County and Owner entered into that certain
Agreement to Amend Affordable Housing Program, pursuant to wluch agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Goveriunent Code, which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and, under the terms of Owner's Development
Agreement with County,is entitled to develop, among other things,up to 5,170 dwelling units
on the Property in accordance with the Specific Plan and subject to the terms and
provisions of, among other things, that certain May 11, 1994 Agreement to Settle Litigation
between the County,the Town of Danville,the City of San Ramon,Shapell Industries,Inc., and
Wu-idemere Ranch Partners,which Settlement Agreement imposes certain conditions to the
development of more than 8500 dwelling units within the Dougherty Valley (the
" Project");
WHEREAS, in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
Project(the "Tentative Map") and, on , 2001, approved a large-
lot final subdivision map (the "Final Map"),which Final Map has been recorded in the Official
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Records of Contra Costa County and which creates certain parcels within "Area A" as shown on
the Tentative Map for the construction of rental units;
WHEREAS,Parcel_as shown on the Final Map is a=acre parcel upon which
Owner intends to construct rental units to be rented to low and very low income
households as more fully provided below (collectively, the "Low Income Units" and the "Very
Low Income Units," respectively).
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration,the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
0
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Iticome" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to.reside with such person in one residential unit) as
calculated in the manner prescribed.in Exhibit C.
"Affordable Units" means any one or more of the uiuts reserved for occupancy by Very
Low, Low, and Moderate Income Households on the Property. The
Dougherty Valley Specific Plan requires that 25% of the units on the Property
be Affordable Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Cotttinuing Program Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Contpleliorr Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAIIP" means Dougherty Valley Affordable Housing Program., as amended by the
Board.of Supervisors pursuant to the mutual agreement of the parties on
2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
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"Incane Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
"Lower Inconre" means generically all households of Very Low, Low, and Moderate
Income.
"Low Income Households" means households whose annual incomes are from.51 to (and
including) 80 percent of the Contra Costa County Median Income, as adjusted for family size
and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Low Income Rent"means the lesser of(1) the monthly market rate rent,including a
Utility Allowance; or (2) a monthly rent which is no greater than one hundred percent (1.00%)
of the Section 8 Existing Program Fair Market Rents, established in accordance with 24 CFR
Part 882,effective at the time of occupancy, less the Utility Allowance then in effect.
"LOW Income Units"means the rental units to be constructed by Owner on the
Project Site and rented to,or held available for occupancy by, Low Income Households.
"Median Inconie" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Montitly Income" means 1/12 of the Median Income.
"Moderate Income Households" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Incorne Rent" means the lesser of (1) the monthly market rate rent; or (2) for
studio units, a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income, including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of. the Median Monthly Income,including a Utility Allowance;for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income,including a Utility Allowance; and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income, including a Utility
Allowance. Rents for studio units shall be calibrated utilizing the one-person Median Income
Household income;one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income, etc.
"Owner"means and its successors and assigns, as owner of the
Project Site.
"Project" means the [Lozv][Ventj Lozv] Income Units to be constructed by Owner on
the Project Site.
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"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of. the Owner located on, or
used in connection with, such buildings,structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A, which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is thirty (30) years after the
date on which at least fifty percent (50%) of the dwelling units in the Project were first
occupied.
"Regulatory Agreenient" means this Regulatory Agreement and.Declaration of Restrictive
Covenants.
"Utility Allowance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
"Very L07V Income Households" means households whose annual incomes do not exceed
50 percent of the Contra Costa County Median Income for Contra Costa County, as adjusted for
family size and published by the State Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Very Lou) Income Rent" means a monthly rent,which is no greater than 30% of 50% of
the Median Monthly Income including a Utility Allowance. Rents for studio units shall be
calibrated utilizing the one-person Very Low Income Household income;one-bedroom units
shall use a two-person Very Low Income Households income, two-bedroom units shall use a
three-person Very Low Income Households income, etc.
"Very Lozv Income Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by,Very Low Income Households.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine,feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa,when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition, Construction, Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as follows:
(a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
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(b) The Owner reasonably expects to complete the construction of the Project
by 200,.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take, as applicable, any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned, managed and operated as a residential rental project for a term equal to the Qualified
Project Period. To that end, and for the term of the Qualified Project.Period,the Owner hereby
represents,covenants, warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Low and Very Low Income Households, and the Owner
will own, manage and operate the Project as a project to provide multifamily residential
rental property to Low and Very Low Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living,sleeping,eating,cooking and sanitation for a single person or a
family,including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink.
(c) Owner shall include,in any and all rental agreements, provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel,motel, dormitory,fraternity house,sorority house,rooming house, nursing home,
hospital,sanitarium,rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Low or Very Low Income Households.
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(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road, street or stream, and all of the Project Facilities will
coinprise a single geographically and functionally integrated project for residential
rental property, as evidenced by the ownership, management, accounting and operation
of the Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however,that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period,the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units.
(i) During the Qualified Project Period, Owner will not discriminate on the
basis of race, creed,color,sex,sexual orientation,national origin or ancestry, religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance hi connection with the rental, use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. [L,ozul[Venl L07VI Income Households/Rents. Owner hereby represents,
warrants and covenants as follows:
(a) Commencing on the Completion Date, [Low][Very Low]shall occupy
percent(_%) of all completed and occupied units in the Project; and for
the Qualified Project Period no less than_% of the total number of completed units of
the Project shall at all times be rented to and occupied by [Low][Venj Lozu] Income
Households. For the purposes of this paragraph (a), a vacant unit which was most
recently occupied by a [Low][Venj Low]Income Household is treated as rented and
occupied by a [Lozu][Very Lozu] Income Household until reoccupied. Tenants in the
[LOWI[Venj Lozu]Income Units will have equal access and enjoyment to all common
.facilities of the Project.
(b) The rents for the [L07V][Very Lozu] Income Units shall not exceed the
(Lozu][Ven•/ Lou-1 Income Rent,respectively.
(c) No tenant qualifying as a [Low][Veiy Lozu] Income Household shall be
denied continued occupancy of a unit in the Project because, after adinission, such
tenant's Adjusted Income increases to exceed the qualifying limit for [L ow][Venj Lozu]
Income Households; provided,however, that should a [Very LOW, Lozu] Income
Household's Adjusted Income, as of the most recent determination thereof, exceed one
hundred forty percent(140%) of the applicable income limit for a [Very Low, Lozu]
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Income Household of the same family size, the next available unit of comparable or
smaller size must be rented to (or held vacant and available for immediate occupancy
by) a [Venj Low, Lozv] Income Household; and provided further that,until such next
available unit is rented to a [Very Low, Low]Income Household, the former [Venj Low,
Lom] Income Household who has ceased to qualify as such shall be deemed to continue
to be a [Venj Lozv, Lozv] Income Household for purposes of the percent (_%)
requirement of Section 4(a) hereof until the next available unit of comparable or smaller
size is rented to a qualifying[Venj Lou), Lozv] Income Household.
(d) The Owner will.obtain, complete, and maintain on file Income
Certifications from each [Lozv][Very Lozv] Income Household in the form attached hereto
as Exhibit C, dated no more than thirty (30) days prior to the initial occupancy of such
ILozv][Veiy LOW] Income Household in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner will also obtain,complete, and maintain on file an
annual Income Certification from each [Very Low, Lozv]Income Household, dated the
anniversary of the date of initial occupancy in the Project by such[Very Low, Lozv]
Income Household. A copy of the most recent Income Certification for[Very LOW, Lozv]
Income Household commencing or continuing occupation of a [Venj Low, Lozv] Income
Unit shall be attached to each report to be filed with the County. The Owner shall make
a good faith effort to verify that the income provided by an applicant in an Income
Certification is accurate by taking one or more of the following steps as a part of the
verification process: (1) obtain a pay stub for the most recent three months, (2) obtain an
income tax return for the most recent tax year, (3) conduct a TRW Credit Bureau or other
similar search, (4) obtain an income verification from the applicant's current employer,
(5) obtain an income verification from the Social Security Administration and/or the
California Department of Social Services if the applicant receives assistance from either
of such agencies, or (6) if the applicant is unemployed and does not have an income tax
return, obtain another form of independent verification. The Owner shall also engage in
a review of bank statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
[L.ozv][Venj Lozv] Income Units, and will permit any duly authorized representative of
the County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the [Low][Very Lozv] Income
Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of. Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection(a) hereof,by [Lozv][Very Lozv]
Income Households during such period; (ii) that either (A) no unremedied default has
occurred under this Regulatory Agreement or (B),a default has occurred, in which event
the certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
7
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(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a [Lozv][Very Lozv] Income
Unit shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the [Low][Venj Lozv] Income
Household in determining qualification for occupancy of the [Low][Very Lozv] Income
Unit, and that any material misstatement in such certification(whether or not
intentional) will be cause for immediate termination of such lease or rental agreement.
Each such lease or rental agreement shall also provide that the tenant's income is subject
to annual certification in accordance with Section 4(d) hereof and that if upon any such
certification such tenant's Adjusted Income exceeds one hundred forty percent (140%) of
the applicable income limit for a [Lozv][Venj L ozuI Income Tenant of the same family size,
such tenant shall, subject to (b) above,cease to qualify as a [Venj Low, Low]Income
Tenant, and such tenant's rent is subject to increase. A lease addendum setting forth
procedures for handling changes in tenant status shall be part of each lease agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County, but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period,Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
[Lozv][Venj Low] Income Unit at the date of expiration or termination, and at a rent not
greater than the amount set forth in Section 4(b),until the earliest of any of the
following occurs: (1) the household's income exceeds 140 percent of the maximum
eligible income for [Low][Very L o7VI Income Households; (2) the household voluntarily
moves or is evicted for "good cause" ("good cause" for the purposes of this subsection,
means the nonpayment of rent or facts necessary to prove major, or repeated minor,
violations of material provisions of the occupancy agreement which detrimentally affect
the health and safety of other persons or the structure, the fiscal integrity of the Project,
or the purposes or special programs of the Project); (3) two years after the expiration of
the Qualified Project Period; or (4) Owner pays the relocation assistance and benefits to
tenants as provided in subdivision (b) of Section 7264 of the Government Code. During
t-he three years prior to expiration of the Qualified Project Period,Owner shall continue
to make available to eligible households [Lozv][Venj Lozv] Income Units that have been
vacated to the same extent that nonreserved units are made available to noneligible
households.
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(1) All tenant lists, applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
shall be maintained.as required by the County, in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not pern-dt occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County vn writing,but(i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local, state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify
and hold harmless the County and its officers, directors, officials, employees and agents from
and against any and all claims made by any person (including claims for reasonable attorneys'
fees and costs) arising from any act or omission of the Owner or any of its agents,contractors,
servants,employees or licensees in connection with the design, construction, installation,
operation, use, occupancy, maintenance, or ownership of the Project(including any failure to
comply with laws, ordinances,rules or regulations of public authorities relating thereto or the
terms an d provisions of this Agreement);except to the extent any such claim arises from the
sole negligence of the County. In the event that any such claim, action or proceeding is brought
against the County or any of its officers, directors, officials,employees or agents,with respect to
which indemnity may be sought hereunder, the Owner, upon written notice from County, shall
assume the investigation and defense thereof, including the employment of counsel and the
payment of all expenses. County shall have the right to employ separate counsel in any such
action or proceedings and to participate in the defense thereof, and Owner shall pay the
reasonable fees and expenses of such separate counsel; provided that County shall have the
right to review and reasonably approve or disapprove any compron-dse or settlement. The
provisions of this Section 5 shall survive the term of this Regulatory Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP, for
the purpose, among others, of inducing Owner to develop the Project Site and,construct, equip
and operate the Project with [LOW]JVenj Lozu] Income Units. In consideration of these
development approvals by the County, the Owner has entered into this Regulatory Agreement
and has agreed to restrict the uses to which this Project can be put on the terms and conditions
set forth herein.
Section 7. Reliance. T1ne County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of the [LOW][Venj Lozu] Income Households and upon
audits of the books and records of the Owner pertaining to the Project. In determining whether
any default or lack of compliance by the Owner exists under this Regulatory Agreement, the
9
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County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof (other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),-without obtaining the prior written consent of the County, which consent of the
County shall be given upon receipt by the County of(i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large nuxed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable,financially and otherwise, of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof;provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement.The County and the Owner hereby declare their express intent that the
covenants, reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns; provided,
however, that on the termination of this Regulatory Agreement said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed., delivered and accepted subject to such covenants, reservations and
restrictions, regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare thea
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County,and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by[L ozv][Very Lozv] Income Tenants, the intended beneficiaries of such
covenants,reservations and restrictions, and by furthering the public purposes for which the
project was approved.
Section 12. Uniformity; Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a conunon
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in t1-ds Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an"Event of Default" to have
occurred hereunder,provided,however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days, such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
Owner hereby grants to the County the option,upon the expiration of 60 days after the
giving of the notice to Owner of Owner's default under this Regulatory Agreement, until the
expiration of the Qualified Project Period or the ternunation of this Regulatory Agreement,
whichever first-occurs, to lease up to percent(_%) of the units in the Project for a rental
of$1.00 per unit per year.for the purpose of subleasing such units to [Lozv][Venj Lozv] Income
Households,but only to the extent necessary to comply with the provisions of Section 3 and
Section 4. The option granted in the preceding sentence shall be effective only if the Owner has
not instituted corrective action within such 60-day period. Upon the achievement,by the
Owner or the County, of compliance with the requirements of Section 3 and Section 4, County
and Owner will terminate any lease entered into between Owner and County pursuant to this
section and County shall assign to Owner any subleases entered into by County hereunder. In
the event County exercises its option hereunder,the County shall make diligent effort to
sublease [LozvJ[Veiy Lozv] Income Units to (Lozv][Venj Lozv] Income Households for monthly
11
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rental amounts equivalent to those collected from tenants of similar units in the Project but,
provided County exercises such diligent efforts, shall not be required to obtain such rental
amounts. Any rental paid under any such sublease shall be paid to the Owner after County has
been reimbursed for any expenses incurred in connection with such sublease. All fees,costs
and expenses of the County incurred in taking any action pursuant to this Section shall be the
sole responsibility of the Owner. The Owner hereby agrees that specific enforcement of the
Owner's agreements contained herein is the only means by which the County may obtain the
benefits of such agreements made by the Owner herein and the Owner therefore agrees to the
imposition of the remedy of specific performance against it in the case of any default by the
Owner hereunder. The remedies set forth in this Section 13 shall be County's exclusive
remedies for violations of this Agreement.
Section 1.4. Recording and Filing. The Owner shall cause tlus Regulatory Agreement
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal the greater of. i) $5,000/year; or ii) $75.00/[Lozv][Venj Lozv] Income
Unit/year,payable in advance in annual installments commencing on and
continuing each thereafter,until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of. the State of California.
Section 17. Amendments.
(a) This Regulatory Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Contra Costa,California.The parties requesting such amendment shall
notify the other parties to this Regulatory Agreement of the proposed amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered mail, postage prepaid, return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
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Notice shall be deemed given three business clays after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable,the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
13
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IN WITNESS WHEREOF,the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
14
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose naive is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted,executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59473
State of California )
ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income Households:
units are occupied by households with cluldren;and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low, Low, Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom [Very Low, Low, Moderate] Income Units is
6. The number of one-bedroom[Very Low, Low, Moderate] Income Units is
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7. The number of former [Very Low, Low] Income Households whose Adjusted Income
has exceeded 140% of the applicable income limit for a [Very Low, Low] Income
Households of the same family size and have therefore ceased to qualify as [Very Low,
Low] Income Households is
Owner:
By:
Its:
B-2
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [naive and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn,state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the - to Head of Security Place of
Household Household Agee Number Employment
HEAD
6. The anticipated 'income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons fust occupy the apartment or
sign a lease with respect to the apartment,including income described in (a) below,but
excluding all income described in (b) below, is $
(a) The amount set forth above includes all of the following income (unless
such income is described in (b) below):
(i) all wages and salaries, over-time pay, commissions, fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
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business or profession,except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and 'include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities,insurance policies,retirement funds,pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities, include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities,plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage,the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child.
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household,spouse or other household member whose dependents are residing
in the unit;and
(ix) any earned 'income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
C-2
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and worker's compensation),capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees,books, equipment, materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment,clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of. 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6) has any savings, stocks,bonds, equity in real property
or other form of capital investment(excluding interests in Indian trust lands, but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor),provide:
(a) the total value of all such assets owned by all such persons: $ ,and
C-3
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
C-4
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FOR COMPLETION BY PROJECT OWNER ONLY:
1. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) 1.f the amount entered in 7(a) above is greater than S5,000, enter:
(i) the .product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0,enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
Il. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
C-5
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Median Income for the Area" means median income for the Contra Costa County, adjusted
for fanuly size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with tlne provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
iii the Project(i) are occupied by [Very Low,Low, Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and.have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low,Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low, Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
D-1
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EXHIBIT E
COMPLETION CERTIFICATE
The Luidersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
E-1
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ATTACHMENT A-2
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Moderate Income Projects)
W APersonal\BOARDORDEM I0.2.01.doughertyvalley 5
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Street,41"Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[MODERATE INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
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TABLE OF CONTENTS
Section 1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition,Construction,Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ............................................................................................4
Section 4. Moderate Income Households/Rents. ..........................................................................5
Section5. Indemnification.................................................................................................................8
Section6. Consideration....................................................................................................................8
Section7. Reliance..............................................................................................................................8
Section 8. Sale or Transfer of the Project.........................................................................................9
Section9. Term....................:...............................................................................................................9
Section 10. Covenants to Run With the Land.................................................................................9
Section 11. Burden and Benefit.......................................................................................................10
Section 12. Uniformity; Common Plan...........................................................................................10
Section7.3. Enforcement...................................................................................................................10
Section 14. Recording and Filing....................................................................................................11
Section15. Payment of Fees............................................................................................................11
Section16. Governing Law. ............................................................................................................11
Section17. Amendments.................................................................................................................11
Section18. Notice..............................................................................................................................11
Section19. Severability....................................................................................................................12
Section 20. Multiple Counterparts. ................................................................................................12
EXHIBIT A- DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATION OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the"Regulatory Agreement") is dated as of October 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WIEREAS, in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994, and
amended such program on 2001 (as so amended, the "DVAHP"); and
WHEREAS, on 2001, County and Owner entered into that certain
Agreement to Arnend Affordable Housing Program, pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and, under the terms of Owner's
Development Agreement with County, is entitled to develop, among other things,up to
dwelling units on the Property in accordance with the Specific.Plan and
subject to the terms and provisions of, among other things, that certain May 11, 1994 Agreement
to Settle Litigation between the County, the Town of Danville, the City of San Ramon,Shapell
Industries, Inc. and Windemere Ranch Partners,which Settlement Agreement imposes certain
conditions to the development of more than 8500 dwelling units within the Dougherty Valley
(the Project");
WHEREAS,in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
Project(the "Tentative Map") and, on 2001, approved a final
subdivision snap (the "Final Map"),which Final Map has been recorded in the Official.Records
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of Contra Costa County and which creates certain parcels within "Area A" as shown on the
Tentative Map for the construction of rental units;
WHEREAS,Parcel—as shown on the Final Map is a_-acre parcel upon which
Owner intends to construct_rental units to be rented to moderate income households as
more fully provided below (collectively, the "Moderate Income Units").
NOW,THEREFORE,in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means.the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low, Low, and Moderate Income Households on the Property. The Dougherty
Valley Specific Plan requires that 25% of the units on the Property be Affordable
Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Conrpletion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Concpletion Date" means the date of the completion of the construction and equipping of
the.Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on 2001.
"Housing Act" means the United States Housing Act of 1.937, as amended, or its
successor.
"Incorne Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
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"Median Income" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Iousing and Community
Development pursuant to Health &Safety Code Sections 50079.5 and 50105.
"Median Monthly Income" means 1/12 of the Median Income.
"Moderate Income Households" means households whose annual incomes are from 81 to
(and 'including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health &Safety Code Sections 50079.5 and 50105.
"Moderate Ir►come Rent" means the lesser of(1) the monthly market rate rent; or (2) for
studio units,a .monthly rent which is no greater than 30% of 100% of the Median Monthly
Income, including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance;for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income,including a Utility Allowance; and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income,including a Utility
Allowance. Rents for studio units shall be calculated utilizing the one-person Median Income
Household income; one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income,etc.
"'Moderate Inconie Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held.available for occupancy by, Moderate Income Households.
"Ozuner" means and its successors and assigns, as owner of the
Project Site.
"Project" means the Moderate Income Units to be constructed by Owner on the
Project Site.
Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with, such buildings,structures and other improvements constituting the
Project.
"Project Site" means Parcel`as shown on the Final Map and more fully described on
Exhibit A, which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is twenty (20) years after the
date on which at least fifty percent(50%) of the dwelling units in the Project were first
occupied. [20-year Qualified.Project Period Assumes no public participation as defined in revised
D VATIP.I
"Regulator,/Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
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"Utilify Allowance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine,feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa,when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction, Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project-Period, as follows:
(a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
(b) The Owner reasonably expects to complete the construction of the Project
by 200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take, as applicable,any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement in the form attached as Exhibit D.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned,managed and operated as a residential rental project-for a term equal to the Qualified
Project Period. To that end, and for the term of the Qualified Project Period, the Owner hereby
represents,covenants, warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Moderate Income Households, and the Owner will own,
manage and operate the Project as a project to provide multifamily residential rental
property to Moderate Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living, sleeping, eating,cooking and sanitation for a single person or a
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family,including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range,refrigerator and sink.
(c) Owner shall include, in any and all rental agreements,provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel,motel, dormitory,fraternity house, sorority house,rooming house,nursing home,
hospital, sanitarium,rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownerslnip or use, other
than filing a condominium map and final tract snap on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Moderate Income Households.
(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road,street or stream, and all of the Project Facilities comprise
a single geographically and functionally integrated project for residential rental
property,as evidenced by the ownership,management, accounting and operation of the
Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents, contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units. [For nuxed-
incoine projects only.]
(i) During the Qualified Project Period,Owner will not discriminate on the
basis of race, creed, color,sex, sexual orientation,national origin or ancestry, religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental, use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project,and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. Moderate Income Households/Rents. Owner hereby represents,warrants
and covenants as follows:
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(a) Commencing on the Completion Date, Moderate Income Households
shall occupy percent(_%) of all completed and occupied units in the
Project; and for the Qualified Project Period no less than_% of the total number of
completed units of the Project shall at all times be rented to and occupied by Moderate
Income Households. For the purposes of this paragraph (a), a vacant unit which was
most recently occupied by a Moderate Income Household is treated as rented and
occupied by a Moderate Income Household until reoccupied. Tenants in the Moderate
Income Units will have equal access and enjoyment to all common facilities of the
Project.
(b) The rents for the Moderate Income Units shall not exceed the Moderate
Income Rent.
(c) No tenant qualifying as a Moderate Income Household shall be denied
continued occupancy of a unit in the Project-because, after adnussion, such tenant's
Adjusted Income increases to exceed the qualifying limit for Moderate Income
Households.
(d) The Owner will obtain, complete, and maintain on file Income
Certifications from each Moderate Income Household in the form attached hereto as
Exhibit C. dated no more than thirty (30) days prior to the initial occupancy of such
Moderate Income Household in the Project, and will provide.such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner shall make a good faith effort to verify that the
income provided by an applicant in an Income Certification is accurate by taking one or
more of the following steps as a part of the verification process: (1) obtain a pay stub for
the most recent three months, (2) obtain an income tax return for the most recent tax
year, (3) conduct a TRW Credit Bureau or other similar search, (4) obtain an income
verification from the applicant's current employer, (5) obtain an income verification
from the Social Security Administration and/or the California Department of Social
Services if the applicant receives assistance from either of such agencies, or (6) if the
applicant is unemployed and does not have an income tax return,obtain another form
of independent verification. The Owner shall also engage in a review of bank
statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
Moderate Income Units, and will permit any duly authorized representative of the
County to inspect-the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the Moderate Income Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,by Moderate Income
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Households during such period; (ii) that either (A) no unremedied default has occurred
under this Regulatory Agreement or (li) a default has occurred,in which event the
certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a Moderate Income Unit
shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the Moderate Income'Household
in determining qualification for occupancy of the Moderate Income Unit, and that any
material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease or rental agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period, Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
Moderate Income Unit at the date of expiration or termination, and at a rent not greater
than the amount set forth in.Section 4 (b),until the earliest of any of the following
occurs: (1) the household's income exceeds 140 percent of t11e maximum eligible income
for Moderate Income Households; (2) the household voluntarily moves or is evicted for
"good cause" ("good cause" for the purposes of this subsection, means the nonpayment
of rent or facts necessary to prove major, or repeated minor, violations of material
provisions of the occupancy agreement which detrimentally affect the health and safety
of other persons or the structure, the fiscal integrity of the Project, or the purposes or
special programs of the Project); (3) two years after the expiration of the Qualified
Project Period; or (4) Owner pays the relocation assistance and benefits to tenants as
provided in subdivision (b) of Section 7264 of the Government Code. During the three
years prior to expiration of the Qualified Project Period, Owner shall continue to make
available to eligible households Moderate Income Units that have beers vacated to the
same extent that nonreserved units are made available to noneligible households.
(1) All tenant lists, applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
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shall be maintained as required by the County, in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of. the County may be expressly waived by the
County in writing, but(i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local,state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify,
defend and hold harmless the County and its officers, directors, officials, employees and agents
from and against any and all claims made by any person (including claims for reasonable
attorneys' fees and costs) arising from any act or omission of the Owner or any of its agents,
contractors, servants, employees or licensees in connection with the design, construction,
installation,operation,use,occupancy,maintenance,or ownership of the Project(including any
failure to comply with laws, ordinances,rules or regulations of public authorities relating
thereto or the terms and provisions of this Agreement); except to the extent any such claim
arises from the sole negligence of the County. In the event that any such claim, action or
proceeding is brought against the County or any of its officers, directors, officials, employees or
agents,with respect to which indemnity may be sought hereunder, the Owner, upon written
notice from County, shall assume the investigation and defense thereof, including the
employment of counsel and the payment of all expenses. County shall have the right to employ
separate counsel in any such action or proceedings and to participate in the defense thereof.,
and Owner shall pay the reasonable fees and expenses of such separate counsel;provided that
County shall have the right to review and reasonably approve or disapprove any compromise
or settlement. The provisions of this Section 5 shall survive the term of this Regulatory
Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose,among others, of inducing Owner to develop the Project Site and,construct, equip
and operate the Project with Moderate Income Units. In consideration of these development
approvals by the County, the Owner has entered into this Regulatory Agreement and has
agreed to restrict the uses to which this Project can be put on the terms and conditions set forth
herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of. the Moderate Income Households and upon audits of
the books and records of the Owner pertaining to the Project. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, the
County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
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S
respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County), without obtaining the prior written consent of the County, which consent of the
County shall be given upon receipt by the County of (i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large mixed-income or affordable rental housing
projects, without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable,financially and otherwise,of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall ternunate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute,deliver and record appropriate instruments of release and discharge of
the terms hereof;provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the ternnunation of thus Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants, reservations and restrictions set forth in this
Regulatory Agreement. The County and the Owner hereby declare their express intent that the
covenants,reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns; provided,
however, that on the termination of this Regulatory Agreement said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants, reservations and
restrictions,regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by Moderate Income Tenants, the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the public purposes for which the project was
approved.
Section 12. Unifo.rmi!y;Common Plan. The covenants,reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such d.efau.lt remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an "Event of Default" to have
occurred hereunder,provided,however,that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days, such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of the Owner hereunder.
The Owner hereby grants to the County the option,upon the expiration of 60 days after
the giving of the notice to Owner of the Owner's default under this Regulatory Agreement,
until the expiration of the Qualified Project Period or the termination of this Regulatory
Agreement,whichever first occurs, to lease up to percent(_%) of the units in the
Project for a rental of$1.00 per unit per year for the purpose of subleasing such units to
Moderate Income Households,but only to the extent necessary to comply with the provisions
of Section 3 and Section 4. The option granted in the preceding sentence shall be effective only
if the Owner has not instituted corrective action within such 60-day period. Upon the
achievement,by the Owner or the County, of compliance with the requirements of Section 3
and Section 4, County and Owner will terminate any leases entered into between Owner and
County pursuant to the option provided herein and County shall assign to Owner any
subleases entered into by County hereunder. In the event County exercises its option
hereunder, the County shall make diligent effort to sublease Moderate Income Units to
Moderate Income Households for monthly rental amounts equivalent to those collected from
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tenants of similar units in the Project but,provided County exercises such diligent efforts,shall
not be required to obtain such rental amounts. Any rental paid under any such sublease shall
be paid to the Owner after County has been reimbursed for any expenses incurred in
connection with such sublease. All fees,costs and expenses of the County incurred in taking
any action pursuant to this Section shall be the sole responsibility of the Owner. The Owner
hereby agrees that specific enforcement of the Owner's agreements contained herein is the only
means by which the County may obtain the benefits of such agreements made by the Owner
herein and the Owner therefore agrees to the imposition of the remedy of specific performance
against it in the case of any default by the Owner hereunder. The remedies set forth in this
Section 13 shall be County's exclusive remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
.fee in an amount equal to the greater of(i) $5000/year; or (ii) $75.00/Moderate Income
Unit/year, payable in advance in annual instalhnents commencing on and
continuing on each thereafter, until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per anrium.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments. This Regulatory Agreement shall be amended only by a
written instrument executed by the parties hereto or their successors in title, and duly recorded
in the real property records of the County of Contra Costa,California.The parties requesting
such amendment shall notify the other parties to this Regulatory Agreement of the proposed
amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered mail,postage prepaid,return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified un writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"'Floor, North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
With a copy to:
. 17.
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
I
12
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
13
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State of California )
ss
County of )
On before me, ,Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed th.e instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59065
State of California )
ss
County of )
On. before me, , Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
W:fTNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the dale hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income.Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low, Low,Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low,Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom [Very Low, Low, Moderate] Income Units is
6. The number of one-bedroom [Very Low, Low,Moderate] Income Units is
Owner:
By:
Its:
B-1
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn, state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Naive of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons first occupy the apartment or
sign a lease with respect to the apartment, including income described in (a) below,but
excluding all income described in (b) below, is$
(a) The amount set forth above includes all of the following income (unless
such income is described in (b) below):
(i) all wages and salaries, over-time pay,commissions, fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from.the operation of a
C-1.
we-59065
business or profession, except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(.iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) . L-he full amount of periodic payments received from social
security, armuities,insurance policies, retirement funds,pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings,such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities, plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii.) all regular pay,special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit;and
(ix) any earned 'income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of. 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
C-2
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and worker's compensation),capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution,and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees,books, equipment,materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS);or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment,clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income .
or contributions were included in item 6) has any savings, stocks,bonds,equity in real property
or other form of capital investment (excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $ , and
C-3
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me thus day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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POR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than 55,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line l(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify .as individuals or a family of [Very Low, Low,
Moderate] income.
. The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
C-5
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Median Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner")has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
in the Project (i) are occupied by [Very Low, Low,Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low,Low,Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low, Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
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EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
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ATTACHMENT B
Certification of Homebuyer Eligibility
i
W:\PersonaABOARDORDERS\10.2.01.doughcrtyvallcy 6
CERTIFICATION OF HOMEBUYER ELIGIBILITY
RE: [name and address of Property] Purchase Price $
Developers of new homes in the Dougherty Valley are subject to conditions set forth in the Contra
Costa County Dougherty Valley Affordable Housing Program (DVAHP). The purchasers of homes
subject to the provisions of the DVAHP are required to meet certain eligibility requirements,
including income eligibility. For purposes of this Homebuyer Certification, the following definitions
will apply:
• "Moderate Income Households" means households whose incomes are from 81 to (and
including) 120 percent of the Contra Costa Median Income, as adjusted for family size and .
published by the California Department of Housing and Community Development pursuant to
Health and Safety Code Section 50093.
• "Low Income Households" means households whose incomes are from 51 to (and including) 80
percent of the Contra Costa Median Income, as adjusted for family size and published by
the California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50079.5.
• "Very Low Income Households" means households whose incomes do not exceed 50 percent
of the Contra Costa Median Income, as adjusted for family size and published by the
California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50105.
I/We, the undersigned, being first duly sworn, state that I/we have read the foregoing and
answered fully and truthfully each of the following questions for all persons who are to occupy the .
above property for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Aae Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period beginning on the
later of the date on which the above persons first occupy the residence, including income described
in (a) below, but excluding all income described in (b) below, is
(a) The amount set forth above includes all of the following
income (unless such income is described in (b) below):
W:Personal\DoughertyValley\ExhibitC.DoughertyVaIley.9.01 1
(i) all wages and salaries, over-time pay, commissions, fees, tips
and bonuses and other compensation for personal services, before payroll
deductions;
(ii) net annual income from the operation of a business or
profession or from the rental of real or personal property (without
deducting expenditures for business expansion or amortization of capital
indebtedness). (An allowance for depreciation of assets used in a business or
profession may be deducted, based on straight-line depreciation, as provided
in Internal Revenue Service regulations. Include any withdrawal of cash or
assets from the operation of a business or profession, except to the extent
the withdrawal is reimbursement of cash or assets invested in the operation
by the above persons):
(iii) interest and dividends (include all income from assets as set
forth in item 7(b) below and include any withdrawal of cash or assets from
an investment, except to the extent the withdrawal is reimbursement of
cash or assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions, disability
or death benefits and other similar types of periodic receipts including a
lump-sum payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation, workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment
includes an amount specifically designated for shelter and utilities that is
subject to adjustment by the welfare assistance agency in accordance with
the actual cost of shelter and utilities, include as income (a) the amount of
the allowance or grant exclusive of the amount specifically designated for
shelter or utilities, plus (b) the maximum amount that the welfare assistance
agency could in fact allow the above persons for shelter and utilities. (If the
welfare assistance is ratably reduced from the standard of need by applying
a percentage, the amount calculated under clause (b) shall be the amount
resulting from one application of the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons
not residing in the dwelling;
W:Persona l\boughertyValley\ExhibitC.0oughertyVaIley.4.01 2
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are
residing in the unit; and
(ix) any earned income tax credit to the extent it exceeds income
tax liability.
(b) The following income is excluded from the amount set forth
above:
(i) Income from employment of children (including foster
children) under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
and worker's compensation), capital gains and settlement for personal 'or
property losses;
(iv) Amounts received by the household that are specifically for,
or in reimbursement of, the cost of medical expenses. for any household
member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the
student or to the education institution, and amounts paid by the Government
to a veteran, for use in meeting the costs of tuition, fees, books, equipment,
materials, supplies, transportation, and miscellaneous personal expenses of
the student. Any amount of such scholarship or payment to a veteran not
used for the above purposes that is available for subsistence is to be
included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
W:Personal\DoughertyValley\ExhibitC.DoughertyVaIley.9.01 3
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use
under a Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of
out-of-pocket expenses incurred (special equipment, clothing,
transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
(ix) Temporary, nonrecurring or sporadic income (including gifts);
or
(x) Amounts specifically excluded by any other federal statute
from consideration as income for purposes of determining eligibility or
benefits under a category of assistance programs that includes assistance
under the United States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income or
contributions were included in item 6) has any savings, stocks, bonds, equity in real property or
other form of capital investment (excluding interests in Indian trust lands, but including the value
of any assets disposed of for less than fair market value (including a disposition in trust, but not in
a foreclosure or bankruptcy sale) during the previous two years in excess of the consideration
received therefore), provide:
(a) the total value of all such assets owned by all such persons: $_, and
(b) the amount of income expected to be derived from such assets in the
12-month period commencing this date: $
W:Personal\DoughertyValley\Exhi bitC.DoughertyVaIley.9.01 4
We acknowledge that all of the above information is relevant to the status of the subject project
and comply with affordable housing requirements of Contra Costa County. I/we certify that a) our
current gross annual household income is as set forth above; b)that the number of persons residing
in our house is ; c) that we intend to occupy the house as our principal place of residence; and
d) we hereby grant permission to (lender) to disclose information in our application files to
Contra Costa County representatives in order to verify our income. I (we) declare under penalty of
perjury that the foregoing is true and correct.
Date:
Purchaser
Purchaser
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the 5tate.of
My Commission Expires:
W:Personal\DoughertyVal ley\ExhibitC.DoughertyVaIley.9.01 5
FOR COMPLETION BY SELLER/LENDER.ONLY.
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a)above is greater than $5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the.amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than $0, enter
$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line I(c) less than [50%, 80%, 120%] of Median Income for
the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low, Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
"Median Income for the Area' means median income for the Contra Costa County, adjusted for
family size as published by the California Department of Housing and Community Development
pursuant to Health & Safety Code Sections 50079.5 and 50105.
W:Personal\DoughertyValley\ExhibitC.DoughertyValley.9.01 6
ATTACHMENT C
Form of Disclosure Statement
\PCrsonaRBOARDOROERSU 0.2.01.doughertyvaIley 7
CONTRA COSTA COUNTY
DOUGHERTY VALLEY AFFORDABLE HOUSING PROGRAM
DISCLOSURE STATEMENT
This statement applies to the following area:
[Include map of project area or site description.]
State Housing Element law requires California jurisdictions to analyze existing and future
housing needs for all economic segments of the population and develop specific policies
and programs to meet the identified needs. In order to assist the County in meeting the
requirements of State Housing Element law, the Contra Costa County Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program (DVAHP) in
March of 1994. The DVAHP was incorporated by reference into agreements between the
County, Shapell Industries of Northern California, and Windemere Ranch Partners-BLC
governing the future development of 11,000 housing units in the Dougherty Valley.
According to the requirements of the DVAHP, a minimum of 25 percent of all housing
units developed within Dougherty Valley must be affordable to very-low, low and
moderate-income households. In addition, at least 10 percent of the affordable units
must be affordable to very-low income households and 25 percent must be affordable to
low-income households.
Assuming all 11,000 housing units are developed, the DVAHP will result in the provision.
of 2,750 affordable housing units in the Dougherty Valley, including 275 affordable to
very-low income households, 688 for low-income households, and 1,788 for moderate- .
income households. While the affordable housing obligation may be met through the
development of either rental or ownership housing, current plans indicate that the
majority of the affordable units will be apartments.
Information concerning the status of the DVAHP including the location of proposed sites
for the affordable units may be obtained from Shapell Industries (408/946-1550) and
Windemere Ranch Partners (Lennar Communities 925/416-4949).
Very-low income households are defined as households with incomes at or below 50 percent of the area
median income for Contra Costa County(AMI)as adjusted for household size and defined by the State
Department of Housing and Community Development. Low-income households are defined as households
with incomes at/below 80 percent AMI,while moderate income households have incomes at/below 120
percent AMI.For example,in December of 2000,the maximum allowable income for a four person very-
low income household was$33,800,the maximum income for a low-income household was$67,600 and
$81,100 for a moderate income household.
Please sign this Disclosure Statement in the space provided below and return it to:
Shapell Industries Lennar Communities
100 North Milpitas Blvd. 5960 Inglewood Drive, # 220
Milpitas, CA 95035 Pleasanton, CA 94588
I have read and understand the above Dougherty Valley Affordable Housing Disclosure
Statement including provisions that require the provision of housing affordable to very-low,
low and moderate-income households in the Dougherty Valley.
By: Dated:
Signature of Buyer/Renter
Print name of Buyer/Renter
kkhhv/word/dvahp7
ATTACHMENT D-1
Form of Condition of Approval for Final Map Approval
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
W APcrsonal\BOARUORUERS\10.2.01.doughertyval ley 8
GALL RANCH PHASE II
NE,IGIiBORHOOD 11
FINAL MAP
AFFORDABLE HOUSING RESERVATION
Parcel (the "Parcel') is designated as a site for housing affordable to .
Very Low Income and .Low Income households (as these terms are defined in
the Dougherty Valley Affordable Housing Program). This Parcel with the
recording of this Final Map is reserved for housing for Very Low Income and
Low Income Households. As a result of this reservation, no initial application
for the development of this parcel shall be made that does not contain a
minimum of 160 units of housing for Very Low Income and Low Income
Households. Should the housing for Very Low Income and Low Income
Households not be funded with the initial application for financing the Parcel or
that portion of the Parcel designated for Very Low Income and Low Income
Households shall remain available, consistent with items V.13.2. and 3. of the
Dougherty Valley Affordable Housing Program.
ATTACHMENT D-2
Form of Condition of Approval for Final Development Plans
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
W:\Personal\BOARDORDERS\10.2.01.doughertyvalley 9
GALL RANCH PHASE II
FINAL DEVELOPMENT PLAN
AFFORDABLE HOUSING
CONDITION OF APPROVAL
Neighborhood 11 in Gale Ranch Phase 11 has been designated by Shapell as a
site for housing affordable to Very Low Income and Low Income Households
(as these terms are defined in the Dougherty Valley Affordable Housing
Program). This neighborhood, with the recording of the first Final Map for Gale
Ranch Phase II shall contain a reservation such that no development application
for Neighborhood 11 shall be approved by the County that does not contain a
minimum of 160 units of housing affordable to Very Low Income and Low
Income Households. Any such application for housing affordable to Very Low
Income and Low Income Households shall be accompanied by an executed
regulatory agreement.
Should the housing affordable to Very Low Income and Low Income
Households not be funded with the initial application for financing, that portion
of the Neighborhood I1 parcel designated for Very Low Income and Low
Income Households shall remain available consistent with items E.E.2. and 3. of
the Dougherty Valley Housing Program.
EXHIBIT E-I
Agreement to Amend Affordable Housing Program (Shapeli Industries)
i
WAPersoaahBOARDOR DERS110.2.01.doughertyvalley 10
i
- i
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
SHAPELL INDUSTRIES,INC.
OWNER
Dated as of
October 2001
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM (the
"Agreement") is dated as of October 2001, by and between COUNTY OF CONTRA
COSTA, a political subdivision of the State of California("County"), and Shapell Industries,
Inc., a Delaware corporation("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the
Dougherty Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley
Specific Plan in December 1996 (as so amended, the"Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the
Board of Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24,
1994 (the "DVAHP"); and
WHEREAS, Owner is the owner of approximately 2,708 acres of land within the
Dougherty Valley(the "Shapell Property") which, under the terms of the Specific Plan, is
designated for the development of, among other things, up to 5,830 residential dwelling units
(the"Shapell Project");
WHEREAS, Owner and County are parties to those certain Development
Agreements, dated January 11, 1995 and April 8, 1996 (the "Development Agreements"), which
Development Agreements were entered into pursuant to Section 65864 et seq. of the California
Goverrmient Code, and Section 3.05 of which Development Agreements requires compliance
with the DVAHP;
WHEREAS, the Development Agreements require the development of the Shapell
Project to be undertaken in a manner consistent with the terms and provisions of, among other
things, that certain Agreement to Settlement Litigation, dated May 11, 1994, by and between
County, the City of San Ramon, the Town of Danville, Owner and the predecessor-in-interest to
Windemere BLC Land Company, LLC (the "Settlement Agreement"), which Settlement
Agreement provides (in Recital M) that the DVAHP may be amended upon the written
agreement of the County, Owner and Windemere.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend
the DVAHP as anticipated by the Settlement Agreement, and to enter into this Agreement
concurrently with County and Windemere BLC Land Company, LLC entering into a similar
agreement, in the form attached hereto as Exhibit A(the "Windemere Agreement"), to so amend
the DVAHP.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
affil housing umbrella agmt(Ver. 3)/72272/053
Section 1. Amendments of DVAHP. County may amend the
DVAHP as follows:
(a) The definition of"Moderate Income Rent"contained in Section III of the
DVAHP may be amended to read:
`Moderate Income Rent'shall mean the lesser of(1) the monthly
market rate rent; or (2) a monthly rent which is no greater than
30% of 100% of the Median Monthly Income for a one person
household, including a Utility Allowance,for studio units; a
monthly rent which is no greater than 30%of 110% of the Median
Monthly Income for a two-person household, including a Utility
Allowance,for ane-bedroom units; a monthly rent which is no
greater than 30% of 120% of the Median Monthly Income for a
three person household, including a Utility Allowance,for two-
bedroom units; and a monthly rent which is no greater than 30%
of 120% of the Median Monthly Income for a four person
household, including a Utility Allowance,for three-bedroom units.
(b) Section V(B)(2) of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following
minimum terms.-
For-sale
erms:For-sale Moderate Income Units shall be maintained as affordable
for the term governed by its subsidy source. Since the Dougherty
Valley Affordable Housing Program has been developed such that
there is no expectation of public participation (as defined below),
the Moderate Income for-sale units are not generally expected to
have an affordability term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of
thirty (30)years if the project is.subject to public participation
(which term means the provision of financial assistance in the form
of, among other things, a loan, grant, loan guarantee, or waiver of
rents/modification of development standards granted solely to
enhance the affordability of the units, etc.), and twenty (20)years
if no public participation is provided. Developers/Owners of for-
rent Moderate Income Units and specialized facilities shall enter
into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the
development.
Nothing in the foregoing shall preclude a longer term of affordability as
may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP
is hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C (LowNery Low Income), respectively.
The "Certification of Homebuyer Eligibility"form and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E, respectively, are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B, Exhibit C, Exhibit D, and
affd housing umbrella agmt(Ver. 3)/72272/053
Exhibit E are intended to be standard forms to be used by County and Owner in connection with
affordable housing projects that may be proposed within the Shapell Project. Any regulatory
agreements so entered into between County and Shapell shall be in substantially the form of one
of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income project, a
combination of these forms) subject only to those modifications that may be necessary or
appropriate to reflect the circumstances or terms of any particular affordable housing transaction.
The forms attached hereto as Exhibit D and Exhibit E may be used subject only to those
modifications that may be necessary or appropriate to reflect the circumstances or terms of any
particular affordable housing transaction.
Section 2. No Other Amendments. Except as otherwise specified herein, the
DVA1JP shall remain unchanged and a binding obligation of the parties as specified in
Section 3.05 of the Development Agreements.
Section 3. Effective Date of Agreement. This Agreement shall become effective
immediately upon the execution and delivery hereof and of the Windemere Agreement by all
parties to such agreements. This Agreement shall authorize only the amendments specified in
Section 1 above, all of which shall be adopted by the County Board of Supervisors, if at all,
concurrently with its approval of this Agreement.
Section 4. Governing Law. This Agreement shall be governed by
the laws of the State of California.
Section 5. Notices. Any notice required to be given hereunder shall be made in
writing and shall be given by personal delivery, certified or registered mail,postage prepaid,
return receipt requested,at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Mr. Chris Truebridge,Division Manager
Shapell Industries of Northern California
P.O. Box 361169
100 North Milpitas Blvd.
Milpitas, CA 95035
Attention: Chris Truebridge
With a copy to: McCutchen, Doyle, Brown & Enersen, LLP
P.O. Box V
1.333 N. California Boulevard, Suite 210
Walnut Creek, CA 94596
Attention: Cecily T. Talbert
Notice shall be deemed given three business days after the date of mailing.
affd housing umbrella agmt (Ver. 3)i72272i053
Section 6. Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable,the validity, legality and enforceability of the remaining portions hereof
shall not in any way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of County and Owner and their respective successors and assigns.
Section 8. Multiple Counterparts. This Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument, and
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, County and Owner have executed this Agreement by
duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL
By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
SHAPELL INDUSTRIES, INC., a Delaware
corporation
By: wT
Its:
By:
Its:
affd housing umbrella agmt(Ver. 3)/72272/053
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Californial
County of
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on –, before� , before me,J t��1\Ct1 � 1't�l!�SC� , IyC�►"�(Z.�� V Llf��.-lC ,I
< Dat Name and Title of Officer(e.g..•Ja a Doe,Notary Public') '
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personally appeared cb (Z�S
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Name(s)of Signer(s) 1
' personally known to me
❑ proved to me on the basis of satisfactory
evidence I
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 I
Ifi capacity(ies), and that by his/her/their
` JANICE T.KRUSE signature(s) on the instrument the person(s), or
Commission 1318697 the entity upon behalf of which the person(s)
-- Notary Public-California acted, executed the instrument. ,
W Santa Clare County
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MrComm. ,tnrsAug 2a,2oas WITNESS my hand and official seal.
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�f Place Notary Seal Above Signature of Notary Public 1
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AL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: 1't92e���'N� U J 1 m�lUti7 A �� � N� i'^�� �� •I� �`'4r'�
1-,
Document Date: if f– � -E�_c�. Number of Pages: '
Signer(s)Other Than Named Above:
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<� Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual '
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I ❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited ❑ General ,
❑ Attorney in Fact
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❑ Guardian or Conservator ;
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0 1999 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.nationainot'ry.org Prod.No.5907 Reorder:Call Toll-Free 1-800.876.6827
EXHIBIT A
WINDEMERE AGREEMENT
See Attachment E-2 for this Agreement.
A-1
we-60261
EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOWNERY LONV)
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORM
For reproduction purposes the above exhibits have not been.reproduced.
They are attached to this October 16 Board Order as (Attachment A-2,
A-11 B, and C respectively)
EXHIBIT E-2
Agreement to Amend Affordable Housing Program (Windemere BLC)
WAPersonaftBOARDORD ERS\10.2.0 Ldoughertyvalley
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
WINDEMERE BLC LAND COMPANY, LLC
OWNER
Dated as of
October 2001
we-60261
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM(the"Agreement")
is dated as of October , 2001,by and between COUNTY OF CONTRA COSTA,a political
subdivision of the State of California("County"), and Windemere BLC Land Company,LLC,a
California limited liability company("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty Valley
Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in December 1996
(as so amended,the"Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income community in
the Dougherty Valley in order to promote a jobs-housing balance and address affordable housing needs
set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals,the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994(the
"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2379 acres of land within the Dougherty
Valley(the"Windemere Property")which,under the terms of the Specific Plan,is designated for the
development of, among other things,up to 5,170 residential dwelling units (the Windemere Project");
WHEREAS, Owner and County are parties to that certain Development Agreement, dated
January 18, 1996(the"Development Agreement"),which Development Agreement was entered into
pursuant to Section 65864 et seq. of the California Government Code, and Section 3.05 of which
Development Agreement requires compliance with the DVAHP;
WHEREAS, the Development Agreement requires the development of the Windemere Project to
be undertaken in a manner consistent with the terms and provisions of, among other things, that certain
Agreement to Settlement Litigation, dated May 11, 1994,by and between County,the City of San
Ramon,the Town of Danville,Owner's predecessor-in-interest and Shapell Industries,Inc. (the
"Settlement Agreement"),which Settlement Agreement provides(in Recital M)that the DVAHP may be
amended upon the written agreement of the County,Owner and Shapell.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend the DVAHP as
anticipated by the Settlement Agreement, and to enter into this Agreement concurrently with County and
Shapell entering into a similar agreement, in the form attached hereto as Exhibit A(the"Shapell
Agreement"),to so amend the DVAHP.
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein, and other good and valuable consideration,the receipt and sufficiency of which hereby are
acknowledged,the County and the Owner hereby agree as follows:
Section 1. Amendments of DVAHP. County may amend the DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
'Moderate Income Rent'shall mean the lesser of(1) the monthly market rate rent; or
(2)a monthly rent which is no greater than 30%of 100%of the Median Monthly Income for a
one person household, including a Utility Allowance,for studio units;a monthly rent which is no
greater than 30%of 110%of the Median Monthly Income for a two person household, including
a Utility Allowance,for one-bedroom units;a monthly rent which is no greater than 30%of
we-60261
120%of the Median Monthly Income for a three person household, including a Utility
Allowance,for two-bedroom units; and a monthly rent which is no greater than 30%of 120%of
the Median Monthly Income for a four person household, including a Utility Allowance,for
three-bedroom units.
(b) Section V(B)(2)of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following minimum
terms:
(i) For-sale Moderate Income Units shall be maintained as affordable for
the term governed by its subsidy source. Since the Dougherty Valley
Affordable Housing Program has been developed such that there is no
expectation of public participation (as defined below), the Moderate
Income for-sale units are not generally expected to have an affordability
term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of thirty
(30)years if the project is subject to public participation (which term
means the provision of financial assistance in the form-of, among other
things, a loan,grant, loan guarantee, or waiver of rents/modification of
development standards granted solely to enhance the affordability of the
units, etc), and twenty(20)years if no public participation is provided.
Developers/Owners offor-rent Moderate Income Units and specialized
facilities shall enter into a RegulatoryAgreement(form to be provided
by the County)prior to the issuance of any building permit required for
the development.
Nothing in the foregoing shall prelude a longer term of
affordability as may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP is
hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B(Moderate Income)and Exhibit C(LowNery Low Income),respectively.
The"Certs ic'�`atio of Homebuyer Eligibility" orm and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E,respectively,are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B,Exhibit C,Exhibit D and
Exhibit E are intended to be standard forms to be used by County an w�connection with
a o�`f rUabTe housing projects that may be proposed within the Windemere Project. Any regulatory
agreements entered into between County and Windemere shall be in substantially the form of
one of Exhibit B or Exhibit C (or,in the case of a combined moderate/low/very low income
project, a com enation of t ese forms), subject only to those modifications that may be necessary
or appropriate to reflect the circumstances or terms of any particular affordable housing
transaction. The forms attached hereto as Exhibit D and Exhibit E may be used subject only to
those modifications that may be necessary or appropriate to refect the circumstances or terms of
any particular affordable housing transaction
Section 2. No Other Amendments. Except as otherwise specified herein,the DVAHP shall
remain unchanged and a binding obligation of the parties as specified in Section 3.05 of the Development
Agreement.
Section 3. Effective Date of A •eement. This Agreement shall become effective immediately
upon the execution an e ivery ot this Agreement and of the Shapell Agreement by all parties to such
agreements. This Agreement shall authorize only the amendments specified in Section 1 above, all of
which shall be adopted by the County Board of Supervisors, if at all, concurrently with its approval of
this Agreement.
2
we-60261
Section 4. Governing Law. This Agreement shall be governed by the laws of the State of
California.
Section 5. Notices. Any notice required to be given hereunder shall be made in writing and shall
be given by persona e every,certified or registered mail,postage prepaid,return receipt requested,at
the addresses specified below,or at such other addresses as may be specified in writing by the parties
hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4t'Floor,North Wing
Martinez, California 94553-0095
Attention:Deputy Director-Redevelopment
Owner: Windemere BLC Land Company, LLC
3130 Crow Canyon Place, Suite 310
San Ramon, California 94583
Attention: Pete Petersen
With a copy to: R. Clark Morrison
Morrison&Foerster LLP .
101 Ygnacio Valley Road
Suite 450
Walnut Creek, CA 94596
Notice shall be deemed given three business days after the date of mailing.
Section 6. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable,the va 12ity,legality and enforceability of the remaining portions hereof shall not in any
way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of County and Owner an t eir respective successors and assigns.
Section 8. Multiple Counter arts. This Agreement may be simultaneously executed in multiple
counterparts,all of w ish shall constitute one and the same instrument,and each of which shall be
deemed to be an original.
3
we-60261
IN WITNESS WHEREOF, County and Owner have executed this Agreement by duly authorized
representatives,all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
WINDEMERE BLC LAND COMPANY LLC, a
California limited liability company
By: Brookfield Bay Area Holdings LLC,
a Delaware limited liability ompany
Member
By:
Its:
By:
Its: IP hFe
By: Centex Homes,
a Nevada general partnership
Member
By: Centex Real Estate Corporation,
a Nevada general partnership
Managing General Partner
By
Davi Barclay
Division President
By: LEN-OBS Windemere,LLC,
a Delaware limited liability company
Member
By: Lennar Homes of California, Inc.,
a California corporation
Managing Member
01
By:
Greg McWilliams
Vice President
4
we-60261
EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOW/VERY LOW)
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORM
For reproduction purposes the above exhibits have not been reproduced.
They are attached to this October 16 Board Order as (Attachment A-2,
A-1, B, and C respectively)
EXHIBIT A
SHAPELL AGREEMENT
See Attachment E-1 for this Agreement
A-1
we-60261
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
By and Between
COUNTY" OF CONTRA COSTA
and
SHAPELL INDUSTRIES, INC.
OWNER
Dated as of
October,& 2001
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM (the
"Agreement") is dated as of October/, 2001, by and between COUNTY OF CONTRA
COSTA, a political subdivision of the State of California("County"), and Shapell Industries,
Inc., a Delaware corporation ("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the
Dougherty Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley
Specific Plan in December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the
Board of Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24,
1994 (the "DVAHP"); and
WHEREAS, Owner is the owner of approximately 2,708 acres of land within the
Dougherty Valley(the"Shapell Property") which, under the terms of the Specific Plan, is
designated for the development of, among other things, up to 5,830 residential dwelling units
(the"Shapell Project");
WHEREAS, Owner and County are parties to those certain Development
Agreements, dated January 11, 1995 and April 8, 1996 (the "Development Agreements"), which
Development Agreements were entered into pursuant to Section 65864 et seq. of the California
Government Code, and Section 3.05 of which Development Agreements requires compliance
with the DVAHP;
WHEREAS, the Development Agreements require the development of the Shapell
Project to be undertaken in a manner consistent with the terms and provisions of, among other
things, that certain Agreement to Settlement Litigation, dated May 11, 1994, by and between
County, the City of San Ramon, the Town of Danville, Owner and the predecessor-in-interest to
Windemere BLC Land Company, LLC (the "Settlement Agreement"), which Settlement
Agreement provides (in Recital M) that the DVAHP may be amended upon the written
agreement of the County, Owner and Windemere.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend
the DVAHP as anticipated by the Settlement Agreement, and to enter into this Agreement
concurrently with County and Windemere BLC Land Company, LLC entering into a similar
agreement, in the form attached hereto as Exhibit (the"Windemere Agreement"), to so amend
the DVAHP.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
affd housing umbrella agmt(Ver. 3)/72272/053
Section 1. Amendments of DVAHP. County may amend the
DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
`Moderate Income Rent'shall mean the lesser of(1) the monthly
market rate rent; or (2) a monthly rent which is no greater than
30% of 100% of the Media: iWonthly Income for a one person
household, including a Utility Allowance,for studio units; a
monthly rent which is no greater than 30% of 110% of the Median
Monthly Income for a two-person household, including a Utility
Allowance,for one-bedroom units; a monthly rent which is no
greater than 30% of 120% of the'vIedian Monthly Income for a
three person household, including a Utility Allowance,for two-
bedroom units; and a monthly rent which is no greater than 30%
of 120%of the Median Mond*Income for a four person
household, including a Utility Allowance,for three-bedroom units.
(b) Section V(B)(2) of the DV AHP may be amended to read:
Moderate Income Units shall be maintained as such for the following
minimum terms.-
(i)
erms:(i) For-sale ll1ioderate Income Units shall be maintained as affordable
for the term governed by its subsidy source. Since the Dougherty
Valley Affordable Housing Program has been developed such that
there is no expectation of public participation (as defined below),
the Moderate Income for-sale units are not generally expected to
have an affordability• term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of
thirty (30)years if the project is subject to public participation
(which term means the provision of financial assistance in the form
Of, among other things, a loan, grant, loan guarantee, or waiver of
rents/modification of development standards granted solely to
enhance the affordability of the units, etc.), and twenty (20)years
if no public participation is provided. Developers/Owners of for-
rent Moderate Income Units and specialized facilities shall enter
into a Regulatory Agreement(form to be provided by the County),
prior to the issuance of any building permit required for the
development.
Nothing in the foregoing shall preclude a longer term of affordability as
may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP
is hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C (LowNery Low Income), respectively.
The "Certification of Homebuyer Eligibility" form and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E, respectively, are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B, Exhibit C, Exhibit D, and
affd housing umbrella agmt(Ver. 3)i72272i053
Exhibit E are intended to be standard forms to be used by County and Owner in connection with
affordable housing projects that may be proposed within the Shapell Project. Any regulatory
agreements so entered into between County and Shapell shall be in substantially the form of one
of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income project, a
combination of these forms) subject only to those modifications that may be necessary or
appropriate to reflect the circumstances or terms of any particular affordable housing transaction.
The forms attached hereto as Exhibit D and Exhibit E may be used subject only to those
modifications that may be necessary or appropriate to reflect the circumstances or terms of any
particular affordable housing transaction.
Section 2. No Other Amendments. Except as otherwise specified herein, the
DVAHP shall remain unchanged and a binding obligation of the parties as specified in
Section 3.05 of the Development Agreements.
Section 3. Effective Date of Agreement. This Agreement shall become effective
immediately upon the execution and delivery hereof and of the Windemere Agreement by all
parties to such agreements. This Agreement shall authorize only the amendments specified in
Section 1 above, all of which shall be adopted by the County Board of Supervisors, if at all,
concurrently with its approval of this Agreement.
Section 4. Governing Law. This Agreement shall be governed by
the laws of the State of California.
Section 5. Notices. Any notice required to be given hereunder shall be made in
writing and shall be given by personal delivery, certified or registered mail, postage prepaid,
return receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4`h Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Mr. Chris Truebridge, Division Manager
Shapell Industries of Northern California
P.O. Box 361169
100 North Milpitas Blvd.
Milpitas, CA 95035
Attention: Chris Truebridge
With a copy to: McCutchen, Doyle, Brown & Enersen, LLP
P.O. Box V
1333 N. California Boulevard, Suite 210
Walnut Creek, CA 94596
Attention: Cecily T. Talbert
Notice shall be deemed given three business days after the date of mailing.
affd housing umbrella agmt(Ver. 3)n2272i053
Section 6. Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof
shall not in any way be affected or impaired thereby.
Section 7. Successors and Assi,s. This Agreement shall be binding upon and
inure to the benefit of County and Owner and their respective successors and assigns.
Section 8. Multiple Counterparts. This Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument, and
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, County and Owner have executed this Agreement by
duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL
By:_
It Chair,X and'of Suv rvisors
ahn derson
Its: Assistant County Counsel
SHAPELL INDUSTRIES, INC., a Delaware
corporation
By: F/�i
Its:
By:
Its:
affd housing umbrella agmt(Ver. 3)/72272/053
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
I .I
State of California
ss.
County of
I ••1
I T I
On O 1 , before me, \CC�� �RI�S� "I gLl NVaLic ,
I;
Dat6
•—��, Name and Title of Officer(e.g.."Jane Doe,Notary Public")
personally appeared C- (2�S 1gCU.e�3P.\�&e oa MAr-\e
Name(s)of Signer(s)
personally known to me
❑ proved to me on the basis of satisfactory
evidence
I .I
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
JANICE T.KRUSE signature(s) on the instrument the person(s), or '
i, Commission;!1318897 the entity upon behalf of which the person(s)
i Notary Public-California acted, executed the instrument.
Santa Clara County
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affd housing umbrella agmt(Ver. 3)/72272/053
E,IIBIT A
WINDEMERE AGREEMENT
affd housing umbrella agmt (Ver. 3)/72272/053
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
WINDEMERE BLC LAND COMPANY,LLC
OWNER
Dated as of
October_, 2001
we-60261
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM(the"Agreement")
is dated as of October_, 2001,by and between COUNTY OF CONTRA COSTA, a political
subdivision of the State of California("County"), and Windemere BLC Land Company, LLC, a
California limited liability company("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty Valley
Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in December 1996
(as so amended,the"Specific Plan");
WHEREAS,the Specific Plan provides for the development of a mixed income community in
the Dougherty Valley in order to promote a jobs-housing balance and address affordable housing needs
set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals,the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994 (the
"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2379 acres of land within the Dougherty
Valley(the "Windemere Property")which, under the terms of the Specific Plan, is designated for the
development of,among other things,up to 5,170 residential dwelling units(the Windemere Project");
WHEREAS, Owner and County are parties to that certain Development Agreement, dated
January 18, 1996(the"Development Agreement"),which Development Agreement was entered into
pursuant to Section 65864 et seq. of the California Government Code, and Section 3.05 of which
Development Agreement requires compliance with the DVAHP;
WHEREAS,the Development Agreement requires the development of the Windemere Project to
be undertaken in a manner consistent with the terms and provisions of, among other things, that certain
Agreement to Settlement Litigation, dated May 11, 1994, by and between County, the City of San
Ramon,the Town of Danville, Owner's predecessor-in-interest and Shapell Industries, Inc. (the
"Settlement Agreement"), which Settlement Agreement provides(in Recital M) that the DVAHP may be
amended upon the written agreement of the County, Owner and Shapell.
WHEREAS,County and Owner desire pursuant to this Agreement to so amend the DVAHP as
anticipated by the Settlement Agreement, and to enter into this Agreement concurrently with County and
Shapell entering into a similar agreement, in the form attached hereto as Exhibit A(the "Shapell
Agreement"),to so amend the DVAHP.
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein,and other good and valuable consideration,the receipt and sufficiency of which hereby are
acknowledged,the County and the Owner hereby agree as follows:
Section 1. Amendments of DVAHP. County may amend the DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
'Moderate Income Rent'shall mean the lesser of(1) the monthly market rate rent; or
(2) a monthly rent which is no greater than 30%of 100%of the Median Monthly Income for a
one person household, including a Utility Allowance,for studio units; a monthly rent which is no
greater than 30%of 110%of the Median Monthly Income for a two person household, including
a Utility Allowance,for one-bedroom units; a monthly rent which is no greater than 30%of
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120%of the Median Monthly Income for a three person household, including a Utility
Allowance,for two-bedroom units; and a monthly rent which is no greater than 30%of 120%of
the Median Monthly Income for a four person household, including a Utility Allowance,for
three-bedroom units.
(b) Section V(B)(2)of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following minimum
terms:
(i) For-sale Moderate Income Units shall be maintained as affordable for
the term governed by its subsidy source. Since the Dougherty Valley
Affordable Housing Program has been developed such that there is no
expectation of public participation (as defined below), the Moderate
Income for-sale units are not generally expected to have an affordability
term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of thirty
(30)years if the project is subject to public participation (which term
means the provision of financial assistance in the form of, among other
things, a loan, grant, loan guarantee, or waiver of rents/modification of
development standards granted solely to enhance the affordability of the
units, etc), and twenty(20)years if no public participation is provided.
Developers/Owners offor-rent Moderate Income Units and specialized
facilities shall enter into a Regulatory Agreement(form to be provided
by the County)prior to the issuance of any building permit required for
the development.
Nothing in the foregoing shall prelude a longer term of
affordability as may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP is
hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C(LowNery Low Income), respectively.
The"Certi ick ation of Homebuyer Eligibility" orm and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E,respectively, are hereby added as exhibits to the DVAHP and shall be
used requued thereby. The forms attached hereto as Exhibit B, Exhibit C, Exhibit D and
Exhibit E are intended to be standard forms to be used by Count�Owner in connection with
a oar ale housing projects that may be proposed within the Windemere Project. Any regulatory
agreements entered into between County and Windemere shall be in substantially the form of
one of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income
project,a com mationno terse forms), subject only to those modifications that may be necessary
or appropriate to reflect the circumstances or terms of any particular affordable housing
transaction. The forms attached hereto as Exhibit D and Exhibit E may be used subject only to
those modifications that may be necessaryor appropriateto rhe sect the circumstances or terms of
any particular affordable housing transaction
Section 2. No Other Amendments. Except as otherwise specified herein,the DVAHP shall
remain unchanged and a binding obligation of the parties as specified in Section 3.05 of the Development
Agreement.
Section 3. Effective Date of Agreement. This Agreement shall become effective immediately
upon the execution and delivery of this Agreement and of the Shapell Agreement by all parties to such
agreements. This Agreement shall authorize only the amendments specified in Section 1 above,all of
which shall be adopted by the County Board of Supervisors, if at all, concurrently with its approval of
this Agreement.
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we-60261
Section 4. Governing Law. This Agreement shall be governed by the laws of the State of
California.
Section 5. Notices. Any notice required to be given hereunder shall be made in writing and shall
be given by personae 'ivery, certified or registered mail, postage prepaid, return receipt requested, at
the addresses specified below, or at such other addresses as may be specified in writing by the parties
hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor,North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Windemere BLC Land Company, LLC
3130 Crow Canyon Place, Suite 310
San Ramon, California 94583
Attention: Pete Petersen
With a copy to: R. Clark Morrison
Morrison&Foerster LLP
101 Ygnacio Valley Road
Suite 450
Walnut Creek,CA 94596
Notice shall be deemed given three business days after the date of mailing.
Section 6. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the va i ity, legality and enforceability of the remaining portions hereof shall not in any
way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of County and Owner an ter respective successors and assigns.
Section 8. Multiple Countearts. This Agreement may be simultaneously executed in multiple
counterparts,all of which shall constitute one and the same instrument,and each of which shall be
deemed to be an original.
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IN WITNESS WHEREOF, County and Owner have executed this Agreement by duly authorized
representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
WINDEMERE BLC LAND COMPANY LLC, a
California limited liability company
By: Brookfield Bay Area Holdings LLC,
a Delaware limited liabilit ompany
Member
By: 9,- ,\'\�-
Its:
By: �41kU.4
Its: V 1 jr;'o
By: Centex Homes,
a Nevada general partnership
Member
By: Centex Real Estate Corporation,
a Nevada general partnership
Managing General Partner
By:
Davi Barclay
Division President
By: LEN-OBS Windemere,LLC,
a Delaware limited liability company
Member
By: Lennar Homes of California,Inc.,
a California corporation
Manmgc
By: am5
Vice President
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EXHIBIT B
REGULATORY AGREEMENT
(MODERATE INCOME—RENTAL PROJECT)
affd housing umbrella agmt(Ver. 3)n2272i053
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651.Pine Street,41h Floor,North Wing
Martinez,CA 94553
A".rm Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[MODERATE INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
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TABLE OF CONTENTS
Section.1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition, Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Prope.rty. ...........................................................................................4
Section 4. Moderate Income Households/Rents. ..........................................................................5
Section 5. Indenu-iiEicat.ion.................................................................................................................8
Section6. Consideration....................................................................................................................8
Section7. Reliance..............................................................................................................................8
Section 8. Sale or Transfer of the Project.........................................................................................9
Section9. Term....................:...............................................................................................................9
Section 10. Covenants to Rtm With the Land.................................................................................9
Section 11. Burden and Benefit.......................................................................................................10
Section 1.2. Un.ifornuty;Common Plan..........................................................................................1.0
Section13. Enforcement...................................................................................................................10
Section 14. Recording and Filing....................................................................................................11
Section15. Payment of Fees............................................................................................................11
Section16. Governing Law. ............................................................................................................11
Section17. Amendments.................................................................................................................11
Section1.8. Notice..............................................................................................................................11
Section19. Severability....................................................................................................................1.2
Section 20. Multiple Counterparts. ................................................................................................12
EXHIBIT A-DESCRIPTION OF PROJECT SITE
EXHIBIT 6-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATION OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement") is dated as of October 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Phan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Douglterhj Valley Affordable Housing Program on March 24, 1994, and
amended such program on _ 2001. (as so amended, the "DVAHP"); and
WHEREAS, on 2001, County and Owner entered into that certain
Agreement to Amend Affordable Housing Program,pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board. of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and,under the terms of Owner's
Development Agreement with County,is entitled to develop, among other things, up to
dwelling units on the Property in accordance with the Specific Plan and
subject to the terms and provisions of, among other things, that certain May 11, 1994 Agreement
to Settle Litigation between the County, the Town of Danville, the City of San Ramon, Shapell
Industries, Inc. and Windermere Ranch Partners, which Settlement Agreement.imposes certain
conditions to the development of more than 8500 dwelling units within the Dougherty Valley
(the Project");
WHEREAS, in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
Project-(the "Tentative Map") and, on . 2001, approved a final
subdivision snap (the "Final Map"), which Final Map has been recorded in the Official Records
wc-59065
of Contra Costa County and which creates certain parcels within"Area A" as shown on the
Tentative Map for the construction of rental units;
WHEREAS, Parcel^as shown on the Final Map is a -acre parcel upon which
Owner intends to construct_rental units to be rented to moderate income households as
more fully provided below (collectively, the "Moderate Income Units").
NOW,THEREFORE,u1 consideration of the mutual covenants and undertakings set
forth herein, and odler good and valuable consideration, the receipt and sufficiencyof which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
ineanings given to such terms herein. The following terms shall have the respective meanings
assigned to then in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person(together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units"means any one or more of the units reserved for occupancy by Very
Low, Low, and Moderate Income Households on the Property. The Dougherty
Valley Specific Plan requires that 25% of the units on the Property be Affordable
Units.
"Asea" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Contl)1ia11ce" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Corttpletion Certificate" means the certificate of completion of the construction of the
Project"required to be delivered to the County, pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the Mutual agreement of the parties on 2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
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"Median Income" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Deparhnent of Housing and Community
Development pursuant to Health &Safety Code Sections 50079.5 and 50105.
"Median Monthly hicorne" means 1/12 of the Median Income.
"Moderate Incorne Hottseholds" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Iousing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Modern te Income Rent" means the lesser of. (1) the monthly market rate rent; or (2) for
studio units, a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income, including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance; for
two-bedroom urdts, a monthly rent which is no greater than 30% of 1.20% of the Median
Monthly Income, including a Utility Allowance; and for three-bedroom units, a montlnhy rent
which is no greater than 30% of 120% of the Median Monthly Income,including a Utility
Allowance. Rents for studio units shall.be calculated utilizing the one-person Median Income
Household income; one-bedroom units shall use 110% of two-person Median.Income
Household income; two-bedroom units shall use 120% of a thee-person Median Income
Household income, etc.
"Moderate Incorne Units" means the rental units to be constructed by Owner on the
Project Site and.rented to, or held available for occupancy by, Moderate Income Households.
"Oulner" means and its successors and assigns, as owner of the
Project Site.
"Project" means the Moderate Income Units to be constructed by Owner on the
Project Site.
"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with., such buildings, structures and other improvements constituting the
Project.
"Project State" means Parcel_ _as shown on the Final Map and more fully described on
Exhibit A,which is attached hereto and by this reference incorporated herein.
"Qualified Project Period"means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is twenty (20) years after the
date on which at least-fifty percent(50%) of the dwelling units in the Project were first
occupied. j20-year Qualifr.ed Project Period Assumes no public participation as defined in revised
D VAHP.]
"Regulatory Agreernent" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
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"Utility AROWance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and.approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine, feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa,when appropriate.Thus Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition, Cons huction, Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as.follows:
(a) Subject to market conditions, Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
(b) The Owner reasonably expects to complete the construction of the Project
by 200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct-.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not lake or omit to take, as applicable, any action if such
action or omission would.in any way cause the project to be developed in a maiuier
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement in the form attached as Exhibit D.
Section 3. Residential Rental Property. Owner.hereby agrees that the Project will be
owned,managed and operated as a residential rental project for a term equal to the Qualified
Project Period. To that end, and for the term of the Qualified Project Period,the Owner hereby
represents,covenants,warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Moderate Income Households, and the Owner will own,
manage and operate the Project-as a project to provide multifamily residential rental
property to Moderate Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate mid distinct
facilities for living, sleeping, eating,cooking and sanitation for a single person or a
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farni.ly, including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink.
(c) Owner shall include, in any and all rental agreements, provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel, motel, dormitory,fraternity house, sorority house,rooming house,nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Moderate Income Households.
(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road,street or stream, and all.of the Project Facilities comprise
a single geographically and functionally integrated project for residential rental
property, as evidenced by the ownership, management, accounting and operation of the
Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided, however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents, contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bed.roonls available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units. [For mixed-
incoine projects only.]
(i) During the Qualified Project Period,Owner will not discriminate on'the
basis of race, creed, color, sex, sexual orientation,national origin or ancestry, religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental,use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into.for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. Moderate Income Households/Rents. Owner hereby represents,warrants
and covenants as follows:
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(a) Commencing on the Completion Date,Moderate Income Households
shall occupy percent(_%) of all completed and occupied units in the
Project; and for the Qualified Project Period no less than�% of the total number of
completed units of the Project shall at all times be rented to and occupied by Moderate
Income Iouseholds. For the purposes of this paragraph (a), a vacant unit which was
most recently occupied by a Moderate Income Household is treated as rented and
occupied by a Moderate Income Household until reoccupied. Tenants in the Moderate
I.icome Units will have equal access and enjoyment to all common facilities of the
Project.
(b) The rents for the Moderate Income Units shall not exceed the Moderate
Income Rent.
(c) No tenant qualifying as a Moderate Income Household shall be denied
continued occupancy of a unit-in the Project because, after admission, such tenant's
Adjusted Income increases to exceed the qualifying limit for Moderate Income
Households.
(d) The Owner will obtain, complete, and maintain on file Income
Certifications from each Moderate Income Household in the form attached.hereto as
Exhibit.C, dated.no more than thirty (30) days prior to the initial occupancy of such
Moderate Income Household in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner shall make a good faith effort to verify that the
income provided by an applicant in an Income Certification is accurate by taking one or
more of the following steps as a part of the verification process: (1) obtain a pay stub for
the most recent three months, (2) obtain an income tax return for the most recent tax
year, (3) conduct a TRW Credit Bureau or other similar search, (4) obtain an income
verification from the applicant's current employer, (5) obtain an income verification
from the Social Security Administration and/or the California Department of Social
Services if the applicant receives assistance from either of such agencies, or (6) if the
applicant is unemployed and does not have zm income tax return, obtain another form
of independent verification. 'l.1e Owner shall also engage in a review of bank
statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
Moderate Income Units, and will permit any duly authorized representative of the
County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the Moderate Income Units.
(f) 'I71e Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,by Moderate Income
6
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Households during such period; (ii) that either (A) no unremedied default has occurred
under this Regulatory Agreement or (13) a default has occurred, in which event the
certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a Moderate Income Unit
shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the Moderate Income Household
in determining qualification for occupancy of the Moderate Income Unit, and that any
material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease or rental agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability].Hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period, Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
Moderate Income Unit at the date of expiation or termination, and at a rent not greater
than the amount set forth in Section 4 (b),until the earliest of any of the following
occurs: (1) the household's income exceeds 140 percent of the maximum eligible income
for Moderate Income Households; (2) the household voluntarily moves or is evicted for
"good cause" ("good cause" for the purposes of this subsection, means the nonpayment
of rent or facts necessary to prove major, or repeated minor, violations of material
provisions of the occupancy agreement which detrimentally affect the health and safety
of other persons or the structure, the fiscal integrity of the Project, or the purposes or
special programs of the Project); (3) two years after the expiration of the Qualified
Project Period; or (4) Owner pays the relocation assistance and benefits to tenants as
provided in subdivision (b) of Section 7264 of the Government Code. During the three
years prior to expiration of the Qualified Project Period, Owner shall continue to make
available to eligible households Moderate Income Units that have been vacated to the
same extent that nonreserved units are made available to noneligible households.
(1) All tenant lists, applications and waiting lists relating to the Project shall
at all limes be kept separate and identifiable from.any other business of the Owner and
7
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shall be maintained as required by the County,in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(nn) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Iousing Act-household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing,but(i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local, state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify,
defend and hold harmless the County and its officers, directors, officials, employees and agents
from and against any and all claims made by any person (including claims for reasonable
attorneys' fees and costs) arising from any act or omission of the Owner or any of its agents,
contractors, servants, employees or licensees in coruiection with the design, construction,
installation, operation,use, occupancy,maintenance, or ownership of the Project (including any
failure to comply with laws, ordinances, rules or regulations of public authorities relating
thereto or the terms and provisions of this Agreement);except to the extent any such claim
arises from the sole negligence of the County. In the event that any such claim,action or
proceeding is brought against the.Cou my or any of its officers, directors, officials, employees or
agents,with respect to which inderimity may be sought hereunder, the Owner, upon written
notice from County, shall assume the investigation and defense thereof,including the
employment of counsel and the payment of all expenses. County shall have the right to employ
separate counsel in any such action or proceedings and to participate in the defense thereof,
and Owner shall pay the reasonable fees and expenses of such separate counsel;provided that
County shall have the right to review and reasonably approve or disapprove any compromise
or settlement.The provisions of this Section 5 shall survive the term of this Regulatory
Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose, arnong others, of inducing Owner to develop the Project Site and,construct, equip
and operate the Project with Moderate Income Units. In consideration of these development
approvals by the County, the Owner has entered into this Regulatory Agreement and has
agreed to restrict the uses to which this Project can be put on the terms and conditions set forth
herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
.interested.in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of the Moderate Income Households and upon audits of
the books and records of the Owner pertaining to the Project. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, the
County may conduct any investigation into or review of the operations or.records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
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respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for.i.rldividual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent-of
County),without obtaining the prior written consent of the County, which consent of the
Comity shall be given upon receipt by the County of(i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreernerht are binding on the transferee), and (ii.) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience vh the
ownership, operation and management of large mixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable,financially and otherwise, of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of tlhis Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement-.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end.of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof; provided, however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement.The County and the Owner hereby declare their express intent that the
covenants,reservations and restrictions set forth herein shall be covenants ruruhing with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however, that on the termination of this Regulatory Agreement said covenants,reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants,reservations and
restrictions,regardless of whether such covenants,reservations and restrictions are set forth in
such contract, Gleed or other instruments.
9
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by Moderate Income Tenants,the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the public purposes for which the project was
approved.
Section 12. Uniformity;Common Plan..The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a corm-non
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default-remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an ":Event of Default" to have
occurred hereunder, provided, however, that if the default stated in the notice is of such.a
nature shat it carmot be corrected within 60 days, such default shall not constitute an Event of
Default.hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event-of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project;and
(iii.) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner]hereunder.
The Owner hereby grants to the County the option,upon the expiration of 60 days after
the giving of the notice to Owner of the Owner's default under this Regulatory Agreement,
until the expiration of the Qualified Project Period or the termination of this Regulatory
Agreement, whichever first occurs, to lease up to percent(_%) of the units in the
Project for a rental of$1.00 per unit per year for the purpose of subleasing such units to
Moderate Income Households, but only to the extent necessary to comply with the provisions
of Section 3 and Section 4.The option granted in the preceding sentence shall be effective only
if the Owner has not instituted corrective action within such 60-day period. Upon the
achievement, by the Owner or the County, of compliance with the requirements of Section 3
and Section 4, County and Owner will. terminate any leases entered into between Owner and
County pursuant to the option provided herein and County shall assign to Owner any
subleases entered:into by County hereunder. In the event County exercises its option
hereunder, the County shall make diligent effort to sublease Moderate Income Units to
Moderate Income Households for monthly rental amounts equivalent to those collected from
10
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tenants of similar units in the Project but,provided County exercises such diligent efforts, shall
not be required to obtain such rental amounts. Any rental paid under any such sublease shall
be paid to the Owner after County has been reimbursed for any expenses incurred in
connection with such sublease. All fees, costs and expenses of the County incurred in taking
any action pursuant to this Section shall be the sole responsibility of the Owner. The Owner
hereby agrees that specific enforcement of the Owner's agreements contained herein is the only
means by which the County may obtain the benefits of such agreements made by the Owner
herein and the Owner therefore agrees to the imposition of the remedy of specific performance
against it in the case of any default by the Owner hereunder. The remedies set forth in this
Section 13 shall be County's exclusive remedies for violations of this Agreement.
Section 14. Recording and riling. The Owner shall cause this Regulatory Agreement
and all amendments and.supplements hereto and thereto,to be recorded and filed in the real
properly.records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal to the greater of(i) $5000/year; or (ii) $75.00/Moderate Income
Unit/year, payable in advance in annual installments corrunencing on and
continuing on each thereafter, until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments. This Regulatory Agreement shall be amended only by a
written instrument executed by the parties hereto or thea successors in title, and duly recorded
in the real property records of. the County of Contra Costa,California. The parties requesting
such amendment-shall notify the other parties to this Regulatory Agreement of the proposed
amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery, certified or registered mail, postage prepaid,return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pune Street
41h Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
With a copy to:
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Notice shall be deemed given tluee business days after the date of mailing.
Section 1.9. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
12
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
13
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State of California )
) ss
County of )
On before me, ,Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS.my hand and official seal.
Signature (Seal)
ivc-59065
State of California )
ss
Comity of )
On before me, ,Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income Households:
units are occupied.by households with children;and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low, Low, Moderate] Income Households who terminated their
rental agreements during the previous twelve (7.2) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Iouseholds
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom. [Very Low, Low, Moderate] Income Units is
6. The number of one-bedroom[Very Low, Low, Moderate] Income Units is
Owner:
By:
Its:
B-1
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EXHIBIT C
CERTIFICATION OF IIOUSEHOLD ELIGIBILITY
RE: [name and address of. Project-]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
:Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn, state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
J.. 2. 3. 4. 5.
Naive of Members Relationship Social
of the to Head of Security Place of
IIouseh.old Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons first occupy the apartment-or
sign a lease with respect to the apartment, including income described in (a) below, but
excluding all income described in (b)below,is$
(a) The arnount set forth above includes all of the following income (unless
such income is described in (b) below):
(i) all wages and salaries, over-time pay, commissions,fees, tips and
bonuses and other compensation for personal services, before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without dedu.ctilg expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. include any withdrawal of cash or assets from the operation of a.
C-1
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business or profession, except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and include any withdrawal of cash or assets.from an
investment,except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full arnotmt of periodic payments received from social
security, aivluities,insurance policies,retirement funds,pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation, workers' compensation and severance pay;
'(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject-to
adjushsrent by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities,plus (b)
the rnaximurn amount that the welfare assistance agency could in fact-allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child.
support-payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The follow.hig income is excluded from the amount set forth above:
(i) Income from employment of children(including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation),capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees, books, equipment, materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed .
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Al-tain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment, clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of:1937.
7. If any of the persons described in column 1 above (or any person whose income
or coil tribulions were included in item 6) has any savings, stocks,bonds, equity in real property
or other form of capital investment(excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor),provide:
(a) the total value of all such assets owned by all such persons: $ , and
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject-
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
]:-lead of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household u16 above: $
(I3) If the amount entered in 7(a) above is greater than S5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(i.ii) lune (i) minus line (ii) is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Lune I(A) plus line. I(B)(iii)): $
1.1. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, "120%] of Median Income
for the Area with adju.stinents for smaller and larger families.*
Yes No
(13) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
IIl. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as ,individuals or a fancily of [Very Low, Low, Moderate]
income.
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IV. Number of apartment unit assigned:
(enter here and on pale one)
Owner
* "Median Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Corrununity
Development pursuant to Health &Safety Code Sections 50079.5 and 50105.
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
i_n the Project (i) are occupied by [Very Low, Low,Moderate] Tncome Households (as such term
is defined.in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so field continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low, Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
D-].
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EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
E-1
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EXHIBIT C
REGULATORY AGREEMENT (LOWNERY LOW)
affd housing umbrella agmt(Ver. 3)/72272/053
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Sheet,41h Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[LOW/VERY LOW INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October ,2001
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10/10/01
TABLE OF CONTENTS
Section 1. Definitions and Interpretation.........:..............................................................................2
Section 2. Acquisition,Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ...........................................................................................5
Section 4. Low/Very Low Income Households/Rents. ...............................................................6
Section5. Indemnification.......................................................................................:.........................9
Section6. Consideration....................................................................................................................9
Section7. Reliance..............................................................................................................................9
Section 8. Sale or Transfer of the Project.......................................................................................10
Section9. Term..................................................................................................................................10
Section 10. Covenants to Run With the Land...............................................................................10
Section17.. Burden and Benefit............................................................:..........................................11
Section 12. Uniformity; Common Plan..........................................................................................1.1
Section13. Enforcement...................................................................................................................11
Section 1.4. Recording and Filing........................................................................................:
Section 1.5. Payment of Fees............................................................................................................12
Section16. Governing Law. ............................................................................................................12
Section1.7. Amendments.................................................................................................................12
Section.18. Notice..............................................................................................................................12
Section19. Severability....................................................................................................................1.3
Section20. Multiple Counterparts. ................................................................................................13
EXHIBIT A- DESCRIPTION OF PROJECT SITE
EXHIBIT 6-STATISTICAL REPORT TO COUNTY
EXHIBIT C- CERTIFICATE OF HOUSEHOLD ELIGIBILITY
EXHIBIT D- CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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wc-59473
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
TIIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement") is dated as of October , 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WIEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed.income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS,in furtherance of the Specific Plans affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994,
and amended such program on , 2001 (as so amended, the "DVAHP"); and
WHEREAS, on 2001, County and Owner entered into that certain
Agreement to Amend Affordable Housing Program, pursuant to which agreement Owner agreed to
those certain amendments to the DVAI IP approved by the Board of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Goveriunent Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Properly") and,under the terms of Owner's Development
Agreement with County,is entitled to develop, among other things, up to 5,170 dwelling units
on the Property in accordance with the Specific Plan and subject to the terns and
provisions of, among other things, that certain May 11, 1994 Agreement to Settle Litigation
between the County, the Town of. Danville, the City of San Ramon,Shapell Industries, Inc., and
Windeinere Ranch Partners, which Settlement Agreement imposes certain conditions to the
development of more than 8500 dwelling units within the Dougherty Valley (the
" Project");
WHEREAS, in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
Project (the "Tentative Map") and, on , 2001., approved a large-
lot final subdivision map (the"Final Map"),which Final Map has been recorded in the Official
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Records of Contra Costa County and which creates certain parcels within "Area A" as shown on
the Tentative Map for the construction of rental units;
WHEREAS, Parcel_as shown on the Final Map is a`acre parcel upon which
Owner intends to construct rental units to be rented to low and very low income
households as more fully provided below (collectively, the "Low Income Units" and the "Very
Low Income Units," respectively).
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Incon►e" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable LI►iits" means any one or more of the units reserved for occupancy by Very
Low, Low, and. Moderate Income Households on the Property. The
Dougherty Valley Specific Plan requires that 25% of the units on the Property
be Affordable Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Progranz Compliance" means the Certificate to be.filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the.form
attached hereto as Exhibit D.
"Completion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completio►i Date" means the date of the completion of the construction and equipping of
the Project.
"D VAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on
2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
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"Incotne Certification means a Certification of Household Eligibility in the forin attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
"Lower Income" means generically all households of Very Low, Low, and Moderate
Income.
'1071)Income Households" means households whose annual incomes are from 51 to (and
including) 80 percent of the Contra Costa County Median Income, as adjusted for family size
and published by the California Department-of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Low Income Rent"means the lesser of (1) the monthly market rate rent, including a
Utility Allowance;or (2) a monthly rent-which is no greater than one hundred percent (100%)
of the Section 8 Existing Program Pair Market Rents, established in accordance with 24 CPR
Part 882, effective at the time of occupancy,less the Utility Allowance then in effect.
"LOW Income Units"means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by, Low Income Households.
"Median Income" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Monthly Incotne" means 1/12 of the Median Income.
"Moderate Incotne Households" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Inconne Rent" means the lesser of (1) the monthly market rate rent; or (2) for
studio units, a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income, including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance;for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income, including a Utility Allowance;and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of. the Median Monthly Income,including a Utility
Allowance.. Rents for studio units shall.be calibrated utilizing the one-person Median Income
Household incorne;one-bedroom.units shall use 1.10% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income, etc.
"O7oner" means and its successors and assigns, as owner of. the
Project Site.
"Project" means the [Lo7oI(Venj LOW] Income Units to be constructed by Owner on
the Project-Site.
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"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with, such buildings, structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A, which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is thirty (30) years after the
elate on which at least fifty percent(50%) of the dwelluig units in the Project were first
occupied.
"Regulatory Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
Utility Allowance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority gild approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
"Very Low Income Households" means households whose annual incomes do not exceed
50 percent of the Contra Costa County Median Income for Contra Costa County, as adjusted for
family size and published by the State Department of Housing and Community Development
pursuant to Iealth &Safety Code Sections 50079.5 and 50105.
"Very Low Income Rent" means a monthly rent,which is no greater than 30% of 50% of
the Median Monthly Income including a Utility Allowance. Rents for studio units shall be
calibrated utilizing the one-person Very Low Income Household income;one-bedroom.units
shall use a two-person Very Low Income Households income, two-bedroom units shall use a
three-person Very Low Income Households income, etc.
"Verb L ozv Incoine Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by,Very Low Income Households.
Unless the context clearly requires otherwise, as used in tlus Regulatory Agreement,
words of the masculine,feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa, when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction,Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified.
Project Period, as follows:
. (a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
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(b) The Owner reasonably expects to complete the construction of the Project-
by ,200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take,as applicable, any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement.
Section 3. Residential Rental Properly. Owner hereby agrees that the Project will be
owned, managed and operated as a residential rental project for a term equal to the Qualified
Project Period.To that end, and for the term of the Qualified Project Period, the Owner hereby
represents,covenants,warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Low and Very Low Income Households, and the Owner
will own,manage and operate the Project as a project to provide multifamily residential
rental property to Low and Very Low Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling trait.in the Project will contain complete separate and distinct
facilities for living, sleeping, eating,cooking and sanitation for a single person or a
family,including a sleeping area, bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink.
(c) Owner shall include, in any and all rental agreements, provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel, motel, dormitory,fraternity house, sorority house, rooming house,nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public.Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Low or Very Low Income Households.
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t
(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road, street or stream, and all of the Project Facilities will
comprise a single geographically and functionally integrated project for residential
rental property, as evidenced by the ownership, management, accounting and operation
of the Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling Louts by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) . During the Qualified Project Period,the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units.
(i) During the Qualified Project Period, Owner will not discriminate on the
basis of race,creed,color, sex,sexual orientation,national origin or ancestry,religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental, use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrindnation clause to such effect.
Section 4. [Lozu][Venj Lozo) Income Households/Rents. Owner hereby represents,
warrants and covenants as follows:
(a) Commencing on the Completion Date, [Lozo][Veiy L070.1 shall occupy
percent(_%) of all completed and occupied units in the Project; and for
the Qualified Project Period no less than_% of the total number of completed units of
the Project shall at all times be rented to and occupied by [Low][Very Lozu] Income
Households. For the purposes of this paragraph (a), a vacant unit which was most
recently occupied by a [Lozu][Very Lozu]Income Iousehol.d is treated as rented and
occupied by a [LOW][Veny Lozv] Income Household until reoccupied. Tenants in the
[L.ozv][Very Low] Income Units will have equal access and enjoyment to all common
facilities of the Project.
(b) The rents for the [Lozu][Venj Longi Income Units shall not exceed the
(Lozo][Veiy Low] Income Rent, respectively.
(c) No tenant qualifying as a [Lozo][Veny LOW] Income Household shall be
denied continued occupancy of a unit in the Project because, after admission, such
tenant's Adjusted Income increases to exceed the qualifying limit for[L ozo][Venj LOW]
Income Households;provided,however, that should a [Very LOW, LOW] Income
Household's Adjusted Income, as of the most recent determination thereof, exceed.one
hundred forty percent (140%) of the applicable income limit for a [Vent' LOW, L ozu]
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Income Household of the same family size, the next available unit of comparable or
smaller size must be rented to (or held vacant and available for immediate occupancy
by) a [Venj Lozu, L07VI Income Household; and provided further that,until such next
available unit is rented to a [Very Lozu, Lozu] Income Household, the.former [Very Lozu,
Lozu] Income Household who has ceased to qualify as such shall be deemed to continue
to be a [Very Low, Low] Income Household for purposes of the percent(_%)
requirement of Section 4(a) hereof until.the next available unit of comparable or smaller
size is rented to a qualifying[Very LOW, Lozu] Income Household.
(d) The Owner will obtain, complete, and maintain on file Income
Certifications from each [LowI[Veny LOW] Income Household in the form attached hereto
as Exhibit C, dated no more than thirty (30) days prior to the initial occupancy of such
[Lozu][Veiy Lozu] Income Household inn the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner will also obtain, complete, and maintain on file an
annual Income Certification from each[Very Low, L07UI Income Household, dated the
anniversary of the date of initial occupancy in the Project by such[Venj Low, Low]
Income Household. A copy of the most recent Income Certification for I'Very Low, Lozu]
Income Household commencing or continuing occupation of a [Very LOW, Lozu] Income
Unit shall be attached to each report to be filed with the County.The Owner shall make
a good faith effort to verify that the income provided by an applicant-in an Income
Certification is accurate by taking one or more of the following steps as a part of the
verification process: (1) obtain a pay stub for the most recent three months, (2) obtain an
income tax return for the most recent tax year, (3) conduct a TRW Credit Bureau or other
similar search, (4) obtain an income verification from the applicant's current employer,
(5) obtain an income verification from the Social Security Administration and/or the
Califorrua Department of. Social Services if the applicant receives assistance from either.
of such agencies, or (6) if the applicant is unemployed and does not have an income tax
return, obtain another form of independent verification. The Owner shall also engage in
a review of bank statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
[Lozu][Very Lozu] Income Units, and will permit any duly authorized representative of
the County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the [L0701[Veny Low]Income
Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,by [Low][Very Low]
Income Households during such period; (ii) that either (A) no unremedied default has
occurred under this Regulatory Agreement or (B) a default has occurred,in which event
the certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
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(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a [Lozv][Very Lozv] Income
Unit shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the [Lozv][Very Lozv] Income
Household in determining qualification for occupancy of the [Low][Venj Lozv] Income
Unit, and that any material misstatement in such certification (whether or not
intentional) will be cause for immediate termination of such lease or rental agreement.
Each such lease or rental agreement shall also provide that the tenant's income is subject
to annual certification in accordance with Section 4(d) hereof and that if upon any such
certification such tenant's Adjusted Income exceeds one hundred forty percent(140%) of
the applicable income limit for a [Lozv)[Very Lozv[Income Tenant of the same family size,
such tenant shall, subject to (b) above,cease to qualify as a [Venj Low, Lour] Income
Tenant, and such tenant's rent is subject to increase. A lease addendum setting forth
procedures for handling changes in tenant status shall be part of each lease agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period, Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
[Low][Very Low]Income Unit at the date of expiation or termination, and at a rent not
greater than the amount set forth in Section 4(b),until the earliest of any of the
following occurs: (1) the household's income exceeds 140 percent of the maximum
eligible income for [L ow][Veiy Lozu]Income Households; (2) the household voluntarily
moves or is evicted for "good cause" ("good cause" for the purposes of t-lnis subsection,
means the nonpayment of rent or facts necessaiy to prove major, or repeated minor,
violations of material provisions of the occupancy agreement which detrimentally affect
the health and safely of other persons or the structure, the fiscal integrity of the Project,
or the purposes or special programs of the Project); (3) two years after the expiration of
the Qualified Project Period;or (4) Owner pays the relocation assistance and benefits to
tenants as provided in subdivision (b) of Section 7264 of the Government Code. During
the three years prior to expiration of the Qualified Project Period,Owner shall continue
to.make available to eligible households [L oiv][Very Lozv[ Income Units that have been
vacated to the same extent that no.nreserved units are made available to noneligible
households.
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(1) All tenant lists, applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
shall be maintained as required by the County, in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing,but (i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement-that any requirement
would be in conflict with local, state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify
and hold harmless the County and its officers, directors,officials,employees and agents from
and against any and all claims made by any person (including claims for reasonable attorneys'
fees and costs) arising from any act or omission of the Owner or any of its agents, contractors,
servants, employees or licensees in connection with the design, construction,installation,
operation,use,occupancy,maintenance, or ownership of the Project(includiuzg any failure to
comply with laws, ordinances, rules or regulations of public authorities relating thereto or the
terms an d provisions of this Agreement); except to the extent any such claim arises from the
sole negligence of the County. In the event that any such claim, action or proceeding is brought
against the County or any of its officers, directors, officials, employees or agents,with respect to
which indemnity may be sought hereunder, the Owner,upon written notice from County, shall
assume the investigation and defense thereof, including the employment of counsel and the
payment-of all expenses. County shall have the right to employ separate counsel in any such
action or proceedings and to participate in the defense thereof, and Owner shall pay the
reasonable fees and expenses of such separate counsel;provided that County shall have the
right to review and reasonably approve or disapprove any compromise or settlement.The
provisions of this Section 5 shall survive the term of this Regulatory Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP, for
the purpose, among others, of inducing Owner to develop the Project Site and, construct, equip
and operate the Project with [Lo7vIlVenj L07v]Income Units. In consideration of these
development approvals by the County, the Owner has entered into this Regulatory Agreement
and has agreed to restrict the uses to which this Project can be put on the terms and conditions
set-forth herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of the [L07v][Very Lo7v] Income Households and upon
audits of the books and records of the Owner pertaining to the Project. In determining whether
any default or lack of compliance by the Owner exists under this Regulatory Agreement, the
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County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County), without obtaining the prior written consent of the County, which consent of the
County shall be given upon receipt by the County of(i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under tlus Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least tluee years' experience u1 the
ownership, operation and.management of large mixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable,financially and otherwise, of complying with,
and is willing to comply with, the terns of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect.for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
[lie terms hereof; provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termu-iation of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement. The County and the Owner hereby declare their express intent that the
covenants, reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however, that on the termination of this Regulatory Agreement said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants, reservations and
restrictions, regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby.The
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by JLozu][Veiy Lozu]Income Tenants, the intended beneficiaries of such
covenants,reservations and restrictions, and by furthering the public purposes for which the
project was approved.
Section 12. Uniformity;Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a corrunon
plan for the use,Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner,then County may declare an"Event of Default" to have
occurred hereunder, provided,however,that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days, such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perforin its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the Cotunty hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
Owner hereby grants to the County the option,upon the expiration of 60 days after the
giving of the notice to Owner of Owner's default under this Regulatory Agreement, until the
expiration of the Qualified Project Period or the termination of this Regulatory Agreement,
whichever first occurs, to lease up to percent(_%) of the units in the Project for a rental.
of$1..00 per unit per year for the purpose of subleasing such units to.[Low][Very L07u] Income
Households,but only to the extent necessary to comply with the provisions of Section 3 and
Section 4. The option granted in the preceding sentence shall be effective only if the Owner has
not iunstituted corrective action within such 60-day period. Upon the achievement,by the
Owner or the County,of compliance with the requirements of Section 3 and Section 4,County
and Owner will terminate any lease entered into between Owner and County pursuant to this
section and County shall assign to Owner any subleases entered into by County hereunder. In
the event County exercises its option hereunder, the County shall make diligent effort to
sublease [Low][Very Lozu]Income Units to [Lozu][Venj L07u] Income Households for monthly
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rental amounts equivalent to those collected from tenants of similar units in the Project but,
provided County exercises such diligent efforts,shall not be required to obtain such rental
amounts. Any rental paid under any such sublease shall be paid to the Owner after County has
been reimbursed for any expenses incurred in connection with such sublease. All fees, costs
and expenses of the County incurred in taking any action pursuant to this Section shall be the
sole responsibility of the Owner. The Owner hereby agrees that specific enforcement of the
Owner's agreements contained herein is the only means by which the County may obtain the
benefits of such agreements made by the Owner herein and the Owner therefore agrees to the
imposition of the remedy of specific performance against it in the case of any default by the
Owner hereunder. The rernedies set forth in this Section 13 shall be County's exclusive
remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto,to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request.The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual admiunistraLive
fee in an amount equal the greater of i) $5,000/year;or u) $75.00/[L ozu][Venj i ozu] Income
Unit/year,payable in advance in annual installments commencing on and
continuing each thereafter,until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 1.7. Amendments.
(a) This Regulatory Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Contra Costa, California. The parties requesting such amendment shall
notify the other parties to this Regulatory Agreement of the proposed amendment.
Section 1.8. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered mail, postage prepaid, return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor, North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or unpaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duty authorized representatives, all as of the date fust above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
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State of California )
ss
County of )
On before me, _ , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person.acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59473
State of California )
ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Si.Spature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low,Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low, Low, Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the.Last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low,Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom [Very Low,Low, Moderate] Income Units is
6. The number of one-bedroorn [Very Low, Low, Moderate] Income Units is
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7. The number of former [Very Low, Low] Income Households whose Adjusted Income
has exceeded"140% of the applicable income limit for a [Very Low, Low] Income
Households of the same family size and have therefore ceased to qualify as [Very Low,
Low] Income Households is
Owner:
By:
Its:
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL I-Iousing Cost$
I/We, the undersigned,being fust duly sworn, state that I/we have read and answered
fully and truthfully each of the fallowing questions for all persons who are to occupy the unit-
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
begi-sizing on the later of the date on wMch the above persons fust occupy the apartment or
sign a lease with respect to the apartment,including income described in (a) below,but
excluding all income described in (b) below,is$
(a) The amount set forth above includes all of the following income (unless
such income is described.in (b) below):
(i) all wages and salaries, over-time pay, commissions,fees,tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
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business or profession, except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies,retirement funds, pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings,such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject-to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities, include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities, plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage,the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay,special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household,spouse or other household member whose dependents are residing
in tfie unit; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets,such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation),capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically.for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a.live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition, fees,books, equipment,materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not-used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under trailing programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment, clothing, transportation,
child care,etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6)has any savings,stocks,bonds, equity in real property
or other form of capital investrn.ent (excluding interests in Indian crust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in tzust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $ , and
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Cotrunissi.on Expires:
........................................................................................................................................-................................................_...........................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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FOR COMPLETION BY PROJECT OWNER ONLY:
1. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than S5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0,enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
Il. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very lbw income.
1.II. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Median:Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential Units
in the Project(i) are occupied by [Very Low, Low, Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated.such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low,Low,Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
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EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
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EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
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CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We,the undersigned,being first duly sworn, state that Uwe have read and answered fully and
truthfully each of the following questions for all persons who are to occupy the unit in the above
apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period beginning
on the later of the date on which the above persons first occupy the apartment or sign a lease with respect
to the apartment, including income described in(a)below,but excluding all income described in(b)
below, is$
(a) The amount set forth above includes all of the following income(unless such
income is described inkb)below):
(i) all wages and salaries, over-time pay, commissions, fees,tips and
bonuses and other compensation for personal services,before payroll deductions;
(ii) net annual income from the operation of a business or profession or from
the rental of real or personal property(without deducting expenditures for business
expansion or amortization of capital indebtedness). (An allowance for depreciation of
assets used in a business or profession may be deducted,based on straight-line
depreciation, as provided in Internal Revenue Service regulations. Include any
withdrawal of cash or assets from the operation of a business or profession, except to the
extent the withdrawal is reimbursement of cash or assets invested in the operation by the
above persons):
(iii) interest and dividends (include all income from assets as set forth in
item 7(b)below and include any withdrawal of cash or assets from an investment, except
to the extent the withdrawal is reimbursement of cash or assets invested by the above
persons);
(iv) the full amount of periodic payments received from social security,
annuities, insurance policies,retirement funds,pensions, disability or death benefits and
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other similar types of periodic receipts including a lump-sum payment for the delayed
start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and disability
compensation,workers'compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes an
amount specifically designated for shelter and utilities that is subject to adjustment by
the welfare assistance agency in accordance with the actual cost of shelter and utilities,
include as income(a)the amount of the allowance or grant exclusive of the amount
specifically designated for shelter or utilities,plus (b) the maximum amount that the
welfare assistance agency could in fact allow the above persons for shelter and utilities.
(If the welfare assistance is ratably reduced from the standard of need by applying a
percentage,the amount calculated under clause(b) shall be the amount resulting from
one application of the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not residing
in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the Armed
Forces(whether or not living in the dwelling) who is the head of the household, spouse
or other household member whose dependents are residing in the unit; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children(including foster children)under
the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances, insurance
payments (including payments under health and accident insurance and worker's
compensation), capital gains and settlement for personal or property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of,the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or to the
education institution,and amounts paid by the Government to a veteran, for use in
meeting the costs of tuition, fees,books,equipment,materials, supplies,transportation,
and miscellaneous personal expenses of the student.Any amount of such scholarship or
payment to a veteran not used for the above purposes that is available for subsistence is
to be included in income;
(vii) The special pay to a household member serving in the Armed Forces
who is exposed to hostile fire;
(viii) (a)Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are disregarded for
a limited time for purposes of Supplemental Security income eligibility and
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benefits because they are set aside for use under a Plan to Attain Self-
Sufficiency(PASS); or
(c) Amounts received by a participant in other publicly assisted
programs which are specifically for or in reimbursement of out-of-pocket
expenses incurred (special equipment, clothing, transportation, child care, etc.)
and which are made solely to allow participation in a specific program;
(ix) Temporary,nonrecurring or sporadic income(including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under a
category of assistance programs that includes assistance under the United States Housing
Act of 1937.
7. If any of the persons described in column 1 above(or any person whose income or
contributions were included in item 6)has any savings, stocks,bonds, equity in real property or other
form of capital investment(excluding interests in Indian trust lands, but including the value of any assets
disposed of for less than fair market value(including a disposition in trust,but not in a foreclosure or
bankruptcy sale) during the previous two years in excess of the consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $_, and
(b) the amount of income expected to be derived from such assets in the 12-month
period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject project
and rental unit complying with affordable housing requirements of Contra Costa County as set forth in a
Regulatory Agreement and Declaration of Restrictive Covenants between the Owner and Contra Costa
County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a family of
Lower Income,may be treated as occupied by individuals or a family of Lower Income until reoccupied
for a period not to exceed 31 consecutive days.
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FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a)above is greater than 55,000, enter:
(i) the product of the amount entered in 7(a) above
multiplied by the current passbook savings rate as
determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line(i) minus line(ii)is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A)plus line I(B)(iii)): $
H. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income for the
Area with.adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No",then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low, Moderate]
income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate] income.
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
"Median ncome or a Area"means median income for the Contra Costa County, adjusted for family
size as published by the California Department of Housing and Community Development pursuant to
Health& Safety Code Sections 50079.5 and 50105.
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EXHIBIT E
DISCLOSURE FORM
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CONTRA COSTA COUNTY
DOUGHERTY VALLEY AFFORDABLE HOUSING PROGRAM
DISCLOSURE STATEMENT
This statement applies to the following area:
[Include map of project area or site description.]
State Housing Element law requires California jurisdictions to analyze existing and future
housing needs for all economic segments of the population and develop specific policies
and programs to meet the identified needs. In order to assist the County in meeting the
requirements of State Housing Element law, the Contra Costa County Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program (.DVAHP) in
March of 1994. The DVAHP was incorporated by reference into agreements between the
County, Shapell Industries of Northern California, and Windemere Ranch Partners-BLC
governing the future development of 11,000 housing units in the Dougherty Valley.
According to the requirements of the DVAHP, a minimum of 25 percent of all housing
units developed within Dougherty Valley must be affordable to very-low, low and
moderate-income households. In addition, at least 10 percent of the affordable units
must be affordable to very-low income households and 25 percent must be affordable to
low-income households.
Assuming all 11,000 housing units are developed, the DVAHP will result in the provision
of 2,750 affordable housing units in the Dougherty Valley, including 275 affordable to
very-low income households, 688 for low-income households, and 1,788 for moderate-
income households. While the affordable housing obligation may be met through the
development of either rental or ownership housing, current plans indicate that the
majority of the affordable units will be apartments.
Information concerning the status of the DVAHP including the location of proposed sites
for the affordable units may be obtained from Shapell Indusfries (408/946-1550) and
Windemere Ranch Partners (Lennar Communities 925/416-4949).
Very-low income households are defined as households with incomes at or below 50 percent of the area
median income for Contra Costa County(AMI)as adjusted for household size and defined by the State
Department of Housing and Community Development. Low-income households are defined as households
with incomes at/below 80 percent AMI,while moderate income households have incomes at/below 120
percent AMI.For example, in December of 2000,the maximum allowable income for a four person very-
low income household was$33,800,the maximum income for a low-income household was$67,600 and
$81,100 for a moderate income household.
Please sign this Disclosure Statement in the space provided below and return it to:
Shapell Industries Lennar Communities
100 North Milpitas Blvd. 5960 Inglewood Drive, # 220
Milpitas, CA 95035 Pleasanton, CA 94588
I have read and understand the above Dougherty Valley Affordable Housing Disclosure
Statement including provisions that require the provision of housing affordable to very-low,
low and moderate-income households in the Dougherty Valley.
By: Dated:
Signature of Buyer/Renter
Print name of Buyer/Renter
kkh/w/word/dvahp7
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
WINDEMERE BLC LAND COMPANY,LLC
OWNER
Dated as of
October 11, 2001
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AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM(the"Agreement")
is dated as of October Z6, 2001,by and between COUNTY OF CONTRA COSTA,a political
subdivision of the State of California("County"),and Windemere BLC Land Company,LLC,a
California limited liability company("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty Valley
Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in December 1996
(as so amended,the"Specific Plan");
WHEREAS,the Specific Plan provides for the development of a mixed income community in
the Dougherty Valley in order to promote a jobs-housing balance and address affordable housing needs
set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals,the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994(the
"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2379 acres of land within the Dougherty
Valley(the"Windemere Property")which,under the terms of the Specific Plan,is designated for the
development of, among other things,up to 5,170 residential dwelling units (the Windemere Project");
WHEREAS, Owner and County are parties to that certain Development Agreement, dated
January 18, 1996(the"Development Agreement"),which Development Agreement was entered into
pursuant to Section 65864 et seq. of the California Government Code, and Section 3.05 of which
Development Agreement requires compliance with the DVAHP;
WHEREAS, the Development Agreement requires the development of the Windemere Project to
be undertaken in a manner consistent with the terms and provisions of,among other things,that certain
Agreement to Settlement Litigation, dated May 11, 1994,by and between County,the City of San
Ramon,the Town of Danville, Owner's predecessor-in-interest and Shapell Industries,Inc. (the
"Settlement Agreement"), which Settlement Agreement provides(in Recital M)that the DVAHP may be
amended upon the written agreement of the County,Owner and Shapell.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend the DVAHP as
anticipated by the Settlement Agreement, and to enter into this Agreement concurrently with County and
Shapell entering into a similar agreement,in the form attached hereto as Exhibit A(the"Shapell
Agreement"),to so amend the DVAHP.
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein, and other good and valuable consideration,the receipt and sufficiency of which hereby are
acknowledged,the County and the Owner hereby agree as follows:
Section 1. Amendments of DVAHP. County may amend the DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
'Moderate Income Rent'shall mean the lesser of(1) the monthly market rate rent; or
(2)a monthly rent which is no greater than 30%of 100%of the Median Monthly Income for a
one person household, including a Utility Allowance,for studio units; a monthly rent which is no
greater than 30%of 110%of the Median Monthly Income for a two person household, including
a Utility Allowance,for one-bedroom units; a monthly rent which is no greater than 30%of
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120%of the Median Monthly Income for a three person household, including a Utility
Allowance,for two-bedroom units;and a monthly rent which is no greater than 30%of 120%of
the Median Monthly Income for a four person household, including a Utility Allowance,for
three-bedroom units.
(b) Section V(B)(2)of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following minimum
terms:
(i) For-sale Moderate Income Units shall be maintained as affordable for
the term governed by its subsidy source. Since the Dougherty Valley
Affordable Housing Program has been developed such that there is no
expectation of public participation(as defined below), the Moderate
Income for-sale units are not generally expected to have an affordability
term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of thirty
(30)years if the project is subject to public participation (which term
means the provision offinancial assistance in the form of, among other
things, a loan, grant, loan guarantee, or waiver of rents/modification of
development standards granted solely to enhance the affordability of the
units, etc), and twenty(20)years if no public participation is provided.
Developers/Owners offor-rent Moderate Income Units and specialized
facilities shall enter into a Regulatory Agreement(form to be provided
by the County)prior to the issuance of any building permit required for
the development.
Nothing in the foregoing shall prelude a longer term of
affordability as may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP is
hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income)and Exhibit C(Low/Very Low Income), respectively.
The"Certs ic'�at on of Homebuyer Eligibility" orm and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E,respectively,are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B,Exhibit C,Exhibit D and
Exhibit E are intended to be standard forms to be used by County an&Owner in connection with
aff_bRabTe housing projects that maybe proposed within the Windemere Project. Any regulatory
agreements entered into between County and Windemere shall be in substantially the form of
one of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income
project, a com enation o t ese forms), subject only to those modifications that may be necessary
or appropriate to reflect the circumstances or terms of any particular affordable housing
transaction. The forms attached hereto as Exhibit D and Exhibit E may be used subject only to
those modifications that may be necessaryor appropriate to re ect the circumstances or terms of
any particular affordable housing transaction
Section 2. No Other Amendments. Except as otherwise specified herein,the DVAHP shall
remain unchanged and a binding obligation of the parties as specified in Section 3.05 of the Development
Agreement.
Section 3. Effective Date of A eement. This Agreement shall become effective immediately
upon the execution an e ivery-of this Agreement and of the Shapell Agreement by all parties to such
agreements. This Agreement shall authorize only the amendments specified in Section 1 above, all of
which shall be adopted by the County Board of Supervisors, if at all, concurrently with its approval of
this Agreement.
2
we-60261
Section 4. Governing Law. This Agreement shall be governed by the laws of the State of
California.
Section 5. Notices. Any notice required to be given hereunder shall be made in writing and shall
be given by personaTcTerivery,certified or registered mail,postage prepaid,return receipt requested,at
the addresses specified below,or at such other addresses as may be specified in writing by the parties
hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4'Floor,North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Windemere BLC Land Company,LLC
3130 Crow Canyon Place, Suite 310
San Ramon,California 94583
Attention: Pete Petersen
With a copy to: R. Clark Morrison
Morrison&Foerster LLP
101 Ygnacio Valley Road
Suite 450
Walnut Creek, CA 94596
Notice shall be deemed given three business days after the date of mailing.
Section 6. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable,the va i t"dity,legality and enforceability of the remaining portions hereof shall not in any
way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of County and Owner an t eir respective successors and assigns.
Section 8. Multiple Counte arts. This Agreement may be simultaneously executed in multiple
counterparts,all of which shall constitute one and the same instrument,and each of which shall be
deemed to be an original.
3
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IN WITNESS WHEREOF, County and Owner have executed this Agreement by duly authorized
representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA OSTA
CONTRA COSTA COUNTY COUNSEL
Its"',;ChaiV Board of pervisors,
B - - -- _
de son
Its: Assistant County Counsel
WINDEMERE BLC LAND COMPANY LLC,a
California limited liability company
By: Brookfield Bay Area Holdings LLC,
a Delaware limited liability ompany
Member
By:
Its:
By:
Its: VP IcFo
By: Centex Homes,
a Nevada general partnership
Member
By: Centex Real Estate Corporation,
a Nevada general partnership
Managing General Partner
By.
Davi Barclay
Division President
By: LEN-OBS Windemere,LLC,
a Delaware limited liability company
Member
By: Lennar Homes of California, Inc.,
a California corporation
Managing Member
By:
Greg McWi lams
Vice President
4
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EXHIBIT A
SHAPELL AGREEMENT
A-1
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AGREEMENT TO A LEND
AFFORDABLE HOUSING
PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
SHAPELL INDUSTRIES, INC.
OWNER
Dated as of
October_, 2001
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM (the
"Agreement") is dated as of October 2001, by and between COUNTY OF CONTRA
COSTA, a political subdivision of the State of California("County"), and Shapell Industries,
Inc., a Delaware corporation ("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the
Dougherty Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley
Specific Plan in December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the
Board of Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24,
1994 (the"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2,708 acres of land within the
Dougherty Valley (the "Shapell Property") which, under the terms of the Specific Plan, is
designated for the development of, among other things, up to 5,830 residential dwelling units
(the "Shapell Project");
WHEREAS, Owner and County are parties to those certain Development
Agreements, dated January 11, 1995 and April 8, 1996 (the "Development Agreements"), which
Development Agreements were entered into pursuant to Section 65864 et seq. of the California
Government Code, and Section 3.05 of which Development Agreements requires compliance
with the DVAHP;
WHEREAS, the Development Agreements require the development of the Shapell
Project to be undertaken in a manner consistent with the terms and provisions of, among other
things, that certain Agreement to Settlement Litigation, dated May 11, 1994, by and between
County, the City of San Ramon, the Town of Danville, Owner and the predecessor-in-interest to
Windemere BLC Land Company, LLC (the"Settlement Agreement"), which Settlement
Agreement provides (in Recital M) that the DVAHP may be amended upon the written
agreement of the County, Owner and Windemere.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend
the DVAHP as anticipated by the Settlement Agreement, and to enter into this Agreement
concurrently with County and Windemere BLC Land Company, LLC entering into a similar
agreement, in the form attached hereto as Exhibit A (the"Windemere Agreement"), to so amend
the DVAHP.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
affd housing umbrella agmt (Ver. 3)/72272/053
Section 1. Amendments of DV AHP. County may amend the
DVAHP as follows:
(a) The definition of":Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
`Moderate Income Rent'shall mean the lesser of(1) the monthly
market rate rent; or (2) a monthly rent which is no greater than
30%of 100% of the Median JWonthly Income for a one person
household, including a Utility Allowance,for studio units; a
monthly rent which is no greater than 30% of 110% of the Median
Monthly Income for a two person household, including a Utility
Allowance,for one-bedroom units; a monthly rent which is no
greater than 30% of 1200•10 of theMedian Monthly Income for a
three person household, including a Utility.Allowance,for two-
bedroom units; and a monrhly rent which is no greater than 30%
of 120% of the 1ilIedian :11Ionth1y Income for a four person
household, including a Utility Allowance,for three-bedroom units.
(b) Section V(B)(2) of the DVAHP may be amended to read:
Moderate Income hits shall be maintained as such for the following
minimum terms.-
(i)
erms:(i) For-sale Moderate Income Units shall be maintained as affordable
for the term governed by its subsidy source. Since the Dougherty
Valley Affordable Housing Program has been developed such that
there is no expectation of public participation (as defined below),
the Moderate Income for-sale units are not generally expected to
have an affordability term.
(i) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of
thirty (30)years if the project is subject to public participation
(which term means the provision of financial assistance in the form
Of, among other things, a loan, grant, loan guarantee, or waiver of
rents/modification of development standards granted solely to
enhance the affordability of the units, etc.), and twenty (20)years
if no public participation is provided. Developers/Owners of for-
rent Moderate Income Units and specialized facilities shall enter
into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the
development.
Nothing in the foregoing shall preclude a longer term of affordability as
may be negotiated or required by f nancing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP
is hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C (LowNery Low Income), respectively.
The "Certification of Homebuyer Eligibility" form and"Disclosure Form" attached hereto as
Exhibit D and Exhibit E, respectively, are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B, Exhibit C, Exhibit D, and
affd housing umbrella agmt (Ver. 3)1-7227210:3
Exhibit E are intended to be standard forms to be used by County and Owner in connection with
affordable housing projects that may be proposed within the Shapell Project. Any regulatory
agreements so entered into between County and Shapell shall be in substantially the form of one
of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income project, a
combination of these forms) subject only to those modifications that may be necessary or
appropriate to reflect the circumstances or terms of any particular affordable housing transaction.
The forms attached hereto as Exhibit D and Exhibit E may be used subject only to those
modifications that may be necessary or appropriate to reflect the circumstances or terms of any
particular affordable housing transaction.
Section 2. No Other Amendments. Except as otherwise specified herein, the
DVABP shall remain unchanged and a binding obligation of the parties as specified in
Section 3.05 of the Development Agreements.
Section 3. Effective Date of Agreement. This Agreement shall become effective
immediately upon the execution and delivery hereof and of the Windemere Agreement by all
parties to such agreements. This Agreement shall authorize only the amendments specified in
Section 1 above, all of which shall be adopted by the County Board of Supervisors, if at all,
concurrently with its approval of this Agreement.
Section 4. Governing Law. This Agreement shall be governed by
the laws of the State of California.
Section 5. Notices. Any notice required to be given hereunder shall be made in
writing and shall be given by personal delivery, certified or registered mail, postage prepaid,
return receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Mr. Chris Truebridge, Division Manager
Shapell Industries of Northern California
P.O. Box 361169
100 North Milpitas Blvd.
Milpitas, CA 95035
Attention: Chris Truebridge
With a copy to: McCutchen, Doyle,Brown & Enersen, LLP
P.O. Box V
1333 N. California Boulevard, Suite 210
Walnut Creek, CA 94596
Attention: Cecily T. Talbert
Notice shall be deemed given three business days after the date of mailing.
affd housing umbrella agmt (Ver. 3)n2272i053
Section 6. Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof
shall not in any way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of County and Owner and their respective successors and assigns.
Section 8. Multiple Counterparts. This Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument, and
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, County and Owner have executed this Agreement by
duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL
By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
SHAPELL INDUSTRIES, INC., a Delaware
corporation
By: JL
Its:
By:
Its:
affd housing umbrella agmt (Ver. 3)n2272/053
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and could prevent fraudulent removal and reattachment of this form to another document.
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Description of Attached Document
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On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
tharby his signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
affd housing umbrella agmt (Ver. 3)n2272/053
EXIBIT A
WINDEivIERE AGREEMENT
affd housing umbrella agmt (Ver. 3)/72272/053
EXHIBIT B
REGULATORY AGREEMENT
(MODERATE INCOME—RENTAL PROJECT)
affd housing umbrella agmt(Ver. 3)n2272i053
EXHIBIT C
REGULATORY AGREEMENT (LOW/VERY LOW)
affd housing umbrella agmt(Ver. 3)m272i053
EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
B-1
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Street,4th Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[MODERATE INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October ,2001
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TABLE OF CONTENTS
Section 1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition,Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property............................................................................................4
Section 4. Moderate Income Households/Rents...........................................................................6
Section5. Indemnification.................................................................................................................8
Section6. Consideration....................................................................................................................8
Section7. Reliance..............................................................................................................................8
Section 8. Sale or Transfer of the Project.....:....................................................................................9
Section9. Term....................................................................................................................................9
Section 10. Covenants to Run With the Land..................................................................................9
Section 11. Burden and Benefit......................:................................................................................10
Section 12. Uniformity;Common Plan..........................................................................................10
Section 13. Enforcement. ....................................................................................................:............10
Section 14. Recording and Filing....................................................................................................11
Section15. Payment of Fees............................................................................................................11
Section16. Governing Law.............................................................................................................11
Section17. Amendments.................................................................................................................11
Section18. Notice. ............................................................................................................................11
Section19. Severability....................................................................................................................12 •
Section 20. Multiple Counterparts.................................................................................................12
EXHIBIT A- DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATION OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
i-
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement") is dated as of October 2001,by and between
COUNTY OF CONTRA COSTA,a political subdivision of the State of California ("County"),
and ,a California (the "Owner").
WITNESSETH:
WHEREAS,the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1.996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS,in furtherance of the Specific Plans affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994,and •
amended such program on 2001 (as so amended,the "DVAHP");and
WHEREAS,on ,2001,County and Owner entered into that certain
Agreement to Amend Affordable Housing Program,pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and,under the terms of Owner's
Development Agreement with County,is entitled to develop,among other things,up to
dwelling units on the Property in accordance with the Specific Plan and
subject to the terms and provisions of, among other things,that certain May 11,1994 Agreement
to Settle Litigation between the County, the Town of Danville, the City of San Ramon,Shapell
Industries,Inc. and Windemere Ranch Partners,which Settlement Agreement imposes certain
conditions to the development of more than 8500 dwelling units within the Dougherty Valley
(the Project");
WHEREAS,in December 1996 the County approved a vesting tentative map and final
development plan(No. ) for the phase of development of the
Project(the"Tentative Map") and,on ,2001,approved a final
subdivision map (the "Final Map"),which Final Map has been recorded in the Official Records
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of Contra Costa County and which creates certain parcels within"Area A" as shown on the
Tentative Map for the construction of rental units;
WHEREAS,Parcel_as shown on the Final Map is a--acre parcel upon which
Owner intends to construct_rental units to be rented to moderate income households as
more fully provided below (collectively,the "Moderate Income Units").
NOW,THEREFORE,in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration,the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low, Low,and Moderate Income Households on the Property. The Dougherty •
Valley Specific Plan requires that 25% of the units on the Property be Affordable
Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Completion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement,and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program,as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on ,2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
2
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i
"Median Income" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Monthly Income" means 1/12 of the Median Income. -
"Moderate Income Households" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of(1) the monthly market rate rent;or (2) for
studio units,a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income,including a Utility Allowance;for one-bedroom units,a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income,including a Utility Allowance;for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income,including a Utility Allowance;and for three-bedroom units,a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income,including a Utility
Allowance. Rents for studio units shall be calculated utilizing the one-person Median Income
Household income;one-bedroom units shall use 110% of two-person Median Income
Household income;two-bedroom units shall use 120% of a three-person Median Income
Household income,etc. -
"Moderate Income Units" means the rental units to be constructed by Owner on the
Project Site and rented to,or held available for occupancy by,Moderate Income Households.
"Owner"means ,and its successors and assigns, as owner of the
Project Site.
"Project" means the Moderate Income Units to be constructed by Owner on the
Project Site.
"Project Facilities" means all buildings,structures and other improvements to be
constructed on the Project Site,and all fixtures and other property of the Owner located on,or
used in connection with,such buildings,structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A,which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is twenty (20) years after the
date on which at least fifty percent(50%) of the dwelling units in the Project were first
occupied. (20-year Qualified Project Period Assumes no public participation as defined in revised
D VAHP.J
"Regulatory Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
3
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"Utility Allowance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine,feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number,and vice versa,when appropriate.This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction,Equipping and Completion of the Project. Owner
hereby represents as of the date hereof,and covenants and agrees for the term of the Qualified
Project Period,as follows:
(a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
(b) The Owner reasonably expects to complete the construction of the Project
by 200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take,as applicable,any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement in the form attached as Exhibit D.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned,managed and operated as a residential rental project for a term equal to the Qualified
Project Period.To that end,and for the term of the Qualified Project Period, the Owner hereby
represents,covenants,warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Moderate Income Households, and the Owner will own,
manage and operate the Project as a project to provide multifamily residential rental
property to Moderate Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living,sleeping,eating,cooking and sanitation for a single person or a
4
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family,including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink.
(c) Owner shall include,in any and all rental agreements,provisions
prohibiting the dwelling units in the Project from being used on a transient basis,or as a
hotel,motel, dormitory,fraternity house,sorority house, rooming house,nursing home,
hospital,sanitarium,rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project,except to the extent that dwelling units are required to be leased or
rented to Moderate Income Households.
(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road,street or stream,and all of the Project Facilities comprise
a single geographically and functionally integrated project for residential rental -
property,as evidenced by the ownership,management,accounting and operation of the
Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however,that if the Project contains five or more dwelling units,this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period,the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants, have substantially the same equipment and
amenities,and shall not be geographically segregated from such other units. [For mixed-
income projects only.]
(i) During the Qualified Project Period,Owner will not discriminate on the
basis of race,creed,color,sex,sexual orientation,national origin or ancestry,religion,
marital status,age,disability,source of income or receipt of public assistance or housing
assistance in connection with the rental,use,or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project,and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. Moderate Income Households/Rents. Owner hereby represents,warrants
and covenants as follows:
5
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(a) Commencing on the Completion Date,Moderate Income Households
shall occupy percent(_%) of all completed and occupied units in the
Project;and for the Qualified Project Period no less than_% of the total number of
completed units of the Project shall at all times be rented to and occupied by Moderate
Income Households. For the purposes of this paragraph (a), a vacant unit which was
most recently occupied by a Moderate Income Household is treated as rented and
occupied by a Moderate Income Household until reoccupied. Tenants in the Moderate
Income Units will have equal access and enjoyment to all common facilities of the
Project.
(b) The rents for the Moderate Income Units shall not exceed the Moderate
Income Rent.
(c) No tenant qualifying as a Moderate Income Household shall be denied
continued occupancy of a unit in the Project because,after admission, such tenant's
Adjusted Income increases to exceed the qualifying limit for Moderate Income
Households.
(d) The Owner will obtain,complete,and maintain on file Income
Certifications from each Moderate Income Household in the form attached hereto as
Exhibit C, dated no more than thirty (30) days prior to the initial occupancy of such
Moderate Income Household in the Project,and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner shall make a good faith effort to verify that the
income provided by an applicant in an Income Certification is accurate by taking one or
more of the following steps as a part of the verification process: (1) obtain a pay stub for
the most recent three months, (2) obtain an income tax return for the most recent tax
year, (3) conduct a TRW Credit Bureau or other similar search, (4) obtain an income
verification from the applicant's current employer, (5) obtain an income verification
from the Social Security Administration and/or the California Department of Social
Services if the applicant receives assistance from either of such agencies,or (6) if the
applicant is unemployed and does not have an income tax return,obtain another form
of independent verification. The Owner shall also engage in a review of bank
statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
Moderate Income Units,and will permit any duly authorized representative of the
County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the Moderate Income Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter,a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating(i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection(a)hereof,by Moderate Income
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Households during such period; (ii) that either (A) no unremedied default has occurred
under this Regulatory Agreement or (B) a default has occurred, in which event the
certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a Moderate Income Unit
shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the Moderate Income Household
in determining qualification for occupancy of the Moderate Income Unit,and that any
material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease or rental agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof. -
(j) At least twelve months prior to the expiration of the Qualified Project •
Period,Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure,deed in lieu of foreclosure,eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
Moderate Income Unit at the date of expiration or termination,and at a rent not greater
than the amount set forth in Section 4 (b),until the earliest of any of the following
occurs: (1) the household's income exceeds 140 percent of the maximum eligible income
for Moderate Income Households; (2) the household voluntarily moves or is evicted for
"good cause" ("good cause" for the purposes of this subsection,means the nonpayment
of rent or facts necessary to prove major,or repeated minor,violations of material
provisions of the occupancy agreement which detrimentally affect the health and safety
of other persons or the structure,the fiscal integrity of the Project,or the purposes or
special programs of the Project); (3) two years after the expiration of the Qualified
Project Period;or (4) Owner pays the relocation assistance and benefits to tenants as
provided in subdivision(b) of Section 7264 of the Government Code. During the three
years prior to expiration of the Qualified Project Period,Owner shall continue to make
available to eligible households Moderate Income Units that have been vacated to the
same extent that nonreserved units are made available to noneligible households.
(1) All tenant lists,applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
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shall be maintained as required by the County,in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing,but(i) no waiver by the County of any requirement of this Section 4 shall,or
shall be deemed to,extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local,state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify,
defend and hold harmless the County and its officers,directors,officials,employees and agents
from and against any and all claims made by any person (including claims for reasonable
attorneys' fees and costs) arising from.any act or omission of the Owner or any of its agents,
contractors, servants,employees or licensees in connection with the design,construction,
installation, operation,use,occupancy,maintenance,or ownership of the Project (including any
failure to comply with laws,ordinances,rules or regulations of public authorities relating
thereto or the terms and provisions of this Agreement); except to the extent any such claim •
arises from the sole negligence of the County. In the event that any such claim,action or
proceeding is brought against the County or any of its officers,directors, officials, employees or
agents,with respect to which indemnity may be sought hereunder, the Owner,upon written
notice from County,shall assume the investigation and defense thereof,including the
employment of counsel and the payment of all expenses. County shall have the right to employ
separate counsel in any such action or proceedings and to participate in the defense thereof,
and Owner shall pay the reasonable fees and expenses of such separate counsel;provided that
County shall have the right to review and reasonably approve or disapprove any compromise
or settlement. The provisions of this Section 5 shall survive the term of this Regulatory
Agreement.
Section 6. Consideration. The County approved the Specific Plan,and the DVAHP, for
the purpose,among others,of inducing Owner to develop the Project Site and,construct,equip
and operate the Project with'Moderate Income Units. In consideration of these development
approvals by the County, the Owner has entered into this Regulatory Agreement and has
agreed to restrict the uses to which this Project can be put on the terms and conditions set forth
herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder,the County may
.rely upon statements and certificates of the Moderate Income Households and upon audits of
the books and records of the Owner pertaining to the Project. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, the
County may conduct.any investigation into or review of the operations or records of the
Owner,or may rely solely on any written notice or certificate delivered to it by the Owner with
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respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section S. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell,transfer or otherwise dispose of the Project or any portion thereof (other than .
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),without obtaining the prior written consent of the County,which consent of the
County shall be given upon receipt by the County of(i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the '
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory.
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership,operation and management of large mixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects,or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above,or (c) the purchaser or assignee is capable,financially and otherwise,of complying with,
and is willing to comply with,the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary .
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein.and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute,deliver and record appropriate instruments of release and discharge of
the terms hereof;provided,however,that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement.The County and the Owner hereby declare their express intent that the
covenants,reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however,that on the termination of this Regulatory Agreement said covenants,reservations
and restrictions shall expire. Each and every contract,deed or other instrument hereafter .
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants,reservations and
restrictions,regardless of whether such covenants,reservations and restrictions are set forth in
such contract,deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The.
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by Moderate Income Tenants, the intended beneficiaries of such covenants,
reservations and restrictions,and by furthering the public purposes for which the project was
approved.
Section 12. Uniformity;Common Plan. The covenants,reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant,agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner,then County may declare an"Event of Default" to have
occurred hereunder,provided,however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days,such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may,at its option, take any one or more of the followings
steps:
(i) by mandamus or other suit,action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect,examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
The Owner hereby grants to the County the option, upon the expiration of 60 days after
the giving of the notice to Owner of the Owner's default under this Regulatory Agreement,
until the expiration of the Qualified Project Period or the termination of this Regulatory
Agreement,whichever first occurs, to lease up to percent(_%) of the units in the
Project for a rental of$1.00 per unit per year for the purpose of subleasing such units to
Moderate Income Households,but only to the extent necessary to comply with the provisions
of Section 3 and Section 4.The option granted in the preceding sentence shall be effective only
if the Owner has not instituted corrective action within such 60-day period. Upon the
achievement,by the Owner or the County,of compliance with the requirements of Section 3
and Section 4,County and Owner will terminate any leases entered into between Owner and
County pursuant to the option provided herein and County shall assign to Owner any
subleases entered into by County hereunder. In the event County exercises its option
hereunder,the County shall make diligent effort to sublease Moderate Income Units to
Moderate Income Households for monthly rental amounts equivalent to those collected from
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tenants of similar units in the Project but, provided County exercises such diligent efforts, shall
not be required to obtain such rental amounts. Any rental paid under any such sublease shall
be paid to the Owner after County has been reimbursed for any expenses incurred in
connection with such sublease. All fees,costs and expenses of the County incurred in taking
any action pursuant to this Section shall be the sole responsibility of the Owner. The Owner.
hereby agrees that specific enforcement of the Owner's agreements contained herein is the only
means by which the County may obtain the benefits of such agreements made by the Owner
herein and the Owner therefore agrees to the imposition of the remedy of specific performance
against it in the case of any default by the Owner hereunder. The remedies set forth in this
Section 13 shall be County's exclusive remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto,to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request.The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal to the greater of(i) $5000/year;or (ii) $75.00/Moderate Income
Unit/year, payable in advance in annual installments commencing on and
continuing on each thereafter,until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum. •
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments. This Regulatory Agreement shall be amended only by a
written instrument executed by the parties hereto or their successors in title,and duly recorded
in the real property records of the County of Contra Costa,California.The parties requesting
such amendment shall notify the other parties to this Regulatory Agreement of the proposed
amendment.
Section 18. Notice.. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered mail,postage prepaid,return
receipt requested,at the addresses specified below,or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4th Floor,North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
With a copy to:
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF,the County and the Owner have executed this Regulatory
.Agreement by duly authorized representatives,all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
•
By:
Its:
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State of California )
) ss
County of )
On before me, ,Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity,and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted,executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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State of California )
) ss
County of )
On before me, ,Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity,and
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted,executed.the instrument.
WITNESS my hand and official seal.
C,
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low,Low,Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low,Low, Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low,Low,Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom [Very Low, Low, Moderate] Income Units is
6. The number of one-bedroom[Very Low, Low, Moderate] Income Units is
Owner:
By:
Its:
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn,state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made,all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of •
Household Household Age Number . Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons first occupy the apartment or
sign a lease with respect to the apartment, including income described in(a) below,but
excluding all income described in(b)below,is$
(a) The amount set forth above includes all of the following income (unless
such income is described in bN below):
(i) all wages and salaries, over-time pay,commissions,fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation,as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
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business or profession,except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b)below and include any withdrawal of cash or assets from an
investment,except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security,annuities,insurance policies,retirement funds,pensions,disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings,such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities,plus (b)
the maximum amount that the welfare assistance agency could in fact allow the .
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances,such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay,special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household,spouse or other household member whose dependents are residing
in the unit;and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children(including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets,such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation), capital gains and settlement for personal or
property losses;
(iv) Amounts received by the Household that are specifically for,or in
reimbursement of,the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution,and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees,books,equipment,materials,
supplies, transportation,and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS);or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment,clothing,transportation,
child care,etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6)has any savings,stocks,bonds,equity in real property
or other form of capital investment(excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor),provide:
(a) the total value of all such assets owned by all such persons:$ ,and
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
............................................................................................................................................................................................................................................._....._.................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than S5,000,enter:
(i) the product of the amount entered in 7(a)
above multiplied by. the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0,enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II.Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%1 of Median Income.
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A)is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Median Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
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r�
EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of'(the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
in the Project(i) are occupied by [Very Low,Low,Moderate] Income Households(as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low,Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low,Low,Moderate]
Income Household: percent •
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
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I\
EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
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EXHIBIT C
REGULATORY AGREEMENT(LOW/VERY LOW)
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Street,4th Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[LOW/VERY LOW INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October ,2001
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TABLE OF CONTENTS
Section 1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition, Construction,Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property............................................................................................5
Section 4. Low/Very Low Income Households/Rents. ...............................................................6
Section 5. Indemnification.................................................................................................................9
Section6. Consideration....................................................................................................................9
Section7. Reliance..............................................................................................................................9
Section 8. Sale or Transfer of the Project.......................................................................................10
Section9. Term..................................................................................................................................10
Section 10. Covenants to Run With the Land...............................................................................10
Section 11. Burden and Benefit.......................................................................................................11
Section 12. Uniformity;Common Plan..........................................................................................11
Section13. Enforcement. .................................................................................................................11
Section 14. Recording and Filing....................................................................................................12
Section 15. Payment of Fees............................................................................................................12
Section16. Governing Law.............................................................................................................12
Section17. Amendments.................................................................................................................12
Section18. Notice. ............................................................................................................................12
Section19. Severability....................................................................................................................13
Section 20. Multiple Counterparts..........................................................................:............:.........13
EXHIBIT A-DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATE OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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wc-59473
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS(the "Regulatory Agreement") is dated as of October ,2001,by and between
COUNTY OF CONTRA COSTA,a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS,the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2,1992,and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended,the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS,in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24,1994,
and amended such program on , 2001 (as so amended, the "DVAHP");and
WHEREAS,on 2001,County and Owner entered into that certain
Agreement to Amend Affordable Housing Program,pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and,under the terms of Owner's Development
Agreement with County,is entitled to develop,among other things,up to 5,170 dwelling units
on the Property in accordance with the Specific Plan and subject to the terms and
provisions of,among other things, that certain May 11,1994 Agreement to Settle Litigation
between the County,the Town of Danville, the City of San Ramon,Shapell Industries, Inc.,and
Windemere Ranch Partners,which Settlement Agreement imposes certain conditions to the
development of more than 8500 dwelling units within the Dougherty Valley (the
Project");
WHEREAS,in December 1996 the County approved a vesting tentative map and final
development plan(No. ) for the phase of development of the
Project(the"Tentative Map") and,on , 2001,approved a large-
lot final subdivision map (the "Final Map"),which Final Map has been recorded in the Official
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Records of Contra Costa County and which creates certain parcels within "Area A" as shown on
the Tentative Map for the construction of rental units;
WHEREAS, Parcel_as shown on the Final Map is a_-acre parcel upon which
Owner intends to construct rental units to be rented to low and very low income
households as more fully provided below (collectively, the "Low Income Units" and the "Very
Low Income Units," respectively).
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein,and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged,the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low,Low, and Moderate Income Households on the Property. The
Dougherty Valley Specific Plan requires that 25% of the units on the Property
be Affordable Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Completion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on
2001.
"Housing Act" means the United States Housing Act of 1937,as amended, or its
successor.
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"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
"Lower Income" means generically all households of Very Low, Low,and Moderate
Income.
"Lozv Income Households" means households whose annual incomes are from 51 to (and
including) 80 percent of the Contra Costa County Median Income, as adjusted for family size
and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Low Income Rent"means the lesser of(1) the monthly market rate rent,including a
Utility Allowance;or (2) a monthly rent which is no greater than one hundred percent(100%)
of the Section 8 Existing Program Fair Market Rents, established in accordance with 24 CFR
Part 882,effective at the time of occupancy,less the Utility Allowance then in effect.
"Low Income Units"means the rental units to be constructed by Owner on the
Project Site and rented to,or held available for occupancy by, Low Income Households.
"Median Income" means the annual median income for the Contra Costa County,
adjusted for family size.as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Monthly Income" means 1/12 of the Median Income.
"Moderate Income Households" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income,as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of(1) the monthly market rate rent; or (2) for
studio units,a monthly rent which is no greater than 30% of 100%of the Median Monthly
Income,including a Utility Allowance;for one-bedroom units,a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income,including a Utility Allowance;for
two-bedroom units,a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income,including a Utility Allowance;and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income,including a Utility
Allowance. Rents for studio units shall be calibrated utilizing the one-person Median Income
Household income;one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income,etc.
"Oznner" means and its successors and assigns, as owner of the
Project Site.
"Project" means the [1,0711][Venj Low]Income Units to be constructed by Owner on
the Project Site.
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"Project Facilities" means all buildings,structures and other improvements to be
constructed on the Project Site,and all fixtures and other property of the Owner located on,or
used in connection with,such buildings, structures and other improvements constituting the
Project.
. "Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A,which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is thirty (30) years after the
date on which at least fifty percent(50%) of the dwelling units in the Project were first
occupied.
"Regulatonj Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
"Utilihj Alloivance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
"Venj Lozv Income Households" means households whose annual incomes do not exceed
50 percent of the Contra Costa County Median Income for Contra Costa County,as adjusted for
family size and published by the State Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Venj L07V Income Rent" means a monthly rent,which is no greater than 30%0 of 50% of
the Median Monthly Income including a Utility Allowance. Rents for studio units shall be
calibrated utilizing the one-person Very Low Income Household income; one-bedroom units
shall use a two-person Very Low Income Households income,two-bedroom units shall use a
three-person Very Low Income Households income, etc.
"Venj Lory Income Units" means the rental units to be constructed by Owner on the
Project Site and rented to,or held available for occupancy by,Very Low Income Households.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine,feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number,and vice versa,when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction, Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period,as follows:
(a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
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(b) The Owner reasonably expects to complete the construction of the Project
by ;200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project,the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take,as applicable,any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned,managed and operated as a residential rental project for a term equal to the Qualified
Project Period. To that end,and for the term of the Qualified Project Period,the Owner hereby
represents,covenants,warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Low and Very Low Income Households,and the Owner
will own,manage and operate the Project as a project to provide multifamily residential
rental property to Low and Very Low Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living, sleeping, eating,cooking and sanitation for a single person or a
family,including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range,refrigerator and sink.
(c) Owner shall include, in any and all rental agreements,provisions
prohibiting the dwelling units in the Project from being used on a transient basis,or as a
hotel,motel, dormitory,fraternity house,sorority house,rooming house,nursing home,
hospital,sanitarium,rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project,except to the extent that dwelling units are required to be leased or
rented to Low or Very Low Income Households.
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(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road, street or stream, and all of the Project Facilities will
comprise a single geographically and functionally integrated project for residential
rental property,as evidenced by the ownership,management,accounting and operation
of the Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however,that if the Project contains five or more dwelling units,this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities,and shall not be geographically segregated from such other units.
(i) During the Qualified Project Period,Owner will not discriminate on the
basis of race,creed,color,sex,sexual orientation,national origin or ancestry,religion,
marital status,age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental,use,or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project,and all contracts,applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. [Local[Venj Low)Income Households/Rents. Owner hereby represents,
warrants and covenants as follows:
(a) Commencing on the Completion Date, [Low][Venj LOW]shall occupy
percent(_%) of all completed and occupied units in the Project;and for
the Qualified Project Period no less than_% of the total number of completed units of
the Project shall at all times be rented to and occupied by[Low][Venj LOW] Income
Households. For the purposes of this paragraph (a), a vacant unit which was most
recently occupied by a [Lozo][Venj Low]Income Household is treated as rented and
occupied by a (Low][Venj Low]Income Household until reoccupied. Tenants in the
[Low][Very Low]Income Units will have equal access and enjoyment to all common
facilities of the Project.
(b) The rents for the[Low][Venj Low]Income Units shall not exceed the
[Lozu][Venj Low]Income Rent,respectively.
(c) No tenant qualifying as a [Low][Venj Low] Income Household shall be
denied continued occupancy of a unit in the Project because, after admission, such
tenant's Adjusted Income increases to exceed the qualifying limit for [Low][Venj Low]
Income Households;provided,however, that should a [Venj Low, Low] Income
Household's Adjusted Income,as of the most recent determination thereof,exceed one
hundred forty percent(140%) of the applicable income limit for a [Venj Low, Low]
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Income Household of the same family size,the next available unit of comparable or
smaller size must be rented to (or held vacant and available for immediate occupancy
by) a [Very Low, Low] Income Household;and provided further that,until such next
available unit is rented to a [Venj Low, Low]Income Household, the former [Very Low,
Low]Income Household who has ceased to qualify as such shall be deemed to continue
to be a [Very Low, Low] Income Household for purposes of the percent(_%)
requirement of Section 4(a) hereof until the next available unit of comparable or smaller
size is rented to a qualifying[Venj Low, Low] Income Household.
(d) The Owner will obtain,complete,and maintain on file Income
Certifications from each [Louy][Venj Low]Income Household in the form'attached hereto
as Exhibit C, dated no more than thirty (30) days prior to the initial occupancy of such
[Low][Venj Low]Income Household in the Project,and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner will also obtain,complete, and maintain on file an
annual Income Certification from each [Venj Low, Low]Income Household, dated the
anniversary of the date of initial occupancy in the Project by such [Venj Low, Low]
Income Household. A copy of the most recent Income Certification for [Venj Low, Low]
Income Household commencing or continuing occupation of a [Venj Low, Low] Income
Unit shall be attached to each report to be filed with the County.The Owner shall make
a good faith effort to verify that the income provided by an applicant in an Income
Certification is accurate by taking one or more of the following steps as a part of the
verification process: (1) obtain a pay stub for the most recent three months, (2) obtain an
income tax return for the most recent tax year, (3) conduct a TRW Credit Bureau or other
similar search, (4) obtain an income verification from the applicant's current employer,
(5) obtain an income verification from the Social Security Administration and/or the
California Department of Social Services if the applicant receives assistance from either
of such agencies, or (6) if the applicant is unemployed and does not have an income tax
return,obtain another form of independent verification. The Owner shall also engage in
a review of bank statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
[Low][Venj Low] Income Units, and will permit any duly authorized representative of
the County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the [L07V][Venj Low] Income
Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent (95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating(i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,by [Low][Venj Low]
Income Households during such period; (ii) that either (A) no unremedied default has
occurred under this Regulatory Agreement or (B) a default has occurred, in which event
the certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
7
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(g) Owner 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 program under Section 8 of the Housing Act,or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a [Low][Venj Lozv] Income
Unit shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the [Low][Venj Lozv] Income
Household in determining qualification for occupancy of the [Low][Venj Lozv] Income
Unit, and that any material misstatement in such certification(whether or not
intentional) will be cause for immediate termination of such lease or rental agreement.
Each such lease or rental agreement shall also provide that the tenant's income is subject
to annual certification in accordance with Section 4(d) hereof and that if upon any such
certification such tenant's Adjusted Income exceeds one hundred forty percent(140%) of
the applicable income limit for a [Low][Venj Lozv]Income Tenant of the same family size,
such tenant shall, subject to (b) above,cease to qualify as a [Venj Lozv, Lozv] Income
Tenant, and such tenant's rent is subject to increase. A lease addendum setting forth
procedures for handling changes in tenant status shall be part of each lease agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period,Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain,or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
[Lozv][Venj Lozv]Income Unit at the date of expiration or termination, and at a rent not
greater than the amount set forth in Section 4(b),until the earliest of any of the
following occurs: (1) the household's income exceeds 140 percent of the maximum
eligible income for[Low][Venj Lozv] Income Households; (2) the household voluntarily
moves or is evicted for "good cause" ("good cause" for the purposes of this subsection,
means the nonpayment of rent or facts necessary to prove major,or repeated minor,
violations of material provisions of the occupancy agreement which detrimentally affect
the health and safety of other persons or the structure, the fiscal integrity of the Project,
or the purposes or special programs of the Project); (3) two years after the expiration of
the Qualified Project Period;or (4) Owner pays the relocation assistance and benefits to
tenants as provided in subdivision (b) of Section 7264 of the Government Code. During
the three years prior to expiration of the Qualified Project Period,Owner shall continue
to make available to eligible households [Low][Venj Lozv] Income Units that have been
vacated to the same extent that nonreserved units are made available to noneligible
households.
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(1) All tenant lists,applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
shall be maintained as required by the County,in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing,but(i)no waiver by the County of any requirement of this Section 4 shall,or
shall be deemed to,extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local,state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify
and hold harmless the County and its officers,directors,officials,employees and agents from
and against any and all claims made by any person (including claims for reasonable attorneys'
fees and costs) arising from any act or omission of the Owner or any of its agents,contractors,
servants, employees or licensees in connection with the design,construction,installation,
operation,use,occupancy,maintenance,or ownership of the Project(including any failure to
comply with laws,ordinances,rules or regulations of public authorities relating thereto or the
terms an d provisions of this Agreement); except to the extent any such claim arises from the
sole negligence of the County. In the event that any such claim,action or proceeding is brought
against the County or any of its officers,directors,officials,employees or agents,with respect to
which indemnity may be sought hereunder, the Owner,upon written notice from County, shall
assume the investigation and defense thereof,including the employment of counsel and the
payment of all expenses. County shall have the right to employ separate counsel in any such
action or proceedings and to participate in the defense thereof,and Owner shall pay the
reasonable fees and expenses of such separate counsel; provided that County shall have the
right to review and reasonably approve or disapprove any compromise or settlement..The
provisions of this Section 5 shall survive the term of this Regulatory Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose,among others,of inducing Owner to develop the Project Site and,construct,equip
and operate the Project with[Low][Venj Lou;]Income Units. In consideration of these
development approvals by the County,the Owner has entered into this Regulatory Agreement
and has agreed to restrict the uses to which this Project can be put on the terms and conditions
set forth herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder,the County may
rely upon statements and certificates of the [Lou;][Venj Low] Income Households and upon
audits of the books and records of the Owner pertaining to the Project. In determining whether
any default or lack of compliance by the Owner exists under this Regulatory Agreement, the
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County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),without obtaining the prior written consent of the County,which consent of the
County shall be given upon receipt by the County of(i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee),and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership,operation and management of large mixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects,or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above,or (c) the purchaser or assignee is capable,financially and otherwise,of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. Itis hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof; provided,however,that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement. The County and the Owner hereby declare theirr express intent that the
covenants,reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however, that on the termination of this Regulatory Agreement said covenants,reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants,reservations and
restrictions,regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County,and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by [Low][Venj Lozu]Income Tenants, the intended beneficiaries of such
covenants, reservations and restrictions, and by furthering the public purposes for which the
project was approved.
Section 12. Uniformity;Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common
plan for the use,Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an"Event of Default" to have
occurred hereunder,provided,however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days,such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option,take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project;and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
Owner hereby grants to the County the option,upon the expiration of 60 days after the
giving of the notice to Owner of Owner's default under this Regulatory Agreement,until the
expiration of the Qualified Project Period or the termination of this Regulatory Agreement,
whichever first occurs, to lease up to percent (_%) of the units in the Project for a rental
of$1.00 per unit per year for the purpose of subleasing such units to [LOW][Venj Lozv] Income
Households,but only to the extent necessary to comply with the provisions of Section 3 and
Section 4.The option granted in the preceding sentence shall be effective only if the Owner has
not instituted corrective action within such 60-day period. Upon the achievement,by the
Owner or the County,of compliance with the requirements of Section 3 and Section 4,County
and Owner will terminate any sublease entered into between Owner and County pursuant to
this section and County shall assign to Owner any subleases entered into by County hereunder.
In the event County exercises its option hereunder, the County shall make diligent effort to
sublease [Lozv][.Venj Lozu] Income Units to [Lou)][Venj Loiu]Income Households for monthly
11
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rental amounts equivalent to those collected from tenants of similar units in the Project but,
provided County exercises such diligent efforts, shall not be required to obtain such rental
amounts. Any rental paid under any such sublease shall be paid to the Owner after County has
been reimbursed for any expenses incurred in connection with such sublease. All fees,costs
and expenses of the County incurred in taking any action pursuant to this Section shall be the
sole responsibility of the Owner. The Owner hereby agrees that specific enforcement of the
Owner's agreements contained herein is the only means by which the County may obtain the
benefits of such agreements made by the Owner herein and the Owner therefore agrees to the
imposition of the remedy of specific performance against it in the case of any default by the
Owner hereunder. The remedies set forth in this Section 13 shall be County's exclusive
remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto,to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal the greater of i) $5,000/year; or u) $75.00/[Lozu][Venj Lozu] Income
Unit/year,payable in advance in annual installments commencing on and
continuing each thereafter,until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments.
(a) This Regulatory Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Contra Costa,California. The parties requesting such amendment shall
notify the other parties to this Regulatory Agreement of the proposed amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered:mail,postage prepaid, return
receipt requested,at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4th Floor, North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts,all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives,all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
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State of California )
) ss
County of )
On before me, ,Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and ,
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted,executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59473
State of California )
) ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity,and
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted,executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59473
EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low,Moderate] Income Units occupied by [Very Low,Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low,Low, Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low,Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom[Very Low,Low, Moderate] Income Units is
6. The number of one-bedroom [Very Low,Low, Moderate] Income Units is
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7. The number of former [Very Low,Low] Income Households whose Adjusted Income
has exceeded 140% of the applicable income limit for a [Very Low,Low] Income
Households of the same family size and have therefore ceased to qualify as [Very Low,
Low] Income Households is
Owner:
By:
Its:
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We,the undersigned,being first duly sworn,state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons first occupy the apartment or
sign a lease with respect to the apartment, including income described in (a) below,but
excluding all income described in (b) below,is$
(a) The amount set forth above includes all of the following_income (unless
such income is described in (b) below):
(i) all wages and salaries,over-time pay,commissions, fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation,as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
C-1
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business or profession;except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b)below and include any withdrawal of cash or assets from an
investment,except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security,annuities,insurance policies,retirement funds,pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings,such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or.utilities,plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances,such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household,spouse or other household member whose dependents are residing
in the unit, and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets,such as inheritances,
insurance payments (including payments under health and accident insurance
C-2
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and worker's compensation),capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for,or in
reimbursement of,the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution,and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees,books, equipment,materials,
supplies,transportation,and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS);or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment,clothing, transportation;
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts);or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6) has any savings,stocks,bonds, equity in real property
or other form of capital investment(excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor),provide:
(a) the total value of all such assets owned by all such persons: $ ,and
C-3
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
C-4
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FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than 55,000,enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
1
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0,enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
C-5
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
*"Median Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
C-6
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
in the Project(i) are occupied by [Very Low, Low,Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low,Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
D-1
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EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
E-1
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EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
D-1
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CERTIFICATION OF HGUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent: -- ----- -
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We,the undersigned,being first duly sworn, state that I/we have read and answered fully and
truthfully each of the following questions for all persons who are to occupy the unit in the above
apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period beginning
on the later of the date on which the above persons first occupy the apartment or sign a lease with respect
to the apartment, including income described in(a)below,but excluding all income described in(b)
below, is$
(a) The amount set forth above includes all of the following income(unless such
income is described in(b)be ow :
(i) all wages and salaries, over-time pay, commissions, fees,tips and
bonuses and other compensation for personal services,before payroll deductions;
(ii) net annual income from the operation of a business or profession or from
the rental of real or personal property(without deducting expenditures for business
expansion or amortization of capital indebtedness). (An allowance for depreciation of
assets used in a business or profession may be deducted, based on straight-line
depreciation,as provided in Internal Revenue Service regulations. Include any
withdrawal of cash or assets from the operation of a business or profession, except to the
extent the withdrawal is reimbursement of cash or assets invested in the operation by the
above persons):
(iii) interest and dividends (include all income from assets as set forth in
item 7(b)below and include any withdrawal of cash or assets from an investment, except
to the extent the withdrawal is reimbursement of cash or assets invested by the above
persons);
(iv) the full amount of periodic payments received from social security,
annuities, insurance policies,retirement funds,pensions,disability or death benefits and
C-1
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other similar types of periodic receipts including a lump-sum payment for the delayed
start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and disability
compensation, workers'compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes an
amount specifically designated for shelter and utilities that is subject to adjustment by
the welfare assistance agency in accordance with the actual cost of shelter and utilities,
include as income(a)the amount of the allowance or grant exclusive of the amount
specifically designated for shelter or utilities,plus(b)the maximum amount that the
welfare assistance agency could in fact allow the above persons for shelter and utilities.
(If the welfare assistance is ratably reduced from the standard of need by applying a
percentage,the amount calculated under clause(b) shall be the amount resulting from
one application of the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not residing
in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the Armed
Forces(whether or not living in the dwelling) who is the head of the household, spouse
or other household member whose dependents are residing in the unit; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children(including foster children)under
the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances, insurance
payments(including payments under health and accident insurance and worker's
compensation), capital gains and settlement for personal or property losses;
(iv) Amounts received by the household that are specifically for,or in
reimbursement of,the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or to the
education institution, and amounts paid by the Government to a veteran, for use in
meeting the costs of tuition, fees,books, equipment,materials, supplies,transportation,
and miscellaneous personal expenses of the student.Any amount of such scholarship or
payment to a veteran not used for the above purposes that is available for subsistence is
to be included in income;
(vii) The special pay to a household member serving in the Armed Forces
who is exposed to hostile fire;
(viii) (a)Amounts received under training programs funded by HUD; .
(b) Amounts received by a Disabled person that are disregarded for
a limited time for purposes of Supplemental Security income eligibility and
C-2
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benefits because they are set aside for use under a Plan to Attain Self-
Sufficiency(PASS); or
(c) Amounts received by a participant in other publicly assisted
programs which are specifically for or in reimbursement of out-of-pocket
expenses incurred (special equipment, clothing,transportation, child care, etc.)
and-which are made solely to allow participation in a specific program; _
(ix) Temporary,nonrecurring or sporadic income(including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under a
category of assistance programs that includes assistance under the United States Housing
Act of 1937.
7. If any of the persons described in column 1 above(or any person whose income or
contributions were included in item 6)has any savings, stocks,bonds, equity in real property or other
form of capital investment(excluding interests in Indian trust lands,but including the value of any assets
disposed of for less than fair market value(including a disposition in trust,but not in a foreclosure or
bankruptcy sale)during the previous two years in excess of the consideration received therefor),provide:
(a) the total value of all such assets owned by all such persons: $_, and
(b) the amount of income expected to be derived from such assets in the 12-month
period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject project
and rental unit complying with affordable housing requirements of Contra Costa County as set forth in a
Regulatory Agreement and Declaration of Restrictive Covenants between the Owner and Contra Costa
County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a family of
Lower Income,may be treated as occupied by individuals or a family of Lower Income until reoccupied
for a period not to exceed 31 consecutive days.
C-3
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FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A). Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a)above is greater than 55,000, enter:
(i) the product of the amount entered in 7(a) above
- ----multiplied by the-current passbook savings rate as
determined by HUD: $
(ii) the amount entered in 7(b)above: $
(iii) line(i)minus line(ii) is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A)plus line I(B)(iii)): $
H. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income for the
Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A)is "No",then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low, Moderate]
income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate] income.
C-4
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
"Median Income for the Area"means median income for the Contra Costa County, adjusted for family
size as published by the California Department of Housing and Community Development pursuant to
Health& Safety Code Sections 50079.5 and 50105.
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EXHIBIT E
DISCLOSURE FORM
E-1
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CONTRA COSTA COUNTY
DOUGHERTY VALLEY AFFORDABLE HOUSING PROGRAM
DISCLOSURE STATEMENT
This statement applies to the following area:
[Include map of project area or site description.]
State Housing Element law requires California jurisdictions to analyze existing and future
housing needs for all economic segments of the population and develop specific policies
and programs to meet the identified needs. In order to assist the County in meeting the
requirements of State Housing Element law, the Contra Costa County Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program (DVAHP) in
March of 1994. The DVAHP was incorporated by reference into agreements between the
County, Shapell Industries of Northern California, and Windemere Ranch Partners-BLC
governing the future development of 11,000 housing units in the Dougherty Valley.
According to the requirements of the DVAHP, a minimum of 25 percent of all housing
units developed within Dougherty Valley must be affordable to very-low, low and
moderate-income households. In addition, at least 10 percent of the affordable units
must be affordable to very-low income households and 25 percent must be affordable to
low-income households.
Assuming all 11,000 housing units are developed, the DVAHP will result in the provision
of 2;750 affordable housing units in the Dougherty Valley, including 275 affordable to
very-low income households, 688 for low-income households, and 1,788 for moderate-
income households. While the affordable housing obligation may be met through the
development of either rental or ownership housing, current plans indicate that the
majority of the affordable units will be apartments.
Information concerning the status of the DVAHP including the location of proposed sites
for the affordable units may be obtained from Shapell Industries (408/946-1550) and
Windemere Ranch Partners (Lennar Communities 925/416-4949).
Very-low income households are defined as households with incomes at or below 50 percent of the area
median income for Contra Costa County(AMI)as adjusted for household size and defined by the State
Department of Housing and Community Development.Low-income households are defined as households
with incomes at/below 80 percent AMI,while moderate income households have incomes at/below 120
percent AMI.For example,in December of 2000,the maximum allowable income for a four person very-
low income household was$33,800,the maximum income for a low-income household was$67,600 and
$81,100 for a moderate income household.
Please sign this Disclosure Statement in the space provided below and return it to:
Shapell Industries Lennar Communities
100 North Milpitas Blvd. 5960 Inglewood Drive, # 220
Milpitas, CA 95035 Pleasanton, CA 94588
I have read and understand the above Dougherty Valley Affordable Housing Disclosure
Statement including provisions that require the provision of housing affordable to very-low,
low and moderate-income households in the Dougherty Valley.
By: Dated:
Signature of Buyer/Renter
Print name of Buyer/Renter
kkh/w/word/dvahp7
REQUEST TO SPEAR FORM
(THREE (3) MINUTE LIMIT)
Complete this form and place it in the box near the speakers'
rostrum before addressing the Board.
Name: 1111gl e"ll /�� Phone:
Address: p;UR �/77//1�(f �6iV city:
I am speaking for myself _ or organization:
VlL'.6-/ WIVOR
(name of organization)
CHECK ONE:
I wish to speak on Agenda Item # 2) Date:
My comments will be: general for against
I wish to speak on the subject of
I do not wish to speak but leave these comments for the
Board to consider:
SPEAKERS
1. Deposit the "Request to Speak" form (on the reverse side) in
the box next to the speaker's microphone before your agenda
item is to be considered.
2 . You will be called on to make your presentation.
Please speak into the microphone at the podium.
3 . Begin by stating your name and address and whether
you are speaking for yourself or as the
representative of an organization.
4 . Give the Clerk a copy of your presentation or
support documentation if available before speaking.
5. Limit your presentation to three minutes. Avoid
repeating comments made by previous speakers.
(The Chair may limit length of presentations so all
persons may be heard) .
If TO
San Ramon
C
O� O•
CITY OF SAN RAMON 2222 CAMINO RAMON
P.O.Box 5148
SAN RAMON,CALIFORNIA 94583
PHONE: (925)973-2500
t EMAIL: sanramon@ci.san-ranion.ca.us
October 5, 2001 . -
'• ��1 � r`l ��,-,., 1,
The Honorable Gayle Uilkema
and members of the Board of Supervisors !-='':_ ` I. .
Contra Costa County <; j
651 Pine Street
Martinez, CA 94583
Dear Chairperson Uilkema and members of the Board of Supervisors:
RE Dougherty Valley Affordable Housing Program
This is in response to the Community Development Department's staff report dated October 2,
2001 for the Board of Supervisors meeting. The City of San Ramon has reviewed the proposed
amendments to the Dougherty Valley Affordable Housing Program and requests that they be
adopted as presented and amended at the meeting.
We respectfully request that the County find Shapell Industries in compliance with this issue.
Sincerel
David E. Hudson
Mayor
C01.246
Gr L, r3 - -5
0-P G> .
IQ iii)
CITY COUNCIL:973-2530 ADMINISTRATIVE SERVICES:973-2523 PARKS&COMMUNITY SERVICES:973-3290 BUILDING&SAFETY SERVICES:973-2589
CITY MANAGER:973-2530 POLICE SERVICES:973-2700 AQUATIC CENTER:973-3240 ECONOMIC DLVELOPAIEN7$ERVICL•S:9
CITY CLERK:973-2539 PUHLIC SERVICES:973-2800 COMMUNITY CENTER:973-3200 E'NGrNEERING SERVICES:973.261 O I
SENIOR CENTER:973-3250 PLANNING SERVICFS:973-2560 /
TRANSPORTATION SERVICES:973-261,\
TO 6P
b4
San Ramon
,y
o
CITY OF SAN RAMON 2222 CAMINO RAMON
P.O.Box 5148
SAN RAMON,CALIFORNIA 94583
PHONE: (925)973-2500
i•' -..- EMAIL: Sanramon@ci.san-ramon.ca.us
October 5, 2001 }"' --
f.
f'
OCT 0
The Honorable Gayle Uilkema
and members of the Board of Supervisors ` ?
Contra Costa County
651 Pine Street
Martinez, CA 94583
Dear Chairperson Uilkema and members of the Board of Supervisors:
RE, Dougherty Valley Affordable Housing Program
This is in response to the Community Development Department's staff report dated October 2,
2001 for the Board of Supervisors meeting. The City of San Ramon has reviewed the proposed
amendments to the Dougherty Valley Affordable Housing Program and requests that they be
adopted as presented and amended at the meeting.
We respectfully request that the County find Shapell Industries in compliance with this issue.
Sincerely,
W-L
David E. Hudson
Mayor
C01.246
e. !3! S
CITY COUNCIL:973-2530 ADMINISTRATIVE SERVICES:973-2523 PARKS&COMMUNITY SERVICES:973-3290 BUILDING&SAFETY SERVICES:973-2580
CITY MANAGER:973-2530 POLICE SERVICES:973-2700 AQUATIC CENTER:973-3240 ECONOMIC DEVELOPMENTSERVICES;973-2550
CITY CLERK:973-2539 PUBLIC SERVICES:973-2900 COMMUNITY CENTER:973.3200 ENGINEERING SERVICES:973-2610
SENIOR CENTER:973-3250 PLANNING SERVICES:973-2560
TRANSPORTATION SERVICES:973-2600
Contra
: . r Costa
TO:* BOARD OF SUPERVISORS County
la uF.J
FROM: Dennis M. Barry, AICP, Director of Community Development L,
DATE: October 16, 2001
SUBJECT: Dougherty Valley Affordable Housing Program
SPECIFIC REQUEST(S) OR RECOMMENDATIONS(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
With respect to the Dougherty Valley Affordable Housing Program:
1. CONSIDER report and recommendations from the Director of Community Development regarding:
a) Amendments to the Dougherty Valley Affordable Housing Program
relative to Moderate Income Rent and Moderate Income Rental Term;
b) Acknowledge receipt of form of implementation documents, including:
• Regulatory Agreement for rental projects;
• Disclosure Form to be used to inform Dougherty Valley homebuyers/tenants of the mixed
income nature of the Dougherty Valley Development Program;
• Proposed form of Condition of Approval for future entitlement actions with respect to the
affordable housing obligation;
• Proposed form of Homebuyer Certification for moderate, low, and very low-income
homebuyers; and
2. FIND Shapell Industries of Northern California in compliance with the Dougherty Valley Affordable
Housing Program as.of October 1, 1999 and October 1, 2000;
3. APPROVE &AUTHORIZE the.Chair to execute an Agreement to Amend Affordable Housing Program
with both Shapell Industries of Northern California, and Windemere BLC Land Company, LLC, which
Agreement attests to the parties concurrance with the aforementioned modifications to the Dougherty
Valley Affordable Housing Program, and the documents to implement its terms;
4. APPROVE AND AUTHORIZE the Director of Community Development,or his designee,to enter into the
following Regulatory Agreements for Moderate Income Units:
With Shapell for the Falcon Bridge project (Moderate Income Units);
• With Windemere BLC for Project#1 (Moderate Income Units west of Bollinger Canyon
Road, south of Albion Way);
• . With Windemere BLC for Project#2 (Moderate Income Units west of Bollinger Canyon
Road, south of Harcourt Way); and
• With Windemere BLC for Project #3 (Very Low/Low Income Units west of Bollinger
Canyon Road, south of Windemere Parkway and north of Harcourt Way).
FISCAL IMPACT
None. No general funds involved.
CONTINUED ON ATTACHMENT: _X_ SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMNf NDATION OF 6 ARD
COMMITTEE APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON APPROVtD AS RECOMMENDED
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT ) TRUE AND CORRECT COPY OF AN
AYES: NOES:_ ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Source: Jim Kennedy
335-1255 ATTESTED
JOHN SWEETEN, CLERK OF THE
cc: County Administrator's Office BOARD OF SUPERVISORS AND
County Counsel .COUNTY ADMINISTRATOR
Community Development-Land Development
Community Development-Housing
BY , DEPUTY
WAPersonaRBOARDORDERM10.2.01.doughertyvalley 1
'r
BACKGROUND
On August 7, 2001 the Board accepted the report of the Director of Community Development regarding the
Dougherty Valley Affordable Housing (DVAHP) Program, and Shapell Industries compliance with said program.
The Board also declared it would find Shapell in compliance with the DVAHP for the years 1999 and 2000,
conditioned upon receipt of implementing documents and conditions of approval,which are enclosed herewith,for
the Board's consideration. On October 2, 2001 the Board continued the matter to October 16'h with direction to
staff to prepare and seek developer concurrence on a form of Agreement that would obligate the parties to a
modified DVAHP, and clarify the implementing documents.
Dougherty Valley Affordable Housing Program Agreement
Both Shapell and Windemere portions of the Dougherty Valley development are subject to Development
Agreements. Among other things, the Development Agreements require compliance with the DVAHP. The
Development Agreements also require that the Shapell and Windemere projects in Dougherty Valley be
undertaken consistent with the terms and conditions of a May 11, 1994 Agreement to Settlement Litigation
between the County,the City of San Ramon,the Town of Danville,and the Shapell and Windemere development
interests. This Settlement Agreement provides that the DVAHP may be amended with the written agreement of
the County, Shapell, and the Windemere owner(now Windemere BLC Land Company, LLC).
An Agreement to Amend Affordable Housing Program (Exhibits E-1 and E-2)has been developed to attest to the
agreement of the parties. The Agreement to Amend Affordable Housing Program for Shapell is Exhibit E-1,and
Windemere BLC is Exhibit E-2. Both developer parties are agreeable to the form and have executed their
Agreement,and staff recommends the Board of Supervisors approve and authorize execution of the Agreements
to Amend Affordable Housing Program concurrent with the other actions before you.
Modifications to the Dougherty Valley Affordable Housinq Program—Moderate Income Rental Component.
In its action of August 7,2001 the Board directed that the staff to return with amendments to the Dougherty Valley
Affordable Housing Program relative to the Moderate Income Rental Component. Staff recommends that:
1. Section III, Definition of"Moderate Income Rent"be amended so that it"means the lesser of(1)
the monthly market rate rent; or (2) a monthly rent which is no greater than 30% of 100% of
Median Monthly Income for a one person household,including a Utility Allowance,for studio units;
a monthly rent which is no greater than 30%of 110%of.Median Monthly Income for a two-person
household, including a Utility Allowance for one-bedroom units; no greater than 30%of 120%of
Median Monthly Income for a three person household, including a Utility Allowance for two-
bedroom units; and no greater than 30%of 120%of Median Monthly Income for a four-person
household, including a Utility Allowance for three-bedroom units'; and
2. Amend Section V(B)(2)—Affordability Term, Moderate Income Units as follows:
"Moderate Income Units"shall be maintained as such for the following minimum terms:
a) For sale Moderate Income Units shall be maintained as affordable for the term
governed by its subsidy source. Since the Dougherty Valley Affordable Housing
Program has been developed such that there is no expectation of public
participation as defined below, the Moderate Income for-sale units are not
generally expected to have an affordability term.
b) For rent Moderate Income units and specialized facilities with Affordable Units
shall be maintained as such for a minimum of thirty (30) years if the project is
subject to public participation (which term means the provision of financial
assistance by a public agency in the form of,among other things,a loan,grant,
loan guarantee, the waiver of fees and/or the modification of development
standards solely to enhance the affordability of the units, etc.), and twenty(20)
years if no public financial participation (as defined above) is provided.
Developers/Owners of Moderate Income rental units and specialized facilities
shall enter into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the development.
"Nothing in the foregoing shall prelude the achievement of a longer term of affordability as may be
negotiated or required by financing sources."
WAPersonahBOARDORDERM I 0.2.01.doughertyvallcy 2
Proposed Form of Implementing Documents
The form of documents implementing the terms of the DVAHP, and the Board's recent directives are
provided as follows:
1. Regulatory Agreement and Declaration of Restrictive Covenant,which is a recorded instrument
which runs with the land for their term are included as Attachment A-1 (Very Low/Low Income
Projects),and Attachment A-2(Moderate Income Projects). These are intended to be standard
forms to be executed by the parties and recorded in substantially the form provided.
2. Certification of Homebuyer Eligibility(Attachment B)would be completed and executed by each
applicable homebuyer of a Very Low Income, Low Income, or Moderate Income for-sale unit.
3. A Disclosure Form to be signed by each Dougherty Valley homebuyer,after receipt of disclosure
information, is included as Attachment C.
4. The issue of obtaining certainty with respect to the securement of sites for Very Low Income and
Low Income housing was identified. The desire was to achieve a level of certainty with respect to
delivery of such units in the approved and/or pending phases that is commensurate with the
degree of entitlement certainty being obtained by the developer. A form of Condition of Approval
for a final map approval are included as Attachment D-1. A form of Condition of Approval for a
Final Development Plan is included as Attachment D-2.
Subsequent to the Board's action staff met with County Counsel, the developer's, and their counsel to craft the
Affordable Housing Program Agreement and finalize the language of documents. This report and.set of
recommendations responds to the Board's direction. In addition, the developers have executed and submitted
Regulatory Agreements for the following projects:
• Shapell for the 256 unit Falcon Bridge Moderate Income project;
• W indemere BLC for Project#1,and Project#2,which total 650 Moderate Income units;and
• Windemere BLC for Project#3, a Very Low/Low Income development of 350 units.
Additional Information Regarding Compliance Matters
Three additional matters related to compliance were reviewed as to status and included in the October 2nd report to
the Board. For completeness they are repeated here without alteration. They are:
1. As of September 24, 2001 Shapell had submitted eight (8) lender certifications regarding
'Moderate Income Homebuyer sales to date. A preliminary review of the Lender Certification
indicates that all eight (8) homebuyers comply and are fully eligible as Moderate Income
Households. Future homebuyers must complete and execute a Homebuyer Certification
(Attachment B).
2. As of September 24, 2001 Shapell had submitted 61 rental applications from current tenants.
Occupancy of the Falcon Bridge apartments is ongoing. Staff has completed a preliminary
assessment of the information. Each existing tenant will be requested to execute a certificate of
Household Eligibility(Appendix C to Regulatory Agreement)once the DVAHP provisions for rent
and term for Moderate Income units have been determined by the Board. A transition period for
current tenants may be required depending on current lease terms.
3. "Initial Level of Development" Considerations
The Dougherty Valley Settlement Agreements provide for specified performance standards to be
achieved in the traffic area in order to build beyond 8,500 units(the"Initial Level of Development"
as defined in the Settlement Agreement). The County has expressed concern that the delivery of
affordable housing at the Initial Level of Development be proportionate to the DVAHP
requirements.
The annual review process, including the requirement of a finding of compliance with the
Dougherty Valley Affordable Housing Program in order to proceed with the processing and
issuance of subsequent entitlements is the mechanism for achieving this goal. Shapell has
proposed that prior to the issuance of the 3,900" building permit in Gale Ranch, Shapell
demonstrate that it will be within 10%of the 25%affordable housing goals for the Shapell share
of an 8,500 unit project. This will give the County and Shapell some 600 units to integrate the
remaining affordable units if Shapell is not already at 100%.
In addition,at the Board hearing of October 2,2001 a discussion was held regarding the magnitude of Moderate
Income Rents that would be permitted under the DVAHP with proposed modifications. Reference was made to
prior information provided to the Board by report of June 26, 2001, which report characterized the relationship
between current market rents,and the rent levels possible under the various definitions of"Moderate Income Rent
under discussion."
In response to the discussion staff offers the following clarification. The definition of Moderate Income Rent is"the
lesser of (1) the market rent;" or (2) the calculated rents based on Area Median Income. In no case could an
affordable Moderate Income Rent exceed the market rent for the same unit rented concurrently. If market rents
increase faster than Area Median Income (which has been the trend for some time) the affordable Moderate
Income Rents will drop to a below market rate. It they move together the relationship stays the same. If incomes
rise faster than rents the maximum rent stays capped by the market.
W:\Pcrsonal\BOARDORDERS\10.2.01.doughcrtyvallcy 3
ATTACHMENT A-1
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Very Low/Low Income Projects)
WAPersonaRBOARDORDERM10.2.01.doughertyvalley 4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Street,411,Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[LOW/VERY LOW INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
we-59473
10/10/01
TABLE OF CONTENTS
Section 1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition, Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ...........................................................................................5
Section 4. Low/Very Low Income Households/Rents. ...............................................................6
Section5. Indemnification.................................................................................................................9
Section6. Consideration....................................................................................................................9
Section7. Reliance..............................................................................................................................9
Section 8. Sale or Transfer of the Project.......................................................................................10
Section9. Term..................................................................................................................................10
Section 10. Covenants to Run With the Land...............................................................................10
Section 11. Burden and Benefit............:...........................................................................................11
Section 12. Uniformity;Common Plan..........................................................................................11
Section 13. Enforcement...................................................................................................................11
Section 14. Recording and Filing....................................................................................................1.2
Section15. Payment of Fees............................................................................................................12
Section16. Governing Law. ............................................................................................................7.2
Section17. Amendments.................................................................................................................12
Section18. Notice..............................................................................................................................12
Section19. Severability....................................................................................................................13
Section 20. Multiple Counterparts. ................................................................................................13
EXHIBIT A- DESCRIPTION OF PROJECT SITE
EXHIBIT B -STATISTICAL REPORT TO COUNTY
EXHIBIT C- CERTIFICATE OF HOUSEHOLD ELIGIBILITY
EXHIBIT D- CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHI BIT E-COMPLETION CERTIFICATE
-i-
wc-59473
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the"Regulatory Agreement") is dated as of October 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community.in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS,in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994,
and amended such program on 2001 (as so amended,the "DVAHP"); and
WHEREAS,on 2001, County and Owner entered into that certain
Agreement to Amend Affordable Housing Program,pursuant to which agreement.Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Goveriunent Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and, under the terms of Owner's Development
Agreement with County,is entitled to develop, among other things, up to 5,170 dwelling units
on the Property in accordance with the Specific Plan and subject to the terms and
provisions of, among other things, that certain May 11, 1994 Agreement to Settle Litigation
between the County, the Town of Danville, the City of San Ramon,Shapell Industries, Inc., and
Windemere Ranch Partners,which Settlement Agreement imposes certain conditions to the
development of more than 8500 dwelling units within the Dougherty Valley (the
Project");
WHEREAS,in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
Project (the "Tentative Map") and, on , 2001, approved a large-
lot final subdivision map (the "Final Map"),which Final Map has been recorded in the Official
we-59473
Records of Contra Costa County and which creates certain parcels within "Area A" as shown on
the'rentative Map for the construction of rental units;
WHEREAS, Parcel_as shown on the Final Map is a_-acre parcel upon which
Owner intends to construct rental units to be rented to low and very low income
households as more fully provided below (collectively, the "Low Income Units" and the "Very
Low Income Units," respectively).
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged,the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low, Low, and Moderate Income Households on the Property. The
Dougherty Valley Specific Plan requires that 25% of the units on the Property
be Affordable Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Completion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAI4P" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on
2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
2
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"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
"Lower Inconie" means generically all households of Very Low, Low, and Moderate
Income.
"Low Income Hoitseliolds" means households whose annual incomes are from 51 to (and
including) 80 percent of the Contra Costa County Median Income, as adjusted for family size
and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Lozu Income Rent"means the lesser of(1) the monthly market rate rent, including a
Utility Allowance; or (2) a monthly rent which is no greater than one hundred percent (100%)
of the Section 8 Existing Program Fair Market Rents, established in accordance with 24 CFP.
Part 882, effective at the time of occupancy,less the Utility Allowance then in effect.
"Low Income Units"means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by, Low Income Households.
"Median Income" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Montlily Inamie" means 1/12 of the Median Income.
"Moderate Income Households" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of (1) the monthly market rate rent; or (2) for
studio units, a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income,including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance;for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Lncome, including a Utility Allowance; and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income, including a Utility
Allowance. Rents for studio units shall be calibrated utilizing the one-person Median Income
Household 'income; one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income, etc.
"Owner" means and its successors and assigns, as owner of the
Project Site.
"Project" means the [Low][Venj Lozu] Income Units to be constructed by Owner on
the Project Site.
3
we-59473
"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with, such buildings, structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A,which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period begiruning on the date the Completion
Certificate is delivered to County and ending on the date which is thirty (30) years after the
elate on which at least fifty percent (50%) of the dwelling units in the Project were first
occupied.
"Regulatory Agreenient" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
"Utility Allowance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
"Venj L07V Income Households" means households whose annual incomes do not exceed
50 percent of the Contra Costa County Median Income for Contra Costa County, as adjusted for
family size and published by the State Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Vern Low.Income Rent" means a monthly rent, which is no greater than 30% of 50% of
the Median Monthly Income including a Utility Allowance. Rents for studio units shall be
calibrated utilizing the one-person Very Low Income Household income; one-bedroom units
shall use a two-person Very Low Income Households income, two-bedroom units shall use a
three-person Very Low Income Households income, etc.
"Very Low In.conie Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by,Very Low Income Households.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine,.feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa,when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition, Construction,Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as follows:
(a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
4
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(b) The Owner reasonably expects to complete the construction of the Project
by , 200^.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take, as applicable, any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned, managed and operated as a residential rental project for a term equal to the Qualified
Project Period.To that end, and for the term of the Qualified Project Period,the Owner hereby
represents, covenants,warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Low and Very Low Income Households, and the Owner
will own, manage and operate the Project as a project to provide multifamily residential
rental property to Low and Very Low Income Households.
(b) All of the dwelling urdts in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living,sleeping, eating,cooking and sanitation for a single person or a
family,including a sleeping area, bathing and sanitation facilities and cooking facilities
equipped with a cooking range,refrigerator and sink.
(c) Owner shall include,in any and all rental agreements,provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel,motel, dormitory,fraternity house, sorority house,rooming house,nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Low or Very Low Income Households.
5
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(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road,street or stream, and all of the Project Facilities will
comprise a single geographically and functionally integrated project for residential
rental property, as evidenced by the ownership, management, accounting and operation
of the Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units.
(i) During the Qualified Project Period, Owner will not discriminate on the
basis of race, creed,color, sex, sexual orientation, national origin or ancestry,religion,
marital.status, age, disability, source of income or receipt of public assistance or housing
assistance ii connection with the rental, use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. f Lowl[Venl Lozu) Income Households/Rents. Owner hereby represents,
warrants and covenants as follows:
(a) Commencing on the Completion Date, [Low][Very Lozu]shall occupy
percent (_%) of all completed and occupied units in the Project; and for
the Qualified Project Period no less than_% of the total number of completed units of
the Project shall at all times be rented to and occupied by [LOw][Venlf Lozu] Income
Households. For the purposes of this paragraph (a), a vacant unit which was most
recently occupied by a [Low][Venj Lozu]Income Household is treated as rented and
occupied by a [Lou][Venj Lowl Income Household until reoccupied. Tenants in the
[Lozul[Venj Lozu] Income Units will have equal access and enjoyment to all common
facilities of the Project.
(b) The rents for the [LOw][Venj Lozu] Income Units shall not exceed the
[L07171[Veny Low] Income Rent,respectively.
(c) No tenant qualifying as a [Low][Very Lozu]Income Household shall be
denied continued occupancy of a unit in the Project because, after admission, such
tenant's Adjusted Income increases to exceed the qualifying limit for [Low][Venj Lozu]
Income Households; provided,however, that should a [Very Low, LOW] Income
Household's Adjusted Income, as of the most recent determination thereof, exceed one
hundred forty percent(140%) of the applicable income limit for a [Very Low, LOW]
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Income Household of the same family size, the next available unit of comparable or
smaller size must be rented to (or held vacant and available for immediate occupancy
by) a [Very Lozv, Lozv] Income Household; and provided further that, until such next
available unit is rented to a [Vefy Low, Lozv]Income Household, the former [Venj Lozu,
Lvzv]Income Household who has ceased to qualify as such shall be deemed to continue
to be a [Very Low, Low] Income Household for purposes of the percent(_%)
requirement of Section 4(a) hereof until the next available unit of comparable or smaller
size is rented to a qualifying[Very Low, Lozv]Income Household.
(d) The Owner will obtain,complete, and maintain on file Income
Certifications from each [Low][Very Lozv] Income Iousehold in the form attached hereto
as Exhibit C. dated no more than thirty (30) days prior to the initial occupancy of such
[Low][Very Lozv] Income Household in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner will also obtain,complete,and maintain on file an
annual Income Certification from each [Very Low, Lozv] Income Household, dated the
anniversary of the date of initial occupancy in the Project by such[Vefy Lozv, Lozv]
Income Household. A copy of the most recent Income Certification for [Venj Low, Lozu]
Income Household commencing or continuing occupation of a [Venj Lozv, Lozv] Income
Unit shall be attached to each report to be filed with the County. The Owner shall make
a good faith effort to verify that the income provided by an applicant in an Income
Certification is accurate by taking one or more of the following steps as a part of the
verification process: (1) obtain a pay stub for the most recent three months, (2) obtain an
income tax return for the most recent tax year, (3) conduct a TRW Credit Bureau or other
similar search, (4) obtain an income verification from the applicant's current employer,
(5) obtain an income verification from the Social Security Administration and/or the
California Department of. Social Services if the applicant receives assistance from either
of such agencies, or (6) if the applicant is unemployed and does not have an income tax
return, obtain another form of independent verification. The Owner shall also engage in
a review of bank statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
[Lozv][Venj Lozu] Income Units, and will permit any duly authorized representative of
the County to inspect the books and records of the Owner pertaining to the Project,
includit1g those records pertaining to the occupancy of the [Lozv][Venj Lozv] Income
Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent (95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of. Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,by [Lozu][Very Low]
Income Households during such period; (ii) that either (A) no unremedied default has
occurred under this Regulatory Agreement or (B) a default has occurred, in which event
the certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
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(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a [Low][Veny Lozu] Income
Unit shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the [Low][Venj Lozo] Income
Household in determining qualification for occupancy of the [Low][Venj Lozv] Income
Unit, and that any material misstatement in such certification (whether or not
intentional) will be cause for immediate termination of such lease or rental agreement.
Each such lease or rental agreement shall also provide that the tenant's income is subject
to annual certification in accordance with Section 4(d) hereof and that if upon any such
certification such tenant's Adjusted Income exceeds one hundred forty percent (140%) of
the applicable income limit for a [LOu)I[Venj Low] Income Tenant of the same family size,
such tenant shall,subject to (b) above, cease to qualify as a[Very LOW, Low]Income
Tenant, and such tenant's rent is subject to increase. A lease addendum setting forth
procedures for handling changes in tenant status shall be part of each lease agreement.
(i.) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County, but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period,Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiation or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
[LOWI[Very Lozu] Income Unit at the date of expiration or termination, and at a rent not
greater than the amount set forth in Section 4(b),until the earliest of any of the
following occurs: (1) the household's income exceeds 140 percent of the maximum
eligible income for [Low][Very LozV�J Income Households; (2) the household voluntarily
moves or is evicted for "good cause" ("good cause" for the purposes of this subsection,
means the nonpayment of rent or facts necessary to prove major, or repeated minor,
violations of material provisions of the occupancy agreement which detrimentally affect
the health and safety of other persons or the structure, the fiscal integrity of the Project,
or the purposes or special programs of the Project); (3) two years after the expiration of
the Qualified Project Period;or (4) Owner pays the relocation assistance and benefits to
tenants as provided in subdivision (b) of Section 7264 of the Government Code. During
the three years prior to expiration of the Qualified Project Period, Owner shall continue
to make available to eligible households [Low][Venj Lozu] Income Units that have been
vacated to the same extent that nonreserved units are made available to noneligible
households.
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(1) All tenant lists, applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
shall be maintained as required by the County, in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing, but (i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local,state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify
and hold harmless the County and its officers, directors, officials, employees and agents from
and against any and all claims made by any person (including claims for reasonable attorneys'
fees and costs) arising from any act or omission of the Owner or any of its agents,contractors,
servants,employees or licensees in connection with the design,construction, installation,
operation,use, occupancy,maintenance, or ownership of the Project (including any failure to
comply with laws,ordinances, rules or regulations of public authorities relating thereto or the
terries an d provisions of this Agreement); except to the extent any such claim arises from the
sole negligence of the County. In the event that any such claim, action or proceeding is brought
against the County or any of its officers,directors, officials, employees or agents, with respect to
which indemnity may be sought hereunder, the Owner, upon written notice from County,shall
assume the investigation and defense thereof,including the employment of counsel and the
payment of all expenses. County shall have the right to employ separate counsel in any such
action or proceedings and to participate in the defense thereof, and Owner shall pay the
reasonable fees and expenses of such separate counsel;provided that County shall have the
right to review and reasonably approve or disapprove any compromise or settlement. The
provisions of this Section 5 shall survive the term of this Regulatory Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose, among others, of inducing Owner to develop the Project Site and, construct, equip
and operate the Project with [Lozo][Very Lozo] Income Urnits. In consideration of these
development approvals by the County, the Owner has entered into this Regulatory Agreement
and has agreed to restrict the uses to which this Project can be put on the terms and conditions
set forth herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of the [Lou;][Venj Low] Income Households and upon
audits of the books and records of the Owner pertaining to the Project. In determining whether
any default or lack of compliance by the Owner exists under this Regulatory Agreement, the
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County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof (other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),without obtaining the prior written consent of the County, which consent of the
County shall be given upon receipt by the County of(i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large mixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable,financially and otherwise, of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain iun full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement,the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof;provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement. The County and the Owner hereby declare their express intent that the
covenants, reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however, that on the termination of this Regulatory Agreement said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants,reservations and
restrictions, regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by [Low][Ve1y Lozv] Income Tenants, the intended beneficiaries of such
covenants, reservations and restrictions,and by furthering the public purposes for which the
project was approved.
Section 12. Uniformity;Common Plan. The covenants,reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a coirunon
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner,then County may declare an"Event of Default" to have
occurred hereunder,provided,however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days,such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
Owner hereby grants to the County the option,upon the expiration of 60 days after the
giving of the notice to Owner of Owner's default under this Regulatory Agreement, until the
expiration of the Qualified Project Period or the termination of this Regulatory Agreement,
whichever first occurs, to lease up to percent (_%) of the units in the Project for a rental
of$1.00 per unit per year for the purpose of subleasing such units to [Low][Very L ozv] Income
Households,but only to the extent necessary to comply with the provisions of Section 3 and
Section 4. The option granted in the preceding sentence shall be effective only if the Owner has
not instituted corrective action within such 60-day period. Upon the achievement,by the
Owner or the County, of compliance with the requirements of Section 3 and Section 4,County
and Owner will terminate any lease entered into between Owner and County pursuant to this
section and County shall assign to Owner any subleases entered into by County hereunder. In
the event County exercises its option hereunder, the County shall make diligent effort to
sublease [Lozv][Very Low]Income Units to [Lowi[Venj Lozv]Income Households for monthly
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rental amounts equivalent to those collected from tenants of similar units in the Project but,
provided County exercises such diligent efforts,shall not be required to obtain such rental
amounts. Any rental paid under any such sublease shall be paid to the Owner after County has
been reimbursed for any expenses incurred in connection with such sublease. All fees,costs
and expenses of the County incurred in taking any action pursuant to this Section shall be the
sole responsibility of the Owner. The Owner hereby agrees that specific enforcement of the
Owner's agreements contained herein is the only means by which the County may obtain the
benefits of such agreements made by the Owner herein and the Owner therefore agrees to the
imposition of the remedy of specific performance against it in the case of any default by the
Owner hereunder. The remedies set forth in this Section 13 shall be County's exclusive
remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 1.5. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal the greater of i) $5,000/year; or ii) $75.00/[LOW][Ven/Lozv] Income
Unit/year, payable in advance in annual installments commencing on and
continuing each thereafter,until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 1.6. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 1.7. Amendments.
(a) This Regulatory Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Contra Costa,California. The parties requesting such amendment shall
notify the other parties to this Regulatory Agreement of the proposed amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered mail,postage prepaid,return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor,North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
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Notice shall be deemed given three business days after the date of mailing.
Section 1.9. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts,all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
13
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
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State of California )
ss
County of )
On before me, ,Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted,executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of[Very Low, Low, Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (1.2) month period.is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom[Very Low, Low, Moderate] Income Units is
6. The number of one-bedroom[Very Low, Low,Moderate] Income Units is
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7. The number of former [Very Low, Low] Income Households whose Adjusted Income
has exceeded 140% of the applicable income limit for a [Very Low, Low] Income
Households of the same family size and have therefore ceased to qualify as [Very Low,
Low] Income Iouseholds is
Owner:
6y:
Its:
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn,state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household IIousehold Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-.month period
beginning on the later of the date on which the above persons first occupy the apartment or
sign a lease with respect to the apartment,including income described in (a)below,but
excluding all income described in (b) below, is$
(a) The amount set forth above includes all of the following income (unless
such income is described in (b) below):
(i) all wages and salaries,over-time pay,commissions,fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
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business or profession, except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security,annuities,i insurance policies, retirement funds,pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sure
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities, plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances,such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit;and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets,such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation), capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees,books, equipment, materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS);or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment, clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary, nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons.described in column 1 above (or any person whose income
or contributions were included in item 6) has any savings, stocks,bonds, equity in real property
or other form of capital investment (excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $ , and
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project-and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income, may be heated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than S5,000,enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
I1. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line l(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
C-5
Svc-59473
IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Mediad Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
C-6
we-59473
EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
in the Project (i) are occupied by [Very Low, Low, Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low,Low, Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
D-1.
we-59473
EXHIBIT E
.COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either.for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
E-1
we-59473
ATTACHMENT A-2
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Moderate Income Projects)
WAPersonaRBOARDORDERM10.2.01.doughertyvalley 5
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUN'T'Y
COMMUNITY DEVELOPMENT DEPARTMENT
651.Pine Street,411,Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-.Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[MODERATE INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
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10/10/01
TABLE OF CONTENTS
Section 1. Definitions and Interpretation.........................................................................................2
Section 2. Acquisition, Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ...........................................................................................4
Section 4. Moderate Income Households/Rents. ..........................................................................5
Section5. IndemniEication.................................................................................................................8
Section6. Consideration....................................................................................................................8
Section7. Reliance..............................................................................................................................8
Section 8. Sale or Transfer of the Project.........................................................................................9
Section9. Term....................................................................................................................................9
Section 1.0. Covenants to Run With the Land.................................................................................9
Section 11. Burden and Benefit.......................................................................................................10
Section 12. Uniformity; Common Plan...........................................................................................10
Section13. Enforce.ment...................................................................................................................10
Section 14. Recording and Filing....................................................................................................11
Section 15. Payment of Fees............................................................................................................11
Section16. Governing Law. ............................................................................................................1.1
Section17. Amendments.................................................................................................................1"1
Section18. Notice..............................................................................................................................11
Section19. Severability....................................................................................................................12
Section 20. Multiple Cou.nterparts. ................................................................................................12
EXHIBIT A- DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATION OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
i-
wc-59065
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the"Regulatory Agreement") is dated as of October J 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1.996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable].lousing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherhj Valley Affordable Housing Program on March 24, 1994, and
amended such program on 2001 (as so amended, the "DVAHP"); and
WHEREAS, on ,2001, County and Owner entered into that certain
Agreement to Amend Affordable Housing Program,pursuant to wluch agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and,under the terms of Owner's
Development Agreement with County, is entitled to develop, among other things,up to
dwelling units on the Property in accordance with the Specific Plan and
subject to the terms and provisions of, among other things, that certain May 11, 1994 Agreement
to Settle Litigation between the County, the Town of Danville,the City of San Ramon,Shapell.
Industries, Inc. and Windemere Ranch Partners, which Settlement Agreement imposes certain
conditions to the development of more than 8500 dwelling units within the Dougherty Valley
(the Project");
WHEREAS,in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
_ Project (the "Tentative Map") and, on , 2001, approved a final.
subdivision map (the "Final Map"),which Final Map has been recorded in the Official Records
we-59065
of Contra Costa County and which creates certain parcels within"Area A" as shown on the
Tentative Map for the construction of rental units;
WHEREAS,Parcel—as shown on the Final Map is a--acre parcel upon which
Owner intends to construct_rental.units to be rented to.moderate income households as
more fully provided below (collectively, the "Moderate Income Units").
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the marmer prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low, Low,and Moderate Income Households on the Property. The Dougherty
Valley Specific Plan requires that 25% of the units on the Property be Affordable
Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Cotnpliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Completion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
.Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Contpletion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on 2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
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"Median Inconte" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Montlily Income" means 1/12 of the Median Income.
"Moderate Incotne Houseltolds" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of (1) the monthly market rate rent; or (2) for
studio units, a .monthly rent which is no greater than 30% of 1.00% of the Median Monthly
Income,including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income,including a Utility Allowance;for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income, including a Utility Allowance; and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income, including a Utility
Allowance. Rents for studio units shall be calculated utilizing the one-person Median Income
Household income;one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household 'income,etc.
"Moderate Income Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by, Moderate Income Households.
"Ozoner" means and its successors and assigns, as owner of the
Project Site.
"Project" means the Moderate Income Units to be constructed by Owner on the
Project Site.
"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with, such buildings,structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A, which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is twenty (20) years after the
date on which at least fifty percent(50%) of the dwelling units in the Project were first
occupied. [20-year Qualified Project Period Assumes no public participation as defined in revised
DVAHP.]
"Regulatonj Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
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"Utilihl A.11071)atice" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
Uiiless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine, feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa, when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction,Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as follows:
(a) Subject to market conditions, Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
(b) The Owner reasonably expects to complete the construction of the Project
by 200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take, as applicable, any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement in the form attached as Exhibit D.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned,managed and operated as a residential rental project for a term equal to the Qualified
Project Period. To that end, and for the term of the Qualified Project Period, the Owner hereby
represents, covenants, warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Moderate Income Households, and the Owner will own,
manage and operate the Project as a project to provide multifamily residential rental
property to Moderate Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living, sleeping, eating, cooking and sanitation for a single person or a
4
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family,including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink.
(c) Owner shall include, in any and all rental agreements,provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel, motel, dormitory, fraternity house, sorority house,rooming house,nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownerslup or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Moderate Income Households.
(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road, street or stream, and all of the Project Facilities comprise
a single geographically and functionally integrated project for residential rental
property, as evidenced by the ownership, management, accounting and operation of the
Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units. [For mixed-
incoine projects only.]
(i) During the Qualified Project Period,Owner will not discriminate on the
basis of race,creed, color,sex, sexual orientation,national origin or ancestry,religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental,use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. Moderate Income Households/Rents. Owner hereby represents, warrants
and covenants as follows:
5
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(a) Commencing on the Completion Date,Moderate Income Households
shall occupy percent(_%) of all completed and occupied units in the
Project; and for the Qualified Project:Period no less than_% of the total number of
completed units of the Project shall at all times be rented to and occupied by Moderate
Income Households. For the purposes of this paragraph (a), a vacant unit which was
most recently occupied by a Moderate Income Household is treated as rented and
occupied by a Moderate Income Iousehold until reoccupied.Tenants in the Moderate
Income Units will have equal access and enjoyment to all common facilities of the
Project.
(b) The rents for the Moderate Income Units shall not exceed the Moderate
Income Rent.
(c) No tenant qualifying as a Moderate Income Household shall be denied
continued occupancy of a urdt in the Project because, after admission, such tenant's
Adjusted Income increases to exceed the qualifying limit for Moderate Income
Households.
(d) The Owner will obtain, complete, and maintain on file Income
Certifications from each Moderate Income Household in the form attached hereto as
Exhibit C.dated no more than thirty (30) days prior to the initial occupancy of such
Moderate Income Household in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner shall make a good faith effort to verify that the
income provided by an applicant in an Income Certification is accurate by taking one or
more of the following steps as a part of the verification process: (1) obtain a pay stub for
the most recent three months, (2) obtain an income tax return for the most recent tax
year, (3) conduct a TRW Credit Bureau or other similar search, (4) obtain an income
verification from the applicant's current employer, (5) obtain an income verification
from the Social Security Administration and/or the California Department of Social
Services if the applicant receives assistance from either of such agencies, or (6) if the
applicant is unemployed and does not have an income tax return,obtain another form
of independent verification. The Owner shall also engage in a review of bank
statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
Moderate Income Units, and will permit any duly authorized representative of the
County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the Moderate Income Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent (95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied.or treated as occupied pursuant to subsection (a) hereof,.by Moderate Income
6
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I
Households during such period; (ii) that either (A) no unremedied default has occurred
under this Regulatory Agreement or (B) a default has occurred, in which event the
certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a Moderate Income Unit
shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the Moderate Income Household
in determining qualification.for occupancy of the Moderate Income Unit, and that any
material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease or rental agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period,Owner shall provide the notices as and to the extent required by Section
65863.1.0 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu.of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
Moderate Income Unit at the date of expiration or termination,and at a rent not greater
than the amount set.forth in Section 4 (b),until the earliest of any of the following
occurs: (1.) the household's income exceeds 140 percent of the maximum eligible income
for Moderate Income Households; (2) the household voluntarily moves or is evicted for
"good cause" ("good cause"for the purposes of this subsection, means the nonpayment
of rent or facts necessary to prove major, or repeated minor, violations of material
provisions of the occupancy agreement which detrimentally affect the health and safety
of other persons or the structure, the fiscal integrity of the Project, or the purposes or
special programs of the Project); (3) two years after the expiration of the Qualified
Project Period; or (4) Owner pays the relocation assistance and benefits to tenants as
provided in subdivision (b) of Section 7264 of the Government Code. During the three
years prior to expiration of the Qualified Project Period,Owner shall continue to make
available to eligible households Moderate Income Units that have been vacated to the
same extent that nonreserved units are made available to noneligible households.
. (1) All tenant lists, applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
7
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shall be maintained as required by the County, in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of. the County may be expressly waived by the
County in writing,but (i)no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local,state or federal law.
Section 5. h-idemnification. Owner hereby covenants and agrees that it shall indemnify,
defend and hold harmless the County and its officers,directors,officials,employees and agents
from and against any and all claims made by any person (including claims for reasonable
attorneys' fees and costs) arising from any act or omission of the Owner or any of its agents,
contractors, servants,employees or licensees in connection with the design,construction,
installation, operation,use, occupancy,maintenance, or ownership of the Project (including any
failure to comply with laws, ordinances, rules or regulations of public authorities relating
thereto or the terms and provisions of this Agreement);except to the extent any such claim
arises from the sole negligence of the County. In the event that any such claim, action or
proceeding is brought against-the County or any of its officers, directors, officials, employees or
agents, with respect to which indemnity may be sought hereunder, the Owner, upon written
notice from County, shall assume the investigation and defense thereof,including the
employment of counsel and the payment of all expenses. County shall have the right to employ
separate counsel in any such action or proceedings and to participate in the defense thereof,
and Owner shall pay the reasonable fees and expenses of such separate counsel;provided that
County shall have the right to review and reasonably approve or disapprove any compromise
or settlement. The provisions of this Section 5 shall survive the term of this Regulatory
Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose,among others, of inducing Owner to develop the Project Site and, construct, equip
and operate the.Project with Moderate Income Units. In consideration of these development
approvals by the County, the Owner has entered into this Regulatory Agreement and has
agreed to restrict the uses to which this Project can be put on the terms and conditions set forth
herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of the Moderate Income Households and upon audits of
the books and records of the Owner pertaining to the Project. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, the
County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
8
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respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County), without obtaining the prior written consent of the County,which consent of the
County shall be given.upon receipt by the County of(i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and u1 full, the
Owner's duties and obligations under this Regulatory Agreement (which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large mixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable, financially and otherwise, of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof;provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement. The County and the Owner hereby declare their express intent that the
covenants,reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however, that on the termination of this Regulatory Agreement said covenants,reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants,reservations and
restrictions,regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and 'intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by Moderate Income Tenants, the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the public purposes for which the project was
approved.
Section 12..Uniformit�Commoin Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an "Event of Default" to have
occurred hereunder,provided,however,that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days, such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
The Owner hereby grants to the County the option, upon the expiration of 60 days after
the giving of the notice to Owner of the Owner's default under this Regulatory Agreement,
until the expiration of the Qualified Project Period or the termination of this Regulatory
Agreement, whichever first occurs, to lease up to percent(_%) of the units in the
Project for a rental of$1.00 per unit per year for the purpose of subleasing such units to
Moderate Income Households,but only to the extent necessary to comply with the provisions
of Section 3 and Section 4. The option granted in the preceding sentence shall be effective only
if the Owner has not instituted corrective action within such 60-day period. Upon the
achievement,by the Owner or the County, of compliance with the requirements of Section 3
and Section 4, County and Owner will terminate any leases entered into between Owner and
County pursuant to the option provided herein and County shall assign to Owner any
subleases entered into by County hereunder. In the event County exercises its option
hereunder, the County shall make diligent effort to sublease Moderate Income Units to
Moderate Income Households for monthly rental amounts equivalent to those collected from
10
Svc-59065
tenants of similar units in the Project but,provided County exercises such diligent efforts, shall
not be required to obtain such rental amounts. Any rental paid under any such sublease shall
be paid to the Owner after County has been reimbursed for any expenses incurred in
connection with such sublease. All fees,costs and expenses of the County incurred in taking
any action pursuant to this Section shall be the sole responsibility of the Owner. The Owner
hereby agrees that specific enforcement of the Owner's agreements contained herein is the only
means by which the County may obtain the benefits of such agreements made by the Owner
herein and the Owner therefore agrees to the imposition of the remedy of specific performance
against it in the case of any default by the Owner hereunder. The remedies set forth in this
Section 13 shall be County's exclusive remedies for violations of this Agreement.
Section 14. Recording and F&ig. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request.The Owner shall pay all fees and charges incurred in connection with any
such record ing.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal to the greater of(i) $5000/year; or (ii) $75.00/Moderate Income
Unit/year,payable in advance in annual installments commencing on and
continuing on.each thereafter,until the end of. the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments. This Regulatory Agreement shall be amended only by a
written instrument executed by the parties hereto or their successors in title, and duly recorded
in the real property records of the County of Contra Costa,California.The parties requesting
such amendment shall notify the other parties to this Regulatory Agreement of the proposed
amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered mail,postage prepaid,return
receipt requested, at the addresses specified below,or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
.651 Pine Street
4"'Floor, North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
With a copy to: .
11
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
13
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59065
State of California )
ss
County of )
On before me, , Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59065
EXHIBIT A
DESCRIPTION OF PROJECT SITE
A-1
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low,Low,Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom [Very Low, Low,Moderate] Income Units is
6. The number of one-bedroom [Very Low, Low, Moderate] Income Units is
Owner:
By:
Its:
B-1
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and.address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn, state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name-of Members I:elationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons first occupy the apartment or
sign a lease with respect to the apartment, including income described in (a) below, but
excluding all income described in (b) below,is $
(a) The amount set forth above includes all.of the following income (unless
such income is described in(b)below):
(i) all wages and salaries, over-time pay, commissions, fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
C-1
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business or profession, except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities, plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit;and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
C-2
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and worker's compensation), capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees,books,equipment,materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii.) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set.aside for use under a
Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment,clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included.in item 6) has any savings, stocks,bonds, equity in real.property
or other form of capital investment (excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $ and
C-3
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(b) the amount of income expected to be derived from such assets in the 12-
month period conunencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me t1-ds day of
(NOTARY SEAL)
Notary Public in and for the State of
My Conunission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
C-4
Svc-59065
POR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for.entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than S5,000,enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
11. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
C-5
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Median Income for the Area" means median income for the Contra Costa County, adjusted
for.family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
C-6
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate,the following percentages of completed residential units
in the Project(i) are occupied by [Very Low,Low,Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low, Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
D-1
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EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
E-]
Svc-59065
ATTACHMENT B
Certification of Homebuyer Eligibility
WAPcrsonal\BOARDORDERS\10.2.01.doughcrtyvallcy 6
CERTIFICATION OF HOMEBUYER ELIGIBILITY
RE: (name and address of Property] Purchase Price $
Developers of new homes in the Dougherty Valley are subject to conditions set forth in the Contra
Costa County Dougherty Valley Affordable Housing Program (DVAHP). The purchasers of homes
subject to the provisions of the DVAHP are required to meet certain eligibility requirements,
including income eligibility. For purposes of this Homebuyer Certification, the following definitions
will apply:
• "Moderate Income Households" means households whose incomes are from 81 to (and
including) 120 percent of the Contra Costa Median Income, as adjusted for family size and
published by the California Department of Housing and Community Development pursuant to
Health and Safety Code Section 50093.
• "Low Income Households" means households whose incomes are from 51 to (and including) 80
percent of the Contra Costa Median Income, as adjusted for family size and published by
the California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50079.5.
• "Very Low Income Households" means households whose incomes do not exceed 50 percent
of the Contra Costa Median Income, as adjusted for family size and published by the
California Department of Housing and Community Development pursuant to Heblth and
Safety Code Section 50105.
I/We, the undersigned, being first duly sworn, state that I/we have 'read the foregoing and
answered fully and truthfully each of the following questions for all persons who are to occupy the
above property for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
b. The anticipated income of all the above persons during the 12-month period beginning on the
later of the date on which the above persons first occupy the residence, including income described
in (a) below, but excluding all income described in (b) below, is
(a) The amount set forth above includes all of the following
income (unless such income is described in (b) below):
W:Persona l\0oughertyValley\ExhibitC.DoughertyVaIley.9.01 1
(i) all wages and salaries, over-time pay, commissions, fees, tips
and bonuses and other compensation for personal services, before payroll
deductions;
(ii) net annual income from the operation of a business or
profession or from the rental of real or personal property (without
deducting expenditures for business expansion or amortization of capital
indebtedness). (An allowance for depreciation of assets used in a business or
profession may be deducted, based on straight-line depreciation, as provided
in Internal Revenue Service regulations. Include any withdrawal of cash or
assets from the operation of a business or profession, except to the extent
the withdrawal is reimbursement of cash or assets invested in the operation
by the above persons):
(iii) interest and dividends (include all income from assets as set
forth in item 7(b) below and include any withdrawal of cash or assets from
an investment, except to the extent the withdrawal is reimbursement of
cash or assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions, disability
or death benefits and other similar types of periodic receipts including a
lump-sum payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such 'as unemployment and
disability compensation, workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment
includes an amount specifically designated for shelter and utilities that is
subject to adjustment by the welfare assistance agency in accordance with
the actual cost of shelter and utilities, include as income (a) the amount. of
the allowance or grant exclusive of the amount specifically designated for
shelter or utilities, plus (b) the maximum amount that the welfare assistance
agency could in fact allow the above persons for shelter and utilities. (If the
welfare assistance is ratably reduced from the standard of need by applying
a percentage, the amount calculated under clause (b) shall be the amount
resulting from one application of the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons
not residing in the dwelling;
W:Personal\DoughertyValley\ExhibitC.boughertyValley.9.01 2
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are
residing in the unit; and
(ix) any earned income tax credit to the extent it exceeds income
tax liability.
(b) The following income is excluded from the amount set forth
above:
(i) Income from employment of children (including foster
children) under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
and worker's compensation), capital gains and settlement for personal 'or
property losses;
(iv) Amounts received by the household that are specifically for,
or in reimbursement of, the cost of medical expenses for any household
member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the
student or to the education institution, and amounts paid by the Government
to a veteran, for use in meeting the costs of tuition, fees, books, equipment,
materials, supplies, transportation, and miscellaneous personal expenses of
the student. Any amount of such scholarship or payment to a veteran not
used for the above purposes that is available for subsistence is to be
included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
W:Personal\DoughertyVaI ley\ExhibitC.DoughertyVaIley.9.01 3
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use
under a Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of
out-of-pocket expenses incurred (special equipment, clothing,
transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
(ix) Temporary, nonrecurring or sporadic income (including gifts);
or
(x) Amounts specifically excluded by any other federal statute
from consideration as income for purposes of determining eligibility or
benefits under a category of assistance programs that includes assistance
under the United States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income or
contributions were included in item 6) has any savings, stocks, bonds, equity in real property or
other form of capital investment (excluding interests in Indian trust lands, but including the value
of any assets disposed of for less than fair market value (including a disposition in trust, but not in
a foreclosure or bankruptcy sale) during the previous two years in excess of the consideration
received therefore), provide:
(a) the total value of all such assets owned by all such persons: $_, and
(b) . the amount of income expected to be derived from such assets in the
12-month period commencing this date: $
W:Personal\DoughertyValley\ExhibitC.DoughertyValley.9.01 4
We acknowledge that all of the above information is relevant to the status of the subject project
and comply with affordable housing requirements of Contra Costa County. I/we certify that a) our
current gross annual household income is as set forth above; b) that the number of persons residing
in our house is ; c) that we intend to occupy the house as our principal place of residence; and
d) we hereby grant permission to (lender) to disclose information in our application files to
Contra Costa County representatives in order to verify our income. I (we) declare under penalty of
perjury that the foregoing is true and correct.
Date:
Purchaser
Purchaser
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
W:Personal\DoughertyVal ley\ExhibitC.DoughertyVaIley.9.01 5 .
FOR COMPLETION BY SELLER/LENDER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a)above is greater than $5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than $0, enter
$0)*. $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income for
the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low, Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
* "Median Income for the Area" means median income for the Contra Costa County, adjusted for
family size as published by the California Department of Housing and Community Development
pursuant to Health & Safety Code Sections 50079.5 and 50105.
W:Personal\DoughertyVaIley\ExhibitC_DoughertyVaIley.9.01 6
ATTACHMENT C
Form of Disclosure Statement
W APersonal\B0ARDORDERS\10.2.01.doughcrtyvallcy 7
CONTRA COSTA COUNTY
DOUGHERTY VALLEY AFFORDABLE HOUSING PROGRAM
DISCLOSURE STATEMENT
This statement applies to the following area:
[Include map of project area or site description.]
State Housing Element law requires California jurisdictions to analyze existing and future
housing needs for all economic segments of the population and develop specific policies
and programs to meet the identified needs. In order to assist the County in meeting the
requirements of State Housing Element law, the Contra Costa County Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program (DVAHP) in
March of 1994. The DVAHP was incorporated by reference into agreements between the
County, Shapell Industries of Northern California, and Windemere Ranch Partners-BLC
governing the future development of 11,000 housing units in the Dougherty Valley.
According to the requirements of the DVAHP, a minimum of 25 percent of all housing
units developed within Dougherty Valley must be affordable to very-low, low and
moderate-income households. In addition, at least 10 percent of the affordable units
must be affordable to very-low income households and 25 percent must be affordable to
low-income households.
Assuming all 11,000 housing units are developed, the DVAHP will result in the provision
of 2,750 affordable housing units in the Dougherty Valley, including 275 affordable to
very-low income households, 688 for low-income households, and 1,788 for moderate- .
income households. While the affordable housing obligation may be met through the
development of either rental or ownership housing, current plans indicate that the
majority of the affordable units will be apartments.
Information concerning the status of the DVAHP including the location of proposed sites
for the affordable units may be obtained from Shapell Industries (408/946-1550) and
Windemere Ranch Partners (Lennar Communities 925/416-4949).
Very-low income households are defined as households with incomes at or below 50 percent of the area
median income for Contra Costa County(AMI)as adjusted for household size and defined by the State
Department of Housing and Community Development.Low-income households are defined as households
with incomes at/below 80 percent AMI,while moderate income households have incomes atibelow 120
percent AMI. For example,in December of 2000,the maximum allowable income for a four person very-
low income household was$33,800,the maximum income for a low-income household was$67,600 and
$81,100 for a moderate income household.
Please sign this Disclosure Statement in the space provided below and return it to:
Shapell Industries Lennar Communities
100 North Milpitas Blvd. 5960 Inglewood Drive, # 220
Milpitas, CA 95035 Pleasanton, CA 94588
I have read and understand the above Dougherty Valley Affordable Housing Disclosure
Statement including provisions that require the provision of housing affordable to very-low,
low and moderate-income households in the Dougherty Valley.
By: Dated:
Signature of Buyer/Renter
.Print name of Buyer/Renter
kkh/w/word/dvahp7
ATTACHMENT D-1
Form of Condition of Approval for Final Map Approval
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
i
W:\Personal\BOARDORDERS\10.2.01.doughertyvalley 8
GALE RANCH PHASE II
NEIGIIBORHOOD 11
FINAL MAP
AF I+ORDABLE HOUSING RESERVATION
Parcel (the `Parcel") is designated as a site for housing affordable to .
Very Low Income and Low Income Households (as these terms are defined in
the Dougherty Valley Affordable Housing Program). 'Phis Parcel with the
recording of this Final Map is reserved for housing for Very Low Income and
Low Income Households. As a result of this reservation, no initial application
for the development of this parcel shall be made that does not contain a
minimum of 160 units of housing for Very Low Income and Low Income
Households. Should the housing for Very Low Income and Low Income
Households not be funded with the initial application for financing the Parcel or
that portion of the Parcel designated for Very Low Income and Low Income
Households shall remain available, consistent with items V.E.2. and 3. of the
Dougherty Valley Affordable Housing Program.
ATTACHMENT D-2
Form of Condition of Approval for Final Development Plans
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
WAPasonaRBOARDORDBRS110.2.01.doughertyvalley 9
GALL RANCH PHASE II
FINAL DEVE LOPMEJ NT PLAN
AFFORDABLE HOUSING
CONDITION OF APPROVAL
Neighborhood 11. in Gale Ranch Phase II has been designated by Shapell as a
site for housing affordable to Very Low Income and Low Income Households
(as these terms are defined in 'the Dougherty Valley Affordable Housing
Program). ']'his neighborhood, with the recording of the first Final Map for Gale
Ranch Phase 11 shall contain a reservation such that no development application
for Neighborhood 11 shall be approved by the County that does not contain a
minimum of 160 units of housing affordable to Very Low Income and Low
Income Households. Any such application for housing affordable to Very Low
Income and Low Income Households shall be accompanied by an executed
regulatory agreement.
Should the housing affordable to Very Low Income and Low Income
Households not be funded with the initial application for financing, that portion
of the Neighborhood 11 parcel designated for Very Low Income and Low
Income Households shall remain available consistent with items E.E.2. and 3. of
the Dougherty Valley Housing Program.
EXHIBIT E-1
Agreement to Amend Affordable Housing Program (Shopell Industries)
W:\Pcrsoiial\BOARI?ORDGRS110.2.Ol.doughertyvalley 10
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
SHAPELL INDUSTRIES,INC.
OWNER
Dated as of
October 2001
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM (the
"Agreement") is dated as of October_, 2001,by and between COUNTY OF CONTRA
COSTA, a political subdivision of the State of California("County"), and Shapell Industries,
Inc., a Delaware corporation("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the
Dougherty Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley
Specific Plan in December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the
Board of Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24,
1994 (the "DVAHP"); and
WHEREAS, Owner is the owner of approximately 2,708 acres of land within the
Dougherty Valley(the "Shapell Property") which, under the terms of the Specific Plan, is
designated for the development of, among other things, up to 5,830 residential dwelling units
(the"Shapell Project");
WHEREAS, Owner and County are parties to those certain Development
Agreements, dated January 11, 1995 and April 8, 1996 (the "Development Agreements"), which
Development Agreements were entered into pursuant to Section 65864 et seq. of the California
Government Code, and Section 3.05 of which Development Agreements requires compliance
with the DVAHP;
WHEREAS, the Development Agreements require the development of the Shapell
Project to be undertaken in a manner consistent with the terms and provisions of, among other
things, that certain Agreement to Settlement Litigation, dated May 11, 1994,by and between
County, the City of San Ramon, the Town of Danville, Owner and the predecessor-in-interest to
Windemere BLC Land Company, LLC (the"Settlement Agreement"), which Settlement
Agreement provides (in Recital M) that the DVAHP may be amended upon the written
agreement of the County, Owner and Windemere.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend
the DVAHP as anticipated by the Settlement Agreement, and to enter into this Agreement
concurrently with County and Windemere BLC Land Company, LLC entering into a similar
agreement, in the form attached hereto as Exhibit A(the"Windemere Agreement"), to so amend
the DVAHP.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
affd housing umbrella agmt(Ver. 3)i72272i053
Section 1. Amendments of DVAHP. County may amend the
DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
`Moderate Income Rent'shall mean the lesser of(1) the monthly
market rate rent; or (2) a monthly rent which is no greater than
30% of 100% of the Median Monthly Income for a one person
household, including a Utility Allowance,for studio units; a
monthly rent which is no greater than 30% of 110% of the Median
Monthly Income for a two person household, including a Utility.
Allowance,for one-bedroom units; a monthly rent which is no
greater than 30% of 120% of the Median Monthly Income for a
three person household, including a Utility Allowance,for two-
bedroom units; and a monthly rent which is no greater than 30%
of 120%of the Median Monthly Income for a four person
household, including a Utility Allowance,for three-bedroom units.
(b) Section V(B)(2) of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following
minimum terms:
(i) For-sale Moderate Income Units shall be maintained as affordable
for the term governed by its subsidy source. Since the Dougherty
Valley Affordable Housing Program has been developed such that
there is no expectation of public participation (as defined below),
the Moderate Income for-sale units are not generally expected to
have an affordability term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of
thirty (30)years if the project is subject to public participation
(which term means the provision of financial assistance in the form
of, among other things, a loan, grant, loan guarantee, or waiver of
rents/modification of development standards granted solely to
enhance the affordability of the units, etc), and twenty (20)years
if no public participation is provided. Developers/Owners of for-
rent Moderate Income Units and specialized facilities shall enter
into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the
development.
Nothing in the foregoing shall preclude a longer term of affordability as
may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAB?
is hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit (LowNery Low Income), respectively.
The "Certification of Homebuyer Eligibility"form and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E, respectively, are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B, Exhibit C, Exhibit D, and
affd housing umbrella agmt(Ver. 3)r722721053
Exhibit E are intended to be standard forms to be used by County and Owner in connection with
affordable housing projects that may be proposed within the Shapell Project. Any regulatory
agreements so entered into between County and Shapell shall be in substantially the form of one
of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income project, a
combination of these forms) subject only to those modifications that may be necessary or
appropriate to reflect the circumstances or terms of any particular affordable housing transaction.
The forms attached hereto as Exhibit D and Exhibit E may be used.subject only to those
modifications that may be necessary or appropriate to reflect the circumstances or terms of any
particular affordable housing transaction.
Section 2. No Other Amendments. Except as otherwise specified herein, the
DVAHP shall remain unchanged and a binding obligation of the parties as specified in
Section 3.05 of the Development Agreements.
Section 3. Effective Date of Agreement. This Agreement shall become effective
innnediately upon the execution and delivery hereof and of the Windemere Agreement by all
parties to such agreements. This Agreement shall authorize only the amendments specified in
Section 1 above, all of which shall be adopted by the County Board of Supervisors, if at all,
concurrently with its approval of this Agreement.
Section 4. Governing Law. This Agreement shall be governed by
the laws of the State of California.
Section 5. Notices. Any notice required to be given hereunder shall. be made in
writing and shall be given by personal delivery, certified or registered mail, postage prepaid,
return receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Mr. Chris Truebridge, Division Manager
Shapell Industries of Northern California
P.O. Box 361169
100 North Milpitas Blvd.
Milpitas, CA 95035
Attention: Chris Truebridge
With a copyto: McCutchen, Doyle,Brown & Enersen, LLP
P.O. Box V
1333 N. California Boulevard, Suite 210
Walnut Creek, CA 94596
Attention: Cecily T. Talbert
Notice shall be deemed given three business days after the date of mailing.
aff d housing umbrella agmt(Ver. 3)n2272/053
Section 6. Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof
shall not in any way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of County and Owner and their respective successors and assigns.
Section 8. Multiple Counterparts: This Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument, and
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, County and Owner have executed this Agreement by
duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL
By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
SHAPELL INDUSTRIES, INC., a Delaware
corporation
By: T
Its:
By:
Its:
affd housing umbrella agmt(Ver. 3)/72272/053
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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EXHIBIT A
WINDEMERE AGREEMENT
See Attachment E-2 for this Agreement.
A-1
we-60261
EXHIBIT B
REGULATORY AGREEMENT(MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOW/VERY LOVV
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORM
For reproduction purposes the above exhibits have not been reproduced.
They are attached to this October 16 Board Order as (Attachment A-2,
A-1, B, and C respectively)
EXHIBIT E-2
Agreement to Amend Affordable Housing Program (Windemere BLC)
WAPersonaRBOARDORDERSU0.2.01.doughertyvalley 11
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
WINDEMERE BLC LAND COMPANY, LLC
OWNER
Dated as of
October2001
we-60261
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM(the"Agreement")
is dated as of October , 2001,by and between COUNTY OF CONTRA COSTA,a political
subdivision of the State of California("County"), and Windemere BLC Land Company,LLC, a
California limited liability company("Owner").
WITNESSETH:
WHEREAS,the Board of Supervisors of Contra Costa County adopted the Dougherty Valley
Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in December 1996
(as so amended,the"Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income community in
the Dougherty Valley in order to promote a jobs-housing balance and address affordable housing needs
set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals,the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994 (the
"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2379 acres of land within the Dougherty
Valley(the"Windemere Property")which,under the terms of the Specific Plan, is designated for the
development of, among other things,up to 5,170 residential dwelling units (the Windemere Project");
WHEREAS, Owner and County are parties to that certain Development Agreement, dated
January 18, 1996(the"Development Agreement"),which Development Agreement was entered into
pursuant to Section 65864 et seq.of the California Government Code, and Section 3.05 of which
Development Agreement requires compliance with the DVAHP;
WHEREAS,the Development Agreement requires the development of the Windemere Project to
be undertaken in a manner consistent with the terms and provisions of,among other things,that certain
Agreement to Settlement Litigation, dated May 11, 1994,by and between County,the City of San
Ramon,the Town of Danville,Owner's predecessor-in-interest and Shapell Industries,Inc. (the
"Settlement Agreement"), which Settlement Agreement provides (in Recital M)that the DVAHP may be
amended upon the written agreement of the County,Owner and Shapell.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend the DVAHP as
anticipated by the Settlement Agreement, and to enter into this Agreement concurrently with County and
Shapell entering into a similar agreement, in the form attached hereto as Exhibit A(the"Shapell
Agreement"),to so amend the DVAHP.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein,and other good and valuable consideration,the receipt and sufficiency of which hereby are
acknowledged, the County and the Owner hereby agree as follows:
Section 1. Amendments of DVAHP. County may amend the DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
'Moderate Income Rent'shall mean the lesser of(1) the monthly market rate rent; or
(2) a monthly rent which is no greater than 30%of 100%of the Median Monthly Income for a
one person household, including a Utility Allowance,for studio units; a monthly rent which is no
greater than 30%of 110%of the Median Monthly Income,for a two person household, including
a Utility Allowance,for one-bedroom units; a monthly rent which is no greater than 30%of
we-60261
120%of the Median Monthly Income for a three person household, including a Utility
Allowance,for two-bedroom units;and a monthly rent which is no greater than 30%of 120%of
the Median Monthly Income for a four person household, including a Utility Allowance,for
three-bedroom units.
(b) Section V(B)(2)of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following minimum
terms:
(i) For-sale Moderate Income Units shall be maintained as affordable for
the term governed by its subsidy source. Since the Dougherty Valley
Affordable Housing Program has been developed such that there is no
expectation of public participation (as defined below), the Moderate
Income for-sale units are not generally expected to have an affordability
term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of thirty
(30)years if the project is subject to public participation (which term
means the provision of financial assistance in the form of, among other
things, a loan, grant, loan guarantee, or waiver of rents/modification of
development standards granted solely to enhance the affordability of the
units, etc.), and twenty(20)years f no public participation is provided.
Developers/Owners of for-rent Moderate Income Units and specialized
facilities shall enter into a Regulatory Agreement(form to be provided
by the County)prior to the issuance of any building permit required for
the development.
Nothing in the foregoing shall prelude a longer term of
affordability as may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP is
hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C(LowNery Low Income),respectively.
The"Certi �c'�ation of Homebuyer Eligibility" orm and"Disclosure Form" attached hereto as
Exhibit D and Exhibit E,respectively, are hereby added as exhibits to the DVAHP and shall be
used where require t ereby. The forms attached hereto as Exhibit B,Exhibit C,Exhibit D and
Exhibit E are intended to be standard forms to be used by County—an w—ner in connection with
affo—Ra-bTe housing projects that may be proposed within the Windemere Project. Any regulatory
agreements entered into between County and Windemere shall be in substantially the form of
one of Exhibit B or Exhibit C(or, in the case of a combined moderate/low/very low income
project,a com mation o-'Tese forms), subject only to those modifications that may be necessary
or appropriate to reflect the circumstances or terms of any particular affordable housing
transaction. The forms attached hereto as Exhibit D and Exhibit E may be used subject only to
those modifications that may be necessaryor appropriate to re ect the circumstances or terms of
any particular affordable housing transaction
Section 2. No Other Amendments. Except as otherwise specified herein,the DVABP shall
remain unchanged and a binding obligation of the parties as specified in Section 3.05 of the Development
Agreement.
Section 3. Effective Date of A eement. This Agreement shall become effective immediately
upon the execution and delivery-oflffiis Agreement and of the Shapell Agreement by all parties to such
agreements. This Agreement shall authorize only the amendments specified in Section 1 above, all of
which shall be adopted by the County Board of Supervisors,if at all, concurrently with its approval of
this Agreement.
2
we-60261
Section 4. Governing Law. This Agreement shall be governed by the laws of.the State of
California.
Section 5. Notices. Any notice required to be given hereunder shall be made in writing and shall
be given by persona-I Feelivery,certified or registered mail,postage prepaid,return receipt requested,at
the addresses specified below, or at such other addresses as may be specified in writing by the parties
hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4'Floor,North Wing
Martinez, California 94553-0095
Attention:Deputy Director-Redevelopment
Owner: Windemere BLC Land Company,LLC
3130 Crow Canyon Place, Suite 310
San Ramon, California 94583
Attention: Pete Petersen
With a copy to: R. Clark Morrison
Morrison&Foerster LLP
101 Ygnacio Valley Road
Suite 450
Walnut Creek, CA 94596
Notice shall be deemed given three business days after the date of mailing.
Section 6. Severability. If any provision of this Agreement shall be invalid,illegal or
unenforceable,the vai il'd ty,legality and enforceability of the remaining portions hereof shall not in any
way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of County and Owner an t eir respective successors and assigns.
Section 8. Multiple Counter arts. This Agreement may be simultaneously executed in multiple
counterparts,all ot-which shall constitute one and the same instrument, and each of which shall be
deemed to be an original.
3
we-60261
IN WITNESS WHEREOF, County and Owner have executed this Agreement by duly authorized
representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
WINDEMERE BLC LAND COMPANY LLC, a
California limited liability company
By: Brookfield Bay Area Holdings LLC,
a Delaware limited liability ompany
Member
By:
Its:
By:
Its: Vp hre
By: Centex Homes,
a Nevada general partnership
Member
By: Centex Real Estate Corporation,
a Nevada general partnership
Managing General Partner
By
llavi Barclay
Division President
By: LEN-OBS Windemere, LLC,
a Delaware limited liability company
Member
By: Lennar Homes of California, Inc.,
a California corporation
Managing Member
By:
Greg McWilliams
Vice President
4
we-60261
EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOW/VERY LOVA
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORM
For reproduction purposes the above exhibits have- not been.reproduced.
They are attached to this October 16 Board Order as (Attachment A-2,
A-1, B, and C respectively)
EXHIBIT A
SHAPELL AGREEMENT
See Attachment E-1 for this Agreement
A-1
we-50261
1
� _ . Contra
Costa
TO:. BOARD OF SUPERVISORS J'^ Couniy
FROM: 'Dennis M. Barry, AICP, Director of Community Development
DATE: October 16, 2001
SUBJECT: Dougherty Valley Affordable Housing Program
SPECIFIC REQUEST(S) OR RECOMMENDATIONS(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
With respect to the Dougherty Valley Affordable Housing Program:
1. CONSIDER report and recommendations from the Director of Community Development regarding:
a) Amendments to the Dougherty Valley Affordable Housing Program
relative to Moderate Income Rent and Moderate Income Rental Term;
b) Acknowledge receipt of form of implementation documents, including:
• Regulatory Agreement for rental projects;
• Disclosure Form to be used to inform Dougherty Valley homebuyers/tenants of the mixed
income nature of the Dougherty Valley Development Program;
• Proposed form of Condition of Approval for future entitlement actions with respect to the
affordable housing obligation;
• Proposed form of Homebuyer Certification for moderate, low, and very low-income
homebuyers; and
2. FIND Shapell Industries of Northern California in compliance with the Dougherty Valley Affordable
Housing Program.as of October 1, 1999 and October 1, 2000;
3. APPROVE &AUTHORIZE the Chair to execute an Agreement to Amend Affordable Housing Program
.with both Shapell Industries of Northern California, and Windemere BLC Land Company, LLC, which.
Agreement attests to the parties concurrance with the aforementioned modifications to the Dougherty
Valley Affordable Housing Program, and the documents to implement its terms;
4. APPROVE AND AUTHORIZE the Director of Community Development,or his designee,to enter into the
following Regulatory Agreements for Moderate Income Units:
• With Shapell for the Falcon Bridge project (Moderate Income Units);
With Windemere BLC for Project#1 (Moderate Income Units west of Bollinger Canyon
Road, south of Albion Way);
• With Windemere BLC for Project#2 (Moderate Income Units west of Bollinger Canyon
Road, south of Harcourt Way); and
With Windemere BLC for Project #3 (Very Low/Low Income Units west of Bollinger
Canyon Road, south of Windemere Parkway and north of Harcourt Way).
FISCAL IMPACT
None, No general funds involved.
CONTINUED ON ATTACHMENT: _X_ SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOM NDATION OF B ARD
COMMITTEE APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON APPRO D AS RECOMMENDED
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT ) TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Source: Jim Kennedy
335-1255 ATTESTED
JOHN SWEETEN, CLERK OF THE
cc: County Administrator's Office BOARD OF SUPERVISORS AND
County Counsel COUNTY ADMINISTRATOR
Community Development-Land Development
Community Development-Housing
BY , DEPUTY
WAPersonalBOARDORDEM10.2.01.doughertyvalley 1
BACKGROUND
On August 7, 2001 the Board accepted the report of the Director of Community Development regarding the
Dougherty Valley Affordable Housing (DVAHP) Program, and Shapell Industries compliance with said program.
The Board also declared it would find Shapell in compliance with the DVAHP for the years 1999 and 2000,
conditioned upon receipt of implementing documents and conditions of approval,which are enclosed herewith,for
the Board's consideration. On October 2, 2001 the Board continued the matter to October 16th with direction to
staff to prepare and seek developer concurrence on a form of Agreement that would obligate the parties to a
modified DVAHP, and clarify the implementing documents.
Dougherty Valley Affordable Housing Program Agreement
Both Shapell and Windemere portions of the Dougherty Valley development are subject to Development
Agreements. Among other things, the Development Agreements require compliance with the DVAHP. The
Development Agreements also require that the Shapell and Windemere projects in Dougherty Valley be
undertaken consistent with the terms and conditions of a May 11, 1994 Agreement to Settlement Litigation
between the County,the City of San Ramon,the Town of Danville,and the Shapell and Windemere development
interests. This Settlement Agreement providesthat the DVAHP may be amended with the written agreement of
the County, Shapell, and the Windemere owner (now Windemere BLC Land Company, LLC).
An Agreement to Amend Affordable Housing Program (Exhibits E-1 and E-2)has been developed to attest to the
agreement of the parties. The Agreement to Amend Affordable Housing Program for Shapell is Exhibit E-1,and
Windemere BLC is Exhibit E-2. Both developer parties are agreeable to the form and have executed their
Agreement,and staff recommends the Board of Supervisors approve and authorize execution of the Agreements
to Amend Affordable Housing Program concurrent with the other actions before you.
Modifications to the Dougherty Valley Affordable Housing Program—Moderate Income Rental Component.
In its action of August 7,2001 the Board directed that the staff to return with amendments to the Dougherty Valley
Affordable Housing Program relative to the Moderate Income Rental Component. Staff recommends that:
1. Section III, Definition of"Moderate Income Rent"be amended so that it"means the lesser of(1)
the monthly market rate rent; or (2) a monthly rent which is no greater than 30% of 100% of
Median Monthly Income for a one person household,including a Utility Allowance,for studio units;
a monthly rent which is no greater than 30%of 110%of Median Monthly Income for a two-person
household, including a Utility Allowance for one-bedroom units; no greater than 30%of 120%of
Median Monthly Income for a three person household, including a Utility Allowance for two-
bedroom units; and no greater than 30% of 120% of Median Monthly Income for a four-person
household, including a Utility Allowance for three-bedroom units"; and
2. Amend Section V (13)(2)—Affordability Term, Moderate Income Units as follows:
"Moderate Income Units"shall be maintained as such for the following minimum terms:
a) For sale Moderate Income Units shall be maintained as affordable for the term
governed by its subsidy source. Since the Dougherty Valley Affordable Housing
Program has been developed such that there is no expectation of public
participation as defined below, the Moderate Income for-sale units are not
generally expected to have an affordability term.
b) For rent Moderate Income units and specialized facilities with Affordable Units
shall be maintained as such for a minimum of thirty (30) years if the project is
subject to public participation (which term means the provision of financial
assistance by a public agency in the form of, among other things,a loan,grant,
loan guarantee, the waiver of fees and/or the modification of development
standards solely to enhance the affordability of the units, etc.), and twenty(20)
years if no public financial participation (as defined above) is provided.
Developers/Owners of Moderate Income rental units and specialized facilities
shall enter into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the development.
"Nothing in the foregoing shall prelude the achievement of a longer term of affordability as may be
negotiated or required by financing sources."
W:\Personal\BOARDORDERS\10.2.01.doughertyvalley 2
Proposed Form of Implementing Documents
The form of documents implementing the terms of the DVAHP, and the Board's recent directives are
provided as follows:
1. Regulatory Agreement and Declaration of Restrictive Covenant,which is a recorded instrument
which runs with the land for their term are included as Attachment A-1 (Very Low/Low Income
Projects),and Attachment A-2(Moderate Income Projects). These are intended to be standard
forms to be executed by the parties and recorded in substantially the form provided.
2. Certification of Homebuyer Eligibility(Attachment B)would be completed and executed by each
applicable homebuyer of a Very Low Income, Low Income, or Moderate Income for-sale unit.
3. A Disclosure Form to be signed by each Dougherty Valley homebuyer,after receipt of disclosure
information, is included as Attachment C.
4. The issue of obtaining certainty with respect to the securement of sites for Very Low Income and
Low Income housing was identified. The desire was to achieve a level of certainty with respect to
delivery of such units in the approved and/or pending phases that is commensurate with the
degree of entitlement certainty being obtained by the developer. A form of Condition of Approval
for a final map approval are included as Attachment D-1. A form of Condition of Approval for a
Final Development Plan is included as Attachment D-2.
Subsequent to the Board's action staff met with County Counsel, the developer's, and their counsel to craft the
Affordable Housing Program Agreement and finalize the language of documents. This report and.set of
recommendations responds to the Board's direction. In addition, the developers have executed and submitted
Regulatory Agreements for the following projects:
• Shapell for the 256 unit Falcon Bridge Moderate Income project;
• W indemere BLC for Project#1,and Project#2,which total 650 Moderate Income units;and
• Windemere BLC for Project#3, a Very Low/Low Income development of 350 units.
Additional Information Regarding Compliance Matters
Three additional matters related to compliance were reviewed as to status and included in the October 2nd report to
the Board. For completeness they are repeated here without alteration. They are:
1. As of September 24, 2001 Shapell had submitted eight (8) lender certifications regarding
Moderate Income Homebuyer sales to date. A preliminary review of the Lender Certification
indicates that all eight (8) homebuyers comply and are fully eligible as Moderate Income
Households. Future homebuyers must complete and execute a Homebuyer Certification
(Attachment B).
2. As of September 24, 2001 Shapell had submitted 61 rental applications from current tenants.
Occupancy of the Falcon Bridge apartments is ongoing. Staff has completed a preliminary
assessment of the information. Each existing tenant will be requested to execute a certificate of
Household Eligibility(Appendix C to Regulatory Agreement)once the DVAHP provisions for rent
and term for Moderate Income units have been determined by the Board. A transition period for
current tenants may be required depending on current lease terms.
3. "Initial Level of Development"Considerations
The Dougherty Valley Settlement Agreements provide for specified performance standards to be
achieved in the traffic area in order to build beyond 8,500 units(the"Initial Level of Development'
as defined in the Settlement Agreement). The County has expressed concern that the delivery of
affordable housing at the Initial Level of Development be proportionate to the DVAHP
requirements.
The annual review process, including the requirement of a finding of compliance with the
Dougherty Valley Affordable Housing Program in order to proceed with the processing and
issuance of subsequent entitlements is the mechanism for achieving this goal. Shapell has
proposed that prior to the issuance of the 3,900th building permit in Gale Ranch, Shapell
demonstrate that it will be within 10%of the 25%affordable housing goals for the Shapell share
of an 8,500 unit project. This will give the County and Shapell some 600 units to integrate the
remaining affordable units if Shapell is not already at 100%.
In addition,at the Board hearing of October 2,2001 a discussion was held regarding the magnitude of Moderate
Income Rents that would be permitted under the DVAHP with proposed modifications. Reference was made to
prior information provided to the Board by report of June 26, 2001, which report characterized the relationship
between current market rents,and the rent levels possible under the various definitions of"Moderate Income Rent
under discussion."
In response to the discussion staff offers the following clarification. The definition of Moderate Income Rent is"the
lesser of (1) the market rent;" or (2) the calculated rents based on Area Median Income. In no case could an
affordable Moderate Income Rent exceed the market rent for the same unit rented concurrently. If market rents
increase faster than Area Median Income (which has been the trend for some time) the affordable Moderate
Income Rents will drop to a below market rate. If they move together the relationship stays the same. If incomes
rise faster than rents the maximum rent stays capped by the market.
WAPersonal\BOARDORDERS\10.2.01.doughertyvalley 3
ATTACHMENT A-1
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Very Low/Low Income Projects)
WAPersonal\BOARDORDEM10.2.01.doughertyvalley 4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651. Pine Sheet,411,Floor,North Wing
Martinez,CA 94553
AT7'N: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[LOW/VERY LOW INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
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10/10/01
TABLE OF CONTENTS
Section 1. Definitions and Interpretation.........:.:.............................................................................2
Section 2. Acquisition,Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ...........................................................................................5
Section 4. Low/Very Low Income Households/Rents. ...............................................................6
Section5. Indemnification.................................................................................................................9
Section6. Consideration....................................................................................................................9
Section7. Reliance..............................................................................................................................9
Section 8. Sale or Transfer of the Project.......................................................................................10
Section9. Term..................................................................................................................................10
Section 10. Covenants to Run With the Land...............................................................................10
Section 11. Burden and Benefit........................................................................................................11
Section 12. Uniformity;Common Plan..........................................................................................11
Section13. Enforcement...................................................................................................................11
Section 14. .Recording and Filing....................................................................................................12
Section15. Payment of Fees............................................................................................................12
Section16. Governing Law. ............................................................................................................12
Section17. Amendments.................................................................................................................12
Section18. Notice..............................................................................................................................12
Section19. Severability....................................................................................................................13
Section 20. Multiple Counterparts. ................................................................................................13
EXHIBIT A-DESCRIPTION OF PROJECT SITE
EXHIBIT B -STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATE OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement") is dated as of October 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992,and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a nixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth iri the Comity General Plan-Housing Element;
WHEREAS,in furtherance of the Specific Plans affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994,
and amended such program on . 2001 (as so amended, the "DVAHP"); and
WHEREAS, on 2001,County and Owner entered into that certain
Agreement to Amend Affordable Hoiisirig Program, pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code, which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and, under the terms of Owner's Development
Agreement with County,is entitled to develop, among other things,up to 5,170 dwelling units
on the Property in accordance with the Specific Plan and subject to the terms and
provisions of, among other things, that certain May 11, 1994 Agreement to Settle Litigation
between the County, the Town of Danville, the City of San Ramon,Shapell Industries, Inc., and
Windemere Ranch Partners,which Settlement Agreement imposes certain conditions to the
development of more than 8500 dwelling units within the Dougherty Valley (the
Project");
WHEREAS, in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
Project(the "Tentative Map") and, on , 2001, approved a large-
lot final subdivision snap (the "Final Map"),which Final Map has been recorded in the Official
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Records of Contra Costa County and which creates certain parcels within "Area A" as shown on
the Tentative Map for the construction of rental units;
WHEREAS, Parcel^as shown on the Final Map is a_-acre parcel upon which
Owner intends to construct rental units to be rented to low and very low income
households as more fully provided below (collectively, the "Low Income Units" and the "Very
Low Income Units," respectively).
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low, Low, and Moderate Income Households on the Property. The
Dougherty Valley Specific Plan requires that 25% of the units on the Property
be Affordable Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Completion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on
2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
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"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
"Lower Income" means generically all households of Very Low, Low, and Moderate
Income.
"Low Income Households" means households whose annual incomes are from 51 to (and
including) 80 percent of the Contra Costa County Median Income, as adjusted for family size
and published by the California Department of Housing and Community Development
pursuant to Health &Safety Code Sections 50079.5 and 50105.
"Lou)Intone Rent"means the lesser of (1) the monthly market rate rent, including a
Utility Allowance;or (2) a monthly rent which is no greater than one hundred percent (100%)
of the Section 8 Existing Program Fair Market Rents, established in accordance with 24 CFR
Part 882,effective at the time of occupancy, less the Utility Allowance then in effect.
"Lozn Income Units"means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by, Low Income Households.
"Median Income" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Monthly Income" means 1/12 of the Median Income.
"Moderate Income Households" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of(1) the monthly market rate rent; or (2) for
studio units, a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income, including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance; for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income, including a Utility Allowance; and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income, including a Utility
Allowance. Rents for studio units shall be calibrated utilizing the one-person Median Income
Household income;one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income, etc.
"Oumer" means and its successors and assigns, as owner of the
Project Site.
"Project" means the [Lozu][Very Lozu] Income Units to be constructed by Owner on
the Project Site.
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"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with, such buildings, structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A, which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is thirty (30) years after the
date on which at least fifty percent (50%) of the dwelling units in the Project were first
occupied.
"Regulator/Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
"Utilihj Alloivance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
"Vent L070 Income Households" means households whose annual incomes do not exceed
50 percent of the Contra Costa County Median Income for Contra Costa County, as adjusted for
family size and published by the State Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Very Lozu Income Rent" means a monthly rent,which is no greater than 30% of 50% of
the Median Monthly Income including'a Utility Allowance. Rents for studio units shall be
calibrated utilizing the one-person Very Low Income Household income; one-bedroom units
shall use a two-person Very Low Income Households income, two-bedroom units shall use a
three-person Very Low Income Households income, etc.
"Very L0717 Income Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by,Very Low Income Households.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine,femhline or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa, when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction, Equipping and.Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as follows:
(a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
4
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(b) The Owner reasonably expects to complete the construction of the Project
by 200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take, as applicable, any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned,managed and operated as a residential rental project for a term equal to the Qualified
Project Period. To that end,and for the term of the Qualified Project Period, the Owner hereby
represents,covenants, warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Low and Very Low Income Households, and the Owner
will own, manage and operate the Project as a project to provide multifamily residential
rental property to Low and Very Low Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living, sleeping,eating,cooking and sanitation for a single person or a
family, including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range,refrigerator and sink.
(c) Owner shall include,in any and all rental agreements, provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel,motel, dormitory, fraternity house, sorority house, rooming house,nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium snap and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Low or Very Low Income Households.
5
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(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road, street or stream, and all of the Project Facilities will
comprise a single geographically and functionally integrated project for residential
rental property, as evidenced by the ownership, management, accounting and operation
of the Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants, have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units.
(i) During the Qualified Project Period., Owner will not discriminate on the
basis of race,creed,color, sex, sexual orientation,national origin or ancestry, religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental,use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. [LowJ[Ven/ Low) Income Households/Rents. Owner hereby represents,
warrants and covenants as follows:
(a) Commencing on the Completion Date, [Low][Very Lozv] shall occupy
percent (_%) of all completed and occupied units in the Project; and for
the Qualified Project Period no less than_% of the total number of completed units of
the Project shall at all times be rented to and occupied by [Lov][Venj Low] Income
Households. For the purposes of this paragraph (a), a vacant unit which was most
recently occupied by a [L ow][Venj Lozv]Income Household is treated as rented and .
occupied by a [Lozv][Very Lozu] Income Household until reoccupied. Tenants in the
[Lozv][Venl Lozv] Income Units will have equal access and enjoyment to all common
facilities of the Project.
(b) The.rents for the [Low][Very Lozv] Income Units shall not exceed the
[Lozv][Venj Lozv]Income Rent,respectively.
(c) No tenant qualifying as a [L ow][Veny Lozv]Income Household shall be
denied continued occupancy of a unit in the Project because, after admission, such
tenant's Adjusted Income increases to exceed the qualifying limit for [LOw][Venf Lozv]
Income Households; provided,however, that should a [Venj Low, Lozv] Income
Household's Adjusted Income,as of the most recent determination thereof, exceed one
hundred forty percent(140%) of the applicable income limit for a [Venj Low, Lozv]
6
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Income Household of the same family size, the next available unit of comparable or
smaller size must be rented to (or held vacant and available for immediate occupancy
by) a [Ven,/ Lozv, LozvJ Income Household; and provided further that, until such next
available unit is rented to a [Ven,/Lozv, Lou)] Income Household, the former [Ven./ LOiv,
Lozv] Income Household who has ceased to qualify as such shall be deemed to continue
to be a [Ven,/Low, Lozv] Income Household for purposes of the percent (_%)
requirement of Section 4(a) hereof until the next available unit of comparable or smaller
size is rented to a qualifying[Venj Lozv, Lou)] Income Household.
(d) The Owner will obtain,complete, and maintain on file Income
Certifications from each [Low][Veiy Lozv] Income Household in the form attached hereto
as Exhibit C, dated no more than thirty (30) days prior to the initial occupancy of such
[Lozv][Venj Lozv] Income Household in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner will also obtain,complete, and maintain on file an
annual Income Certification from each [Venj Low, Low] Income Household, dated the
anniversary of the date of initial occupancy in the Project by such [Venj Lozv, Lozv]
Income Household. A copy of the most recent Income Certification for [Ven,/Lozv, Lozv]
Income Household commencing or continuing occupation of a [Venj Lozv, Low] Income
Unit shall be attached to each report to be filed with the County. The Owner shall make
a good faith effort to verify that the income provided by an applicant in an Income
Certification is accurate by taking one or more of the following steps as a part of the
verification process: (1) obtain a pay stub for the most recent three months, (2) obtain an
income tax return for the most recent tax year, (3) conduct a TRW Credit Bureau or other
similar search, (4) obtain an income verification from the applicant's current employer,
(5) obtain an income verification from the Social Security Administration and/or the
California Department of Social Services if the applicant receives assistance from either-.
of such agencies, or (6) if the applicant is unemployed and.does not have an income tax
return, obtain another form of independent verification. The Owner shall also engage in
a review of bank statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
[Lozv][Venj Lozv] Income Units,and will permit any duly authorized representative of
the County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the [Low][Venj Lozv] Income
Units.
(f) The Owner shall prepare and subnut to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,by [Lozv][Venj Lozv]
Income Households during such period; (ii) that either (A) no unremedied default has
occurred under this Regulatory Agreement or (B) a default has occurred,in which event
the certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
7
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(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a [Lozu][Very Lozu]Income
Unit shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the [Low][Venj Loru] Income
Household in determining qualification for occupancy of the [LOWI[Vent' Lozu] Income
Unit, and that any material misstatement in such certification (whether or not
intentional) will be cause for immediate termination of such lease or rental agreement.
Each such lease or rental agreement shall also provide that the tenant's income is subject
to anrival certification in accordance with Section 4(d) hereof and that if upon any such
certification such tenant's Adjusted Income exceeds one hundred forty percent(140%) of
the applicable income limit for a [L071)][Venj LOW] Income Tenant of the same family size,
such tenant shall, subject to (b) above, cease to qualify as a [Veit'LOW, Lozu] Income
Tenant, and such tenant's rent is subject to increase. A lease addendum setting forth
procedures for handling changes in tenant status shall be part of each lease agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period,Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement, units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
[Lozu][Venj LOW] Income Unit at the date of expiration or termination, and at a rent not
greater than the amount set forth in Section 4(b), until the earliest of any of the
following occurs: (1) the household's income exceeds 140 percent of the maximum
eligible income for [Lozu][Very LOW] Income Households; (2) the household voluntarily
moves or is evicted for "good cause" ("good cause" for the purposes of this subsection,
means the nonpayment of rent or facts necessary to prove major, or repeated minor,
violations of material provisions of the occupancy agreement which detrimentally affect
the health and safety of other persons or the structure, the fiscal integrity of the Project,
or the purposes or special programs of the Project); (3) two years after the expiration of
the Qualified Project Period;or (4) Owner pays the relocation assistance and benefits to
tenants as provided in subdivision (b) of Section 7264 of the Government Code. During
the three years prior to expiration of the Qualified Project Period, Owner shall continue
to snake available to eligible households [Lou)][Venj Lozu] Income Units that have been
vacated to the same extent that nonreserved units are made available to no.neligible
households.
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(1) All tenant lists, applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
shall be maintained as required by the County, in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing,but (i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local, state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify
and hold harmless the County and its officers, directors,officials, employees and agents from
and against any and all claims made by any person (including claims for reasonable attorneys'
fees and costs) arising from any act or omission of the Owner or any of its agents,contractors,
servants,employees or licensees in connection with the design, construction,installation,
operation,use, occupancy, maintenance, or ownership of the Project (including any failure to
comply with laws, ordinances, rules or regulations of public authorities relating thereto or the
terms an d provisions of this Agreement); except to the extent any such claim arises from the
sole negligence of the County. In the event that any such claim, action or proceeding is brought
against the County or any of its officers, directors, officials, employees or agents,with respect to
which indemnity may be sought hereunder, the Owner, upon written notice from County,shall
assume the investigation and defense thereof, including the employment of counsel and the
payment of all expenses. County shall have the right to employ separate counsel in any such
action or proceedings and to participate in the defense thereof, and Owner shall pay the
reasonable fees and expenses of such separate counsel;provided that County shall have the
right to review and reasonably approve or disapprove any compromise or settlement. The
provisions of this Section 5 shall survive the term of this Regulatory Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose, among others, of inducing Owner to develop the Project Site and,construct, equip
and operate the Project with [Lozu][Very L07171 Income Units. In consideration of these
development approvals by the County, the Owner has entered into this Regulatory Agreement
and has agreed to restrict the uses to which this Project can be put on the terms and conditions
set forth herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of the [Loru][Venj Lozv] Income Households and upon
audits of the books and records of the Owner pertaining to the Project. In determining whether
any default or lack of compliance by the Owner exists under this Regulatory Agreement, the
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County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),without obtaining the prior written consent of the County, which consent of the
County shall be given upon receipt by the County of (i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large nuxed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable,financially and otherwise, of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the ternnination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof; provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 7.0. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement. The County and the Owner hereby declare their express intent that the
covenants, reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns; provided,
however, that on the termination of this Regulatory Agreement said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants, reservations and
restrictions, regardless of whether such covenants, reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County,and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by [Lozu)[Venj Lozv] Income Tenants,the intended beneficiaries of such
covenants, reservations and restrictions, and by furthering the public purposes for which the
project was approved.
Section 12. Uniformity; Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an"Event of Default" to have
occurred hereunder,provided,however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days,such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
Owner hereby grants to the County the option,upon the expiration of 60 days after the
giving of the notice to Owner of Owner's default under this Regulatory Agreement,until the
expiration of the Qualified Project Period or the termination of this Regulatory Agreement,
whichever first occurs, to lease up to percent (_%) of the units in the Project for a rental
of$1.00 per unit per year for the purpose of subleasing such units to [Lozv][Very L0701 Income
Households,but only to the extent necessary to comply with the provisions of Section 3 and
Section 4. The option granted in the preceding sentence shall be effective only if the Owner has
not instituted corrective action within such 60-day period. Upon the acluevement,by the
Owner or the County, of compliance with the requirements of Section 3 and Section 4,County
and Owner will terminate any lease entered into between Owner and County pursuant to this
section and County shall assign to Owner any subleases entered into by County hereunder. In
the event County exercises its option hereunder, the County shall make diligent effort to
sublease [Lozu][Veiy Lozv] Income Units to [Lozv][Venj Lou)]Income Households for monthly
11
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rental amounts equivalent to those collected from tenants of similar units in the Project but,
provided County exercises such diligent efforts, shall not be required to obtain such rental
amounts. Any rental paid under any such sublease shall be paid to the Owner after County has
been reimbursed for any expenses incurred in connection with such sublease. All fees, costs
and expenses of the County incurred in taking any action pursuant to this Section shall be the
sole responsibility of the Owner. The Owner hereby agrees that specific enforcement of the
Owner's agreements contained herein is the only means by which the County may obtain the
benefits of such agreements made by the Owner herein and the Owner therefore agrees to the
imposition of the remedy of specific performance against it in the case of any default by the
Owner hereunder. The remedies set forth u1 this Section 13 shall be County's exclusive
remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 1.5. Payment of Fees. Tine Owner shall pay the County's annual administrative
fee in an amount equal the greater of i) $5,000/year; or ii) $75.00/[Lozu][Venj Lozu] Income
Unit/year,payable in advance in annual installments commencing on and
continuing each thereafter, until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments.
(a) This Regulatory Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Contra Costa,California. The parties requesting such amendment shall
notify tine other parties to this Regulatory Agreement of the proposed amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery,certified or registered mail, postage prepaid, return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4'Floor, North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable,the validity, legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts,all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low, Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of. age 62 or
over.
2. The number of [Very Low, Low, Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (12) month period is
4. The fannily names of each household currently occupying a [Very Low, Low,Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom [Very Low, Low,Moderate] Income Units is
6. The number of one-bedroom [Very Low, Low,Moderate] Income Units is
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r
7. The number of former [Very Low, Low] Income Households whose Adjusted Income
has exceeded 140% of the applicable income limit for a [Very Low, Low] Income
Households of the same family size and have therefore ceased to qualify as [Very Low,
Low] Income Households is
Owner:
By:
Its:
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn, state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Naive of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
begirming on the later of the date on which the above persons first occupy the apartment or
sign a lease with respect to the apartment, including income described in (a) below,but
excluding all income described in(b) below,is$
(a) The amount set forth above includes all of the following income (unless
such income is described in (b) below):
(i) all wages and salaries,over-time pay, commissions, fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
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business or profession,except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security,annuities,insurance policies,retirement funds, pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation,workers' compensation.and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities, include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities, plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage,the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay,special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation), capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition, fees,books,equipment, materials,
supplies, transportation,and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment,clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6) has any savings, stocks, bonds, equity in real property
or other form of capital investment(excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $ , and
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of lower Income, may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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FOR COMPLETION BY PROJECT OWNER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than S5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Median Income for the Area" means.median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
in the Project(i) are occupied by [Very Low, Low, Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low, Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
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I
EXHIBIT E
.COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
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ATTACHMENT A-2
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Moderate Income Projects)
W:\Personal\B0ARDORDERS\10.2.01.doughertyvalley 5
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Street,411, Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[MODERATE INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
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10/10/01
TABLE OF CONTENTS
Section 1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition,Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ...........................................................................................4
Section 4. Moderate Income Households/Rents. ..........................................................................5
Section5. Indemnification.................................................................................................................8
Section6. Consideration....................................................................................................................8
Section7. Reliance..............................................................................................................................8
Section 8. Sale or Transfer of the Project.........................................................................................9
Section9. Term....................................................................................................................................9
Section 10. Covenants to Run With the Land.................................................................................9
Section 11. Burden and Benefit.......................................................................................................10
Section 12. Uniformity;Common Plan...........................................................................................10
Section13. Enforcement...................................................................................................................10
Section 14. Recording and Filing....................................................................................................11
Section15. Payment of Fees............................................................................................................11
Section16. Governing Law. ............................................................................................................11
Section17. Amendments.................................................................................................................11
Section18. Notice..............................................................................................................................11
Section19. Severability....................................................................................................................12
Section 20. Multiple Cou.nterparts. ................................................................................................12
EXHIBIT A - DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATION OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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wc-59065
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement") is dated as of October 2001, by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and , a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2,1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS,in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Douglterhj Valley Affordable Housing Prograne on March 24,1994, and
amended such program on 2001 (as so amended, the "DVAHP"); and
WHEREAS, on 2001,County and Owner entered into that certain
Agreetrrent to Amertd Affordable Housing Prograttz, pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and,under the terms of Owner's
Development Agreement with County, is entitled to develop, among other things,up to
dwelling units on the Property in accordance with the Specific Plan and
subject to the terms and provisions of, among other things, that certain May 11, 1994 Agreement
to Settle Litigatiotc between the County, the Town of Danville, the City of San Ramon,Shapell
Industries, Inc. and. Windemere Ranch Partners,which Settlement Agreement imposes certain
conditions to the development of more than 8500 dwelling units within the Dougherty Valley
(the Project');
WIEREAS,in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of. the
Project(the "Tentative Map") and, on 2001, approved a final
subdivision map (the "Final Map"),which Final Map has been recorded in the Official Records
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of Contra Costa County and which creates certain parcels within "Area A" as shown on the
Tentative Map for the construction of rental units;
WHEREAS, Parcel_as shown on the Final Map is a_-acre parcel upon which
Owner intends to construct_rental units to be rented to moderate income households as
more fully provided below (collectively, the "Moderate Income Units").
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low, Low, and Moderate Income Households on the Property. The Dougherty
Valley Specific Plan requires that 25% of the units on the Property be Affordable
Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Progra1n Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Conipletion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County, pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Conipletion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on 2001.
"Housing Act" means the United States Housing Act of 1937, as amended, or its
successor.
"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
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"Median.Income" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Median Montlily Income" means 1/12 of the Median Income.
"Moderate Income Houseliolds" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of (1) the monthly market rate rent; or (2) for
studio units, a monthly rent which is no greater than 30% of 1.00% of the Median Monthly
Income, including a Utility Allowance; for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance; for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income, including a Utility Allowance; and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income,including a Utility
Allowance. Rents for studio units shall be calculated utilizing the one-person Median Income
Household income; one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income, etc.
"Moderate Income Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by, Moderate Income Households.
"Owner" means and its successors and assigns, as owner of the
Project Site.
"Project"-means the Moderate Income Units to be constructed by Owner on the
Project Site.
"Project Facilities" means all buildings,structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with, such buildings,structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A,which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is twenty (20) years after the
date on which at least fifty percent(50%) of the dwelling units in the Project were first
occupied. X20-year Qualified Project Period Assumes no public participation as defined in revised
DVA.HPJ
"Regulatory Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
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"Uhlihi A11OW rice" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine, feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa,when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction, Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as follows:
(a) Subject to market conditions,Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
(b) The Owner reasonably expects to complete the construction of the Project
by 200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take, as applicable, any action if such
action or on-ission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement in the form.attached as Exhibit D. .
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned, managed and operated as a residential rental project for a term equal to the Qualified
Project Period. To that end, and for the term of the Qualified Project Period, the Owner hereby
represents,covenants,warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Moderate Income Households, and the Owner will own,
manage and operate the Project as a project to provide multifamily residential rental
property to Moderate Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living, sleeping, eating,cooking and sanitation for a single person or a
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family, including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink.
(c) Owner shall include,in any and all rental agreements, provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel, motel, dormitory, fraternity house, sorority house, rooming house, nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Moderate Income Households.
(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road,sheet or stream, and all of the Project Facilities comprise
a single geographically and functionally integrated project for residential rental
property, as evidenced by the ownership, management, accounting and operation of the
Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents, contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants, have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units. [For tnixed-
inconie projects only.]
(i) During the Qualified Project Period,Owner will not discriminate on the
basis of race,creed, color,sex,sexual orientation,national origin or ancestry,religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental, use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. Moderate Income Households/Rents. Owner hereby represents, warrants
and covenants as follows:
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(a) Commencing on the Completion Date, Moderate Income Households
shall occupy percent (_%) of all completed and occupied units in the
Project; and for the Qualified Project Period no less than_% of the total number of
completed units of the Project shall at all times be rented to and occupied by Moderate
Income Households. For the purposes of this paragraph (a), a vacant unit which was
most recently occupied by a Moderate Income Household is treated as rented and
occupied by a Moderate Income Household until reoccupied. Tenants in the Moderate
Income Units will have equal access and enjoyment to all common facilities of the
Project.
(b) The rents for the Moderate Income Units shall not exceed the Moderate
Income Rent.
(c) No tenant qualifying as a Moderate Income Household shall be denied
continued occupancy of a unit in the Project because, after admission,such tenant's
Adjusted Income increases to exceed the qualifying limit for Moderate Income
Households.
(d) The Owner will obtain, complete, and maintain on file Income
Certifications from each Moderate Income Household in the form attached hereto as
Exhibit C. dated no more than thirty (30) days prior to the initial occupancy of such
Moderate Income Household in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner shall make a good faith effort to verify that the
income provided by an applicant u1 an Income Certification is accurate by taking one or
more of the following steps as a part of the verification process: (1) obtain a pay stub for
the most recent three months, (2) obtain an income tax return for the most recent tax
year, (3) conduct a TRW Credit Bureau or other similar search, (4) obtain an income
verification from the applicant's current employer, (5) obtain an income verification
from the Social Security Administration and/or the California Department of Social
Services if the applicant receives assistance from either of such agencies, or (6) if the
applicant is unemployed and does not have an income tax return, obtain another form
of independent verification. The Owner shall also engage in a review of bank
statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
Moderate Income Units, and will permit any duly authorized representative of the
County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the Moderate Income Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,.by Moderate Income
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Households during such period; (ii) that either (A) no unremedied default has occurred
under this Regulatory Agreement or (B) a default has occurred,in which event the
certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a Moderate Income Unit
shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the Moderate Income Household
in determining qualification for occupancy of the Moderate Income Unit, and that any
material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease or rental agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County, but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period,Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
Moderate Income Unit at the date of expiration or termination, and at a rent not greater
than the amount set forth in Section 4 (b),until the earliest of any of the following
occurs: (1) the household's income exceeds 140 percent of the maximum eligible income
for Moderate Income Iouseholds; (2) the household voluntarily moves or is evicted for
"good cause" ("good cause" for the purposes of this subsection, means the nonpayment
of rent or facts necessary to prove major, or repeated minor, violations of material
provisions of the occupancy agreement which detrimentally affect the health and safety
of other persons or the structure, the fiscal integrity of the Project, or the purposes or
special programs of the Project); (3) two years after the expiration of the Qualified
Project Period; or (4) Owner pays the relocation assistance and benefits to tenants as
provided in subdivision (b) of Section 7264 of the Government Code. During the three
years prior to expiration of the Qualified Project Period,Owner shall continue to make
available to eligible households Moderate Income Units that have been vacated to the
same extent that nonreserved units are made available to noneligible households.
(1) All tenant lists, applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
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shall be maintained as required by the County, in a reasonable condition for proper
audit and subject to exanunation during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing, but (i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local, state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify,
defend and hold harmless the County and its officers, directors, officials, employees and agents
from and against any and all claims made by any person (including claims for reasonable
attorneys' fees and costs) arising from any act or omission of the Owner or any of its agents,
contractors, servants, employees or licensees in connection with the design, construction,
installation, operation,use, occupancy, maintenance, or ownership of the Project(including any
failure to comply with laws, ordinances, rules or regulations of public authorities relating
thereto or the terms and provisions of this Agreement);except to the extent any such claim
arises from the sole negligence of the County. In the event that any such claim,action or
proceeding is brought against the County or any of its officers, directors, officials, employees or
agents,with respect to which uldenmity may be sought hereunder, the Owner, upon written
notice from County, shall assume the investigation and defense thereof,including the
employment of counsel and the payment of all expenses. County shall have the right to employ
separate counsel in any such action or proceedings and to participate in the defense thereof,
and Owner shall pay the reasonable fees and expenses of such separate counsel; provided that
County shall have the right to review and reasonably approve or disapprove any compronuse
or settlement. The provisions of this Section 5 shall survive the term of this Regulatory
Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose,among others, of inducing Owner to develop the Project Site and, construct, equip
and operate the Project with Moderate Income Units. In consideration of these development
approvals by the County, the Owner has entered into tlus Regulatory Agreement and has
agreed to restrict the uses to which this Project can be put on the terms and conditions set forth
herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements'and certificates of the Moderate Income Households and upon audits of
the books and records of the Owner pertaining to the Project. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, the
County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
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respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),without obtaining the prior written consent of the County, which consent of the
County shall be given upon receipt by the County of (i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement (which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee),and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large mixed-income or affordable rental housing
projects, without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable,financially and otherwise, of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof;provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants,reservations and restrictions set forth in this
Regulatory Agreement. The County and the Owner hereby declare their express intent that the
covenants,reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns; provided,
however, that on the termination of this Regulatory Agreement said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants,reservations and
restrictions, regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby.The
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by Moderate Income Tenants,the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the public purposes for which the project was
approved.
Section 12. Uniformity;Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an "Event of Default" to have
occurred hereunder, provided, however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days, such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of the Owner hereunder.
The Owner hereby grants to the County the option,upon the expiration of 60 days after
the giving of the notice to Owner of the Owner's default under this Regulatory Agreement,
until the expiration of the Qualified Project Period or the termination of this Regulatory
Agreement, whichever first occurs, to lease up to percent (_%) of the units in the
Project for a rental of$1.00 per unit per year for the purpose of subleasing such units to
Moderate Income Households,but only to the extent necessary to comply with the provisions
of Section 3 and Section 4.The option granted in the preceding sentence shall be effective only
if the Owner has not instituted corrective action within such 60-day period. Upon the
achievement, by the Owner or the County, of compliance with the requirements of Section 3
and Section 4, County and Owner will terminate any leases entered into between Owner and
County pursuant to the option provided herein and County shall assign to Owner any
subleases entered into by County hereunder. In the event County exercises its option
hereunder, the County shall make diligent effort to sublease Moderate Income Units to
Moderate Income Households for monthly rental amounts equivalent to those collected from
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tenants of similar units in the Project but,provided County exercises such diligent efforts, shall
not be required to obtain such rental amounts. Any rental paid under any such sublease shall
be paid to the Owner after County has been reimbursed for any expenses incurred in
connection with such sublease. All fees,costs and expenses of the County incurred in taking
any action pursuant to this Section shall be the sole responsibility of the Owner. The Owner
hereby agrees that specific enforcement of the Owner's agreements contained herein is the only
means by which the County may obtain the benefits of such agreements made by the Owner
herein and the Owner therefore agrees to the imposition of the remedy of specific performance
against it in the case of any default by the Owner hereunder. The remedies set forth in this
Section 13 shall be County's exclusive remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal to the greater of (i) $5000/year; or (ii) $75.00/Moderate Income
Unit/year,payable in advance in annual installments commencing on and
continuing on each thereafter,until the end of the Qualified Project Period. The
annual adnninistrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments. This Regulatory Agreement shall be amended only by a
written instrument executed by the parties hereto or their successors in title, and duly recorded
in the real property records of the County of Contra Costa,California. The parties requesting
such amendment shall notify the other parties to this Regulatory Agreement of the proposed
amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery, certified or registered mail, postage prepaid, return
receipt requested,at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor, North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
With a copy to: .
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. if any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts,all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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State of California )
) ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low, Low,Moderate] Income Units occupied by [Very Low, Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low, Low, Moderate] Income Households who terminated their
rental agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom[Very Low,Low,Moderate] Income Units is
6. The number of one-bedroom [Very Low, Low,Moderate] Income Units is
Owner:
By:
Its:
B-1 /
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn, state that I/we have read and answered
fully and truthfufly each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons first occupy the apartment or
sign a lease with respect to the apartment, including income described in (a) below, but
excluding all income described in(b) below, is$
(a) The amount set forth above includes all of the following income (unless
such income is described in (b) below):
(i) all wages and salaries, over-time pay, commissions, fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
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business or profession,except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b)below and include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities, include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities, plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation),capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition, fees,books, equipment, materials,
supplies, transportation,and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment,clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6) has any savings, stocks,bonds, equity in real property
or other form of capital investment(excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $ , and
C-3
we-59065
(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income,may be heated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
C-4
we-59065
POR COMPLETION BY PROJECT OWNER ONLY:
1. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than S5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered.in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0,enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
.family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
C-5
we-59065
1V. Number of apartment unit assigned:
(enter here and on page one)
Owner
* "Median Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health &Safety Code Sections 50079.5 and 50105.
C-6
we-59065
EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
in the Project(i) are occupied by [Very Low, Low, Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low, Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
D-1
we-59065
i
EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
E-1
we-59065
ATTACHMENT B
Certification of Homebuyer Eligibility
W:\Personal\BOARDORDERS\10.2.01.doughertyvalley 6
CERTIFICATION OF HOMEBUYER ELIGIBILITY
RE: [name and address of Property] Purchase Price $
Developers of new homes in the Dougherty Valley are subject to conditions set forth in the Contra
Costa County Dougherty Valley Affordable Housing Program (DVAHP). The purchasers of homes
subject to the provisions of the DVAHP are required to meet certain eligibility requirements,
including income eligibility. For purposes of this Homebuyer Certification, the following definitions
will apply:
• "Moderate Income Households" means households whose incomes are from 81 to (and
including) 120 percent of the Contra Costa Median Income,as adjusted for family size and
published by the California Department of Housing and Community Development pursuant to
Health and Safety Code Section 50093.
• "Low Income Households" means households whose incomes are from 51 to (and including) 80
percent of the Contra Costa Median Income, as adjusted for family size and published by
the California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50079.5.
• "Very Low Income Households" means households whose incomes do not exceed 50 percent
of the Contra Costa Median Income, as adjusted for family size and published by the
California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50105.
I/We, the undersigned, being first duly sworn, state that I/we have read the foregoing and
answered fully and truthfully each of the following questions for all persons who are to occupy the
above property for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period beginning on the
later of the date on which the above persons first occupy the residence, including income described
in (a) below, but excluding all income described in (b) below, is
$
(a) The amount set forth above includes all of the following
income (unless such income is described in (b) below):
W:Persona l\DoughertyValley\Exhi bitC.DoughertyValley.9.01 1
(i) all wages and salaries, over-time pay, commissions, fees, tips
and bonuses and other compensation for personal services, before payroll
deductions;
(ii) net annual income from the operation of a business or
profession or from the rental of real or personal property (without
deducting expenditures for business expansion or amortization of capital
indebtedness). (An allowance for depreciation of assets used in a business or
profession may be deducted, based on straight-line depreciation, as provided
in Internal Revenue Service regulations. Include any withdrawal of cash or
assets from the operation of a business or profession, except to the extent
the withdrawal is reimbursement of cash or assets invested in the operation
by the above persons):
(iii) interest and dividends (include all income from assets as set
forth in item 7(b) below and include any withdrawal of cash or assets from
an investment, except to the extent the withdrawal is reimbursement of
cash or assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions, disability
or death benefits and other similar types of periodic receipts including a
lump-sum payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation, workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment
includes an amount specifically designated for shelter and utilities that is
subject to adjustment by the welfare assistance agency in accordance with
the actual cost of shelter and utilities, include as income (a) the amount of
the allowance or grant exclusive of the amount specifically designated for
shelter or utilities, plus (b) the maximum amount that the welfare assistance
agency could in fact allow the above persons for shelter and utilities. (If the
welfare assistance is ratably reduced from the standard of need by applying
a percentage, the amount calculated under clause (b) shall be the amount
resulting from one application of the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons
not residing in the dwelling;
W:Personal\boughertyValley\ExhibitC.boughertyValley.9.01 2
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are
residing in the unit; and
(ix) any earned income tax credit to the extent it exceeds income
tax liability.
(b) The following income is excluded from the amount set forth
above:
(i) Income from employment of children (including foster
children) under the age of 1S years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
and worker's compensation), capital gains and settlement for personal 'or
property losses;
(iv) Amounts received by the household that are specifically for,
or in reimbursement of, the cost of medical expenses. for any household
member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the
student or to the education institution, and amounts paid by the Government
to a veteran, for use in meeting the costs of tuition, fees, books, equipment,
materials, supplies, transportation, and miscellaneous personal expenses of
the student. Any amount of such scholarship or payment to a veteran not
used for the above purposes that is available for subsistence is to be
included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
W:Personal\DoughertyVaIley\ExhibitC.DoughertyVaIley.9.01 3
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use
under a Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of
out-of-pocket expenses incurred (special equipment, clothing,
transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
(ix) Temporary, nonrecurring or sporadic income (including gifts);
or
(x) Amounts specifically excluded by any other federal statute
from consideration as income for purposes of determining eligibility or
benefits under a category of assistance programs that includes assistance
under the United States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income or
contributions were included in item 6) has any savings, stocks, bonds, equity in real property or
other form of capital investment (excluding interests in Indian trust lands, but including the value
of any assets disposed of for less than fair market value (including a disposition in trust, but not in
a foreclosure or bankruptcy sale) during the previous two years in excess of the consideration
received therefore), provide:
(a) the total value of all such assets owned by all such persons: $_, and
(b) the amount of income expected to be derived from such assets in the
12-month period commencing this date: $
W:Personal\DoughertyValley\ExhibitC.DoughertyValley.9.01 4
We acknowledge that all of the above information is relevant to the status of the subject project
and comply with affordable housing requirements of Contra Costa County. I/we certify that a) our
current gross annual household income is as set forth above; b)that the number of persons residing
in our house is ; c) that we intend to occupy the house as our principal place of residence; and
d) we hereby grant permission to (lender) to disclose information in our application files to
Contra Costa County representatives in order to verify our income. I (we) declare under penalty of
perjury that the foregoing is true and correct.
Date:
Purchaser
Purchaser
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
W:Personal\DoughertyVal ley\ExhibitC.DoughertyVaIley.9.01 5
FOR COMPLETION BY SELLER/LENDER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a)above is greater than $5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the.amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than,$0, enter
$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line I(c) less than [50%, 80%, 120%] of Median Income for
the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low, Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
* "Median Income for the Area" means median income for the Contra Costa County, adjusted for
family size as published by the California Department of Housing and Community Development
pursuant to Health & Safety Code Sections 50079.5 and 50105.
W:Persona l\DoughertyValley\ExhibitC.DoughertyVaIley.9.01 6
ATTACHMENT_C
Form of Disclosure Statement
W APersonaRBOARDOR DERSU 0.2.01.doughertyvalley 7
CONTRA COSTA COUNTY
DOUGHERTY VALLEY AFFORDABLE HOUSING PROGRAM
DISCLOSURE STATEMENT
This statement applies to the following area:
[Include map of project area or site description.]
State Housing Element law requires California jurisdictions to analyze existing and future
housing needs for all economic segments of the population and develop specific policies
and programs to meet the identified needs. In order to assist the County in meeting the
requirements of State Housing Element law, the Contra Costa County Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program (DVAHP) in
March of 1994. The DVAHP was incorporated by reference into agreements between the
County, Shapell Industries of Northern California, and Windemere Ranch Partners-BLC
governing the future development of 11,000 housing units in the Dougherty Valley.
According to the requirements of the DVAHP, a minimum of 25 percent of all housing
units developed within Dougherty Valley must be affordable to very-low, low and
moderate-income households. In addition, at least 10 percent of the affordable units
must be affordable to very-low income households and 25 percent must be affordable to
low-income households.
Assuming all 11,000 housing units are developed, the DVAHP will result in the provision
of 2,750 affordable housing units in the Dougherty Valley, including 275 affordable to
very-low income households, 688 for low-income households, and 1,788 for moderate- .
income households. While the affordable housing obligation may be met through the
development of either rental or ownership housing, current plans indicate that the
majority of the affordable units will be apartments.
Information concerning the status of the DVAHP including the location of proposed sites
for the affordable units may be obtained from Shapell Industries (408/946-1550) and
Windemere Ranch Partners (Lennar Communities 925/416-4949).
Very-low income households are defined as households with incomes at or below 50 percent of the area
median income for Contra Costa County(AMI)as adjusted for household size and defined by the State
Department of Housing and Community Development. Low-income households are defined as households
with incomes at/below 80 percent AMI,while moderate income households have incomes atibelow 120
percent AMI.For example, in December of 2000,the maximum allowable income for a four person very-
low income household was$33,800,the maximum income for a low-income household was$67,600 and
$81,100 for a moderate income household.
Please sign this Disclosure Statement in the space provided below and return it to:
Shapell Industries Lennar Communities
100 North Milpitas Blvd. 5960 Inglewood Drive, # 220
Milpitas, CA 95035 Pleasanton, CA 94588
I have read and understand the above Dougherty Valley Affordable Housing Disclosure
Statement including provisions that require the provision of housing affordable to very-low,
low and moderate-income households in the Dougherty Valley.
By: Dated:
Signature of Buyer/Renter
Print name of Buyer/Renter
kkh/w/word/dvahp7
ATTACHMENT D-1
Form of Condition of Approval for Final Map Approval
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
W:\Personal\BOARDORDERS\10.2.01.doughertyvalley 8
GALL+' RANCH PHASE II
NEIGHBORHOOD 11
FINAL MAP
AFFORDABLE HOUSING RESERVATION
Parcel (the "Parcel") is designated as a site for housing affordable to .
Very Low Income and Low Income Households (as these terms are defined in
the Dougherty Valley Affordable Housing Program). This Parcel with the
recording of this Final Map is reserved for housing for Very Low Income and
Low Income Households. As a result of this reservation, no initial application
for the development of this parcel shall be made that does not contain a
minimum of 160 units of housing for Very Low Income and Low Income
Households. Should the housing for Very Low Income and Low .Income
Households not be funded with the initial application for financing the Parcel or
that portion of the Parcel designated for Very Low Income and Low Income
Households shall remain available, consistent with items V.E.2. and 3. of the
Dougherty Valley Affordable Housing Program.
ATTACHMENT 0-2
Form of Condition of Approval for Final Development Plans
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
W APersonahBOARDORDERM 10.2.O l.doughertyval ley 9
GALE RANCH PHASE II
FINAL DEVELOPMENT PLAN
AFFORDABLE HOUSING
CONDITION OF APPROVAL
Neighborhood 11 in Gale Ranch Phase II has been designated by Shapell as a
site for housing affordable to Very Low Income and Low Income Households
(as these terms are defined in the Dougherty Valley Affordable Housing
Program). This neighborhood, with the recording of the first Final Map for Gale
Ranch Phase II shall contain a reservation such that no development application
for Neighborhood 11 shall be approved by the County that does not contain it
minimum of 160 units of housing affordable to Very Low Income and Low
Income Households. Any such application for housing affordable to Very Low
Income and Low Income Households shall be accompanied by an executed
regulatory agreement.
Should the housing affordable to Very Low Income and Low Income
Households not be funded with the initial application for financing, that portion
of the Neighborhood 11 parcel designated for Very Low Income and Low
Income Households shall remain available consistent with items E.E.2.and 3.of
the Dougherty Valley Housing Program.
EXHIBIT E-1
Agreement to Amend Affordable Housing Program (Shapell Industries)
W APersonal\BOARDORDERS\10.2.01.doughertyvalley 10
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
SHAPELL INDUSTRIES,INC.
OWNER
Dated as of
October_, 2001
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM (the
"Agreement") is dated as of October 2001, by and between COUNTY OF CONTRA
COSTA, a political subdivision of the State of California ("County"), and Shapell Industries,
Inc., a Delaware corporation("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the
Dougherty Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley
Specific Plan in December 1996 (as so amended, the"Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a-jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the
Board of Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24,
1994 (the"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2,708 acres of land within the
Dougherty Valley (the"Shapell Property")which, under the terms of the Specific Plan, is
designated for the development of, among other things, up to 5,830 residential dwelling units
(the "Shapell Project");
WHEREAS, Owner and County are parties to those certain Development
.Agreements, dated January 11, 1995 and April 8, 1996 (the "Development Agreements"), which
Development Agreements were entered into pursuant to Section 65864 et seq. of the California
Government Code, and Section 3.05 of which Development Agreements requires compliance
with the DVAHP;
WHEREAS, the Development Agreements require the development of the Shapell
Project to be undertaken in a manner consistent with the terms and provisions of, among other
things, that certain Agreement to Settlement Litigation, dated May 11, 1994, by and between
County, the City of San Ramon, the Town of Danville, Owner and the predecessor-in-interest to
Windemere BLC Land Company, LLC (the "Settlement Agreement"), which Settlement
Agreement provides (in Recital M) that the DVAHP may be amended upon the written
agreement of the County, Owner and Windemere.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend
the DVAHP as anticipated by the Settlement Agreement, and to enter into this Agreement
concurrently with County and Windemere BLC Land Company, LLC entering into a similar
agreement, in the form attached hereto as Exhibit A (the "Windemere Agreement"), to so amend
the DVAHP.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
affd housing umbrella agmt(Ver. 3)/72272/053
Section 1. Amendments of DVAHP. County may amend the
DVAHP as follows:
(a) The definition of"Moderate Income Rent"contained in Section III of the
DVAHP may be amended to read:
`Moderate Income Rent'shall mean the lesser of(1) the monthly
market rate rent; or (2) a monthly rent which is no greater than
30% of 100% of the Median Monthly Income for a one person
household, including a Utility Allowance,for studio units; a
monthly rent which is no greater than 30% of 110% of the Median
Monthly Income for a two person household, including a Utility.
Allowance,for one-bedroom units; a monthly rent which is no
greater than 30% of 120% of the Median Monthly Income for a
three person household, including a Utility Allowance,for two-
bedroom units; and a monthly rent which is no greater than 30%
of 120% of the Median Monthly Income for a four person
household, including a Utility Allowance,for three-bedroom units.
(b) Section V(B)(2) of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following
minimum terms:
(i) For-sale Moderate Income Units shall be maintained as affordable
for the term governed by its subsidy source. Since the Dougherty
Valley Affordable Housing Program has been developed such that
there is no expectation of public participation (as defined below),
the Moderate Income for-sale units are not generally expected to
have an affordability term.
(ii) For-rent Moderate Income Units and specialized facilities with
Afbrdable Units shall be maintained as such for a minimum of
thirty (30)years if the project is subject to public participation
(which term means the provision of financial assistance in the form
of, among other things, a loan, grant, loan guarantee, or waiver of
rents/modification of development standards granted solely to
enhance the affordability of the units, etc), and twenty (20)years
if no public participation is provided. Developers/Owners of for-
rent Moderate Income Units and specialized facilities shall enter
into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the
development.
Nothing in the foregoing shall preclude a longer term of affordability as
may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP
is hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C (LowNery Low Income), respectively.
The "Certification of Homebuyer Eligibility" form and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E, respectively, are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B, Exhibit C, Exhibit D, and
affd housing umbrella agmt(Ver. 3)n2272/053
Exhibit E are intended to be standard forms to be used by County and Owner in connection with
affordable housing projects that may be proposed within the Shapell Project. Any regulatory
agreements so entered into between County and Shapell shall be in substantially the form of one
of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income project, a
combination of these forms) subject only to those modifications that may be necessary or
appropriate to reflect the circumstances or terms of any particular affordable housing transaction.
The forms attached hereto as Exhibit D and Exhibit E may be used subject only to those
modifications that may be necessary or appropriate to reflect the circumstances or terms of any
particular affordable housing transaction.
Section 2. No Other Amendments. Except as otherwise specified herein, the
DVAHP shall remain unchanged and a binding obligation of the parties as specified in
Section 3.05 of the Development Agreements.
Section 3. Effective Date of Agreement. This Agreement shall become effective
immediately upon the execution and delivery hereof and of the Windemere Agreement by all
parties to such agreements. This Agreement shall authorize only the amendments specified in
Section 1 above, all of which shall be adopted by the County Board of Supervisors, if at all,
concurrently with its approval of this Agreement.
Section 4. Governing Law. This Agreement shall be governed by
the laws of the State of California.
Section 5. Notices. Any notice required to be given hereunder shall be made in
writing and shall be given by personal delivery, certified or registered mail, postage prepaid,
return receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Mr. Chris Truebridge, Division Manager
Shapell Industries of Northern California
P.O. Box 361169
100 North Milpitas Blvd.
Milpitas, CA 95035
Attention: Chris Truebridge
With a copy'to: McCutchen, Doyle, Brown & Enersen, LLP
P.O. Box V
1333 N. California Boulevard, Suite 210
Walnut Creek, CA 94596
Attention: Cecily T. Talbert
Notice shall be deemed given three business days after the date of mailing.
affd housing umbrella agmt(Ver. 3)n2272i053
Section 6. Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof
shall not in any way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of County and Owner and their respective successors and assigns.
Section 8. Multiple Counterparts. This Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument, and
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, County and Owner have executed this Agreement by
duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL
By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
SHAPELL INDUSTRIES, INC., a Delaware
corporation
By: T
Its: X VP
By: /
Its:
affd housing umbrella agmt(Ver. 3)/72272/053
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
I
,: State of California
ss.
� County of
On O M , before �&kC
Dat N
ame and Title of Officer(e.g.,'Ja a Doe,Notary Public")
personally appeared C � \S
�p Name(s)of Signer(s) •I-
;'�personally known to me
fi ❑ 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 I
capacity(ies), and that by his/her/their
JANICE T.lC2USE signature(s) on the instrument the person(s), or
is
commission If 1318697 y Z the entity upon behalf of which the person(s)
acted, executed the instrument.� -d Notary Public-Calitomle I
Santa Clara County
MY Comm.EgbwAug 24,2005 WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
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fiThough the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
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Capacity(ies) Claimed by Signer
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❑ Corporate Officer—Title(s):
Partner—❑ Limited ❑ General
❑ Attorney in Fact
❑• Trustee
<< ❑ Guardian or Conservator
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❑ Other:
Signer Is Representing:
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0 1999 National Notary Association•9350 De Solo Ave..P.O.Dox 2402•Chatsworth,CA 91313-2402•www.nationainotary.org Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827
EXHIBIT A
WINDEMERE AGREEMENT
See Attachment E-2 for this Agreement.
A-1
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EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOWNERY LOW)
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORINT
For reproduction purposes the above exhibits have not been.reproduced.
They are attached to this October 16 Board Order as (Attachment A-2,
A-1, B, and C respectively)
EXHIBIT E-2
Agreement to Amend Affordable Housing Program (Windemere BLC)
W APersonaRBOARDORDEM 10.2.01.doughertyvalley 11
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and .
WINDEMERE BLC LAND COMPANY,LLC
OWNER
Dated as of
October 2001
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AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM (the"Agreement")
is dated as of October 2001,by and between COUNTY OF CONTRA COSTA,a political
subdivision of the State of California("County"), and Windemere BLC Land Company,LLC,a
California limited liability company("Owner").
WITNESSETH:
WHEREAS,the Board of Supervisors of Contra Costa County adopted the Dougherty Valley
Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in December 1996
(as so amended,the"Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income community in
the Dougherty Valley in order to promote a jobs-housing balance and address affordable housing needs
set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994(the
"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2379 acres of land within the Dougherty
Valley(the"Windemere Property")which,under the terms of the Specific Plan, is designated for the
development of, among other things,up to 5,170 residential dwelling units (the Windemere Project");
WHEREAS, Owner and County are parties to that certain Development Agreement, dated
January 18, 1996(the"Development Agreement"),which Development Agreement was entered into
pursuant to Section 65864 et seq.of the California Government Code, and Section 3.05 of which
Development Agreement requires compliance with the DVAHP;
WHEREAS, the Development Agreement requires the development of the Windemere Project to
be undertaken in a manner consistent with the terms and provisions of,among other things,that certain
Agreement to Settlement Litigation, dated May 11, 1994,by and between County,the City of San
Ramon,the Town of Danville,Owner's predecessor-in-interest and Shapell Industries,Inc. (the
"Settlement Agreement"),which Settlement Agreement provides(in Recital M)that the DVAHP may be
amended upon the written agreement of the County,Owner and Shapell.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend the DVAHP as
anticipated by the Settlement Agreement, and to enter into this Agreement concurrently with County and
Shapell entering into a similar agreement, in the form attached hereto as Exhibit A(the"Shapell
Agreement"),to so amend the DVAHP.
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein, and other good and valuable consideration,the receipt and sufficiency of which hereby are
acknowledged,the County and the Owner hereby agree as follows:
Section 1. Amendments of DVAHP. County may amend the DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
'Moderate Income Rent'shall mean the lesser of(1) the monthly market rate rent; or
(2) a monthly rent which is no greater than 30%of 100%of the Median Monthly Income for a
one person household, including a Utility Allowance,for studio units; a monthly rent which is no
greater than 30%of 110%of the Median Monthly Income for a two person household, including
a Utility Allowance,for one-bedroom units; a monthly rent which is no greater than 30%of
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120%of the Median Monthly Income for a three person household, including a Utility
Allowance,for two-bedroom units; and a monthly rent which is no greater than 30%of 120%of
the Median Monthly Income for a four person household, including a Utility Allowance,for
three-bedroom units.
(b) Section V(B)(2)of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following minimum
terms:
(i) For-sale Moderate Income Units shall be maintained as affordable for
the term governed by its subsidy source. Since the Dougherty Valley
Affordable Housing Program has been developed such that there is no
expectation of public participation (as defined below), the Moderate
Income for-sale units are not generally expected to have an affordability
term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of thirty
(30)years if the project is subject to public participation (which term
means the provision offinancial assistance in the form of, among other
things, a loan, grant, loan guarantee, or waiver of rents/modification of
development standards granted solely to enhance the affordability of the
units, etc.), and twenty(20)years if no public participation is provided.
Developers/Owners of for-rent Moderate Income Units and specialized
facilities shall enter into a Regulatory Agreement(form to be provided
by the County)prior to the issuance of any buildingpermit required for
the development.
Nothing in the foregoing shall prelude a longer term of
affordability as may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP is
hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C(LowNery Low Income), respectively.
The"Certs ic'�`ation of Homebuyer Eligibility' or'�in na d "Disclosure Form" attached hereto as
Exhibit D and Exhibit E,respectively,are hereby added as exhibits to the DVAHP and shall be
used where requiredthereby. The forms attached hereto as Exhibit B,Exhibit C,Exhibit D and
Exhibit E are intended to be standard forms to be used by County an�Owner m conts
necwith
affoRd-abTe housing projects that may be proposed within the Windemere Project. Any regulatory
agreements entered into between County and Windemere shall be in substantially the form of
one of Exhibit B or Exhibit C(or, in the case of a combined moderate/low/very low income
project, a comGination o t iese forms), subject only to those modifications that may be necessary
or appropriate to reflect the circumstances or terms of any particular affordable housing
transaction. The forms attached hereto as Exhibit D and Exhibit E may be used subject only to
those modifications that may be necessary or appropriate to reflect the circumstances or terms of
any particular affordable housing transaction
Section 2. No Other Amendments. Except as otherwise specified herein,the DVAHP shall
remain unchanged and a binding obligation of the parties as specified in Section 3.05 of the Development
Agreement.
Section 3. Effective Date of Agreement. This Agreement shall become effective immediately
upon the execution ane ivery Ot tfUS Agreement and of the Shapell Agreement by all parties to such
agreements. This Agreement shall authorize only the amendments specified in Section 1 above, all of
which shall be adopted by the County Board of Supervisors, if at all, concurrently with its approval of
this Agreement.
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Nvc-60261
Section 4. Governing Law. This Agreement shall be governed by the laws of the State of
California.
Section 5. Notices. Any notice required to be given hereunder shall be made in writing and shall
be given by personaTd-eivery,certified or registered mail,postage prepaid,return receipt requested,at
the addresses specified below, or at such other addresses as may be specified in writing by the parties
hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4t'Floor,North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Windemere BLC Land Company,LLC
3130 Crow Canyon Place, Suite 310
San Ramon,California 94583
Attention: Pete Petersen
With a copy to: R. Clark Morrison
Morrison&Foerster LLP .
101 Ygnacio Valley Road
Suite 450
Walnut Creek,CA 94596
Notice shall be deemed given three business days after the date of mailing.
Section 6. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable,the via i il'd ty, legality and enforceability of the remaining portions hereof shall not in any
way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of County and Owner an t eir respective successors and assigns.
Section 8. Multiple Counte arts. This Agreement may be simultaneously executed in multiple
counterparts,all of which shall constitute one and the same instrument,and each of which shall be
deemed to be an original.
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IN WITNESS WHEREOF, County and Owner have executed this Agreement by duly authorized
representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
WINDEMERE BLC LAND COMPANY LLC, a
California limited liability company
By: Brookfield Bay Area Holdings LLC,
a Delaware limited liability ompany
Member
By:
Its:
By:
Its: 14P A[Fn
By: Centex Homes,
a Nevada general partnership
Member
By: Centex Real Estate Corporation,
a Nevada general partnership
Managing General Partner
By
David Barclay
Division President
By: LEN-OBS Windemere,LLC,
a Delaware limited liability company
Member
By: Lennar Homes of California, Inc.,
a California corporation
Managing Member
By:
Greg McWi lams
Vice President
4
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EXHIBIT A
SHAPELL AGREEMENT
See Attachment E-1 for this Agreement
A-]
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EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOW/VERY LOW)
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORM
For reproduction purposes the above exhibits have not been.reproduced.
They are attached to this October 16 Board Order as (Attachment A-2,
A-1) B, and C respectively)
r � f
ATTACHMENT A-I
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Very Low/Low Income Projects)
in
W APcrsonallBOAR DOR D ERSl10.2.0I.doughcrtyva I ley
4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CONTRA COSTA COUNTY
COMM UN[TY DEVELOPMENT DEPARTMENT
651 Pine Street,411,Floor,North Wing
Martinez,CA 94553
ATl'N: Deputy Director-Redevelopment
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[LOW/VERY LOW INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
we-59473
10/10/01
TABLE OF CONTENTS
Section 1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition,Construction, Equipping and Completion of the Project..............:......4
Section 3. Residential Rental Property. ...........................................................................................5
Section 4. Low/Very Low Income Households/Rents. ...............................................................6
Section5. Indemnification.................................................................................................................9
Section6. Consideration....................................................................................................................9
Section7. Reliance............................................................................................................................1.9
Section 8. Sale or Transfer of the Project.......................................................................................10
Section9. Term..................................................................................................................................10
Section 10. Covenants to Run With the Land...............................................................................10
Section 11. Burden and Benefit.......................................................................................................11
Section 12. Uniformity;Common Plan..........................................................................................11
Section13. Enforcement...................................................................................................................11
Section 14. Recording and Filing....................................................................................................12
Section 15. Payment of Fees............................................................................................................12
Section16. Governing Law. .............................................................................................................12
Section 17. Amendments....................................................................................:............................12
Section18. Notice..............................................................................................................................12
Section19. Severability....................................................................................................................13
Section 20. Multiple Counterparts. ................................................................................................13
EXHIBIT A-DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATE OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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wc-59473
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the "Regulatory Agreement") is dated as of October , 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the"Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2,1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994,
and amended such program on 2001 (as so amended, the "DVAHP"); and
WHEREAS,on 2001, County and Owner entered into that certain
Agreement to Amend Affordable Housing Program, pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Goveriunent Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and,under the terms of Owner's Development
Agreement with County,is entitled to develop,among other things, up to 5,170 dwelling units
on the Property in accordance with the Specific Plan and subject to the terms and
provisions of, among other things, that certain May 11, 1994 Agreement to Settle Litigation
between the County, the Town of Danville, the City of San Ramon,Shapell Industries, Inc., and
Windemere Ranch Partners,which Settlement Agreement imposes certain conditions to the
development of more than 8500 dwelling units within the Dougherty Valley (the
it Project");
WHEREAS,in December 1996 the County approved a vesting tentative map and final
development plan(No. ) for the phase of development of the
Project(the "Tentative Map") and, on . 2001, approved a large-
lot final subdivision map (the "Final Map"), which Final Map has been recorded in the Official
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Records of Contra Costa County and which creates certain parcels within "Area A" as shown on
the Tentative Map for the construction of rental units;
WHEREAS, Parcel^as shown on the Final Map is a_-acre parcel upon which
Owner intends to construct rental units to be rented to low and very low income
households as more fully provided below (collectively, the "Low Income Units" and the "Very
Low Income Units," respectively).
NOW,THEREFORE,in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
].hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person (together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exhibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low,Low, and Moderate Income Households on the Property. The
Dougherty Valley Specific Plan requires that 25% of the units on the Property
be Affordable Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Program Compliaiice" means the Certificate to be filed by the
Owner with the County under Section 4(f) hereof, which shall be substantially in the form
attached hereto as Exhibit D.
"Cornpletiott Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County, pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on
2001.
"Hoitsing Act" means the United States Housing Act of 1937, as amended, or its
successor.
2
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"Incottte Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
"Lower Income" means generically all households of Very Low, Low, and Moderate
Income.
"Lory Inconte Houseltolds" means households whose annual incomes are from 51 to (and
including) 80 percent of the Contra Costa County Median Income, as adjusted for family size
and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Toro Income Rent"means the lesser of(1) the monthly market rate rent,including a
Utility Allowance; or (2) a monthly rent which is no greater than one hundred percent (100%)
of the Section 8 Existing Program Fair Market Rents,'established in accordance with 24 CFR
Part 882,effective at the time of occupancy,less the Utility Allowance then in effect.
"Lore Income Units"means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by,Low Income Households.
"Median Incorne" means the annual median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health &Safety Code Sections 50079.5 and 50105.
"Median Montltly Income" means 1/12 of the Median Income.
"Moderate Income Houseltolds" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of(1) the monthly market rate rent; or (2) for
studio units, a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income,including a Utility Allowance;for one-bedroom units, a monthly rent which.is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance; for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of. the Median
Monthly Income,including a Utility Allowance; and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income,including a Utility
Allowance. Rents for studio units shall be calibrated utilizing the one-person Median Income
Household income; one-bedroom units shall use 110% of two-person Median Income
Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income, etc.
"Owner" means and its successors and assigns, as owner of the
Project Site.
"Project" means the [Lorv]IVenj Lou)] Income Units to be constructed by Owner on
the Project Site.
3
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"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site,and all fixtures and other property of the Owner located on, or
used in connection with, such buildings, structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A,which is attached hereto and by this reference incorporated herein.
"Qualified Project.Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is thirty (30) years after the
date on which at least fifty percent(50%) of the dwelling units in the Project were first
occupied.
"Regulatory Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
"Utilihj Allowance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
"Ven/ Lozu Income Households" means households whose annual incomes do not exceed
50 percent of the Contra Costa County Median Income for Contra Costa County, as adjusted for
family size and published by the State Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Very Low Incorne Rent" means a monthly rent, which is no greater than 30% of 50% of
the Median Monthly Income including a Utility Allowance. Rents for studio units shall be
calibrated utilizing the one-person Very Low Income Household income; one-bedroom units
shall use a two-person Very Low Income Households income, two-bedroom units shall use a
three-person Very Low Income Households income, etc.
"Very Lozv Irrcorrre Units" means the rental units to be constructed by Owner on the
Project Site and rented to, or held available for occupancy by,Very Low Income Iouseholds.
Unless the context clearly requires otherwise, as used in this Regulatory Agreement,
words of the masculine, feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa, when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition, Construction,Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as follows:
(a) Subject to market conditions, Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
4
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(b) The Owner reasonably expects to complete the construction of the Project
by ,200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed and completed Completion Certificate.
(e) Owner will not take or omit to take, as applicable, any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned,managed and operated as a residential rental project for a term equal to the Qualified
Project Period.To that end, and for the term of the Qualified Project Period, the Owner hereby
represents,covenants,warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Low and Very Low Income Households, and the Owner
will own, manage and operate the Project as a project to provide multifamily residential
rental property to Low and Very Low Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living, sleeping, eating,cooking and sanitation for a single person or a
family, including a sleeping area,bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink.
(c) Owner shall include, in any and all rental agreements,provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel, motel, dormitory, fraternity house,sorority house,rooming house,nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium snap and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Low or Very Low Income Households.
5
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(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road, street or stream, and all of the Project Facilities will
comprise a single geographically and functionally.integrated project for residential
rental property, as evidenced by the ownership,management, accounting and operation
of the Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided, however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents, contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units.
(i) During the Qualified Project Period,Owner will not discriminate on the
basis of race,creed,color, sex, sexual orientation,national origin or ancestry, religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental, use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. [T_07vl[Vel2l L07VI Income Households/Rents. Owner hereby represents,
warrants and covenants as follows:
(a) Commencing on the Completion Date, [Lozv][Ve►y Lozv]shall occupy
percent (_%) of all completed and occupied units in the Project; and for
the Qualified Project Period no less than_% of the total number of completed units of
the Project shall at all times be rented to and occupied by [Lozv][Venj Lozv] Income
Households. For the purposes of this paragraph (a), a vacant unit which was most
recently occupied by a [Lozv][Venj Lozv] Income Household is treated as rented and
occupied by a [Lozv][Very I,ozv] Income Household until reoccupied. Tenants in the
[L ozu][Very LOW] Income Units will have equal access and enjoyment to all common
facilities of the Project.
(b) The rents for the [Low][Venj Lozv]Income Units shall not exceed the
[LoTv][Venj LOW].Income Rent, respectively.
(c) No tenant qualifying as a [Lozv][Veny Lozol Income Household shall be
denied continued occupancy of a unit in the Project because,after admission,such
tenant's Adjusted Income increases to exceed the qualifying limit for[Lozv][Venj LOW]
Income Households; provided,however, that should a [Very Lozv, Lozv] Income
Household's Adjusted Income, as of the most recent determination thereof, exceed one
hundred forty percent(140%) of the applicable income limit for a [Venj LOW, Lozv]
6
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Income Household of the same family size, the next available unit of comparable or
smaller size must be rented to (or held vacant and available for immediate occupancy
by) a [Venj Lozv, LozVJ Income Household; and provided further that,until such next
available unit is rented to a [Very LOW, Lozv] Income Household, the former [Ven./ Lozv,
Lozv] Income Household who has ceased to qualify as such shall be deemed to continue
to be a [Vent/Low, Low]Income Household for purposes of the percent(_%)
requirement of Section 4(a) hereof until the next available unit of comparable or smaller
size is rented to a qualifying[Very LOW, L071)].Income Household.
(d) The Owner will obtain, complete, and maintain on file Income
Certifications from each [Lozv][Very Lozv]Income Iousehold in the form attached hereto
as Exhibit C, dated no more than thirty (30) days prior to the initial occupancy of such
[Low][Very Lozv) Income Household in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner will also obtain,complete, and maintain on file an
annual Income Certification from each[Very Lou;, Lou)] Income Household, dated the
anniversary of the date of initial occupancy in the Project by such.[Venj LOW, Lozv]
Income Household. A copy of the most recent Income Certification for[Venj Lozv, Low]
Income Household commencing or continuing occupation of a [Very Low, Lozv]Income
Unit shall be attached to each report to be filed with the County. The Owner shall make
a good faith effort to verify that the income provided by an applicant in an Income
Certification is accurate by taking one or more of the following steps as a part of the
verification process: (1) obtain a pay stub for the most recent three months, (2) obtain an
income tax return for the most recent tax year, (3) conduct a TRW Credit Bureau or other
similar search, (4) obtain an income verification from the applicant's current employer,
(5) obtain an income verification from the Social Security Administration and/or the
California Department of Social Services if the applicant receives assistance from either
of such agencies, or (6) if the applicant is unemployed and does not have an income tax
return, obtain another form of independent verification. The Owner shall also engage in
a review of bank statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
[LozV][Ven/ Lozv]Income Units, and will.permit any duly authorized representative of
the County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the [Low][Venj LOW] Income
Units.
(f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a)hereof,by [Lozv][Very Lozv]
Income Households during such period; (ii) that either (A) no unremedied default has
occurred under this Regulatory Agreement or (B) a default has occurred,in which event
the certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
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(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a [Low][Venj Low] Income
Unit shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the [Low][Ven/Lozv] Income
Household in determining qualification for occupancy of the [Lozv][Venj Lozv]Income
Unit,and that any material misstatement in such certification (whether or not
intentional) will be cause for inunediate termination of such lease or rental agreement.
Each such lease or rental agreement shall also provide that the tenant's income is subject
to annual certification in accordance with Section 4(d) hereof and that if upon any such
certification such tenant's Adjusted Income exceeds one hundred forty percent(140%) of
the applicable income limit for a [Lozv][Very Lozv] Income Tenant of the same family size,
such tenant shall, subject to (b) above,cease to qualify as a [Venj Low, Low]Income
Tenant, and such tenant's rent is subject to increase. A lease addendum setting forth
procedures for handling changes in tenant status shall be part of each lease agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period, Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement,units required to.be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
[Low][Venj Low] Income Unit at the date of expiration or termination, and at a rent not
greater than the amount set forth in Section 4(b), until the earliest of any of the
following occurs: (1) the household's income exceeds 140 percent of the maximum
eligible income for [Lozv][Venj LOW]Income Households; (2) the household voluntarily
moves or is evicted for "good cause" ("good cause" for the purposes of this subsection,
means the nonpayment of rent or facts necessary to prove major, or repeated minor,
violations of material provisions of the occupancy agreement which detrimentally affect
the health and safety of other persons or the structure, the fiscal integrity of the Project,
or the purposes or special programs of the Project); (3) two years after the expiration of
the Qualified.Project Period; or (4) Owner pays the relocation assistance and benefits to
tenants as provided in subdivision (b) of Section 7264 of the Government Code. During
the three years prior to expiration of the Qualified Project Period, Owner shall continue
to make available to eligible households [Lozv][Venj Low]Income Units that have been
vacated to the same extent that nonreserved units are made available to nonelig.ible
households.
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(1) All tenant lists,applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
shall be maintained as required by the County, in a reasonable condition.for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County in writing,but (i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to,extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local, state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify
and hold harmless the County and its officers, directors, officials, employees and agents from
and against any and all claims made by any person (including claims for reasonable attorneys'
fees and costs) arising from any act or omission of the Owner or any of its agents, contractors,
servants, employees or licensees in connection with the design,construction, installation,
operation,use,occupancy, maintenance,or ownership of the Project (including any failure to
comply with laws, ordinances,rules or regulations of public authorities relating thereto or the
terms an d provisions of this Agreement); except to the extent any such claim arises from the
sole negligence of the County. In the event that any such claim, action or proceeding is brought
against the County or any of its officers, directors, officials, employees or agents,with respect to
which indemnity may be sought hereunder, the Owner, upon written notice from County, shall
assume the investigation and defense thereof,including the employment of counsel and the
payment of all expenses. County shall have the right to employ separate counsel in any such
action or proceedings and to participate in the defense thereof, and Owner shall pay the
reasonable fees and expenses of such separate counsel;provided that County shall have the
right to review and reasonably approve or disapprove any compromise or settlement.The
provisions of this Section 5 shall survive the term of this Regulatory Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP, for
the purpose, among others, of inducing Owner to develop the Project Site and, construct, equip
and operate the Project with [L ozv][Very LOW]Income Units. In consideration of these
development approvals by the County, the Owner has entered into this Regulatory Agreement
and has agreed to restrict the uses to which this Project can be put on the terms and conditions
set-forth herein.
Section 7. Reliance, The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder,the County may
rely upon statements and certificates of the [Lozo][Venl Lozu] Income Households and upon
audits of the books and records of the Owner pertaining to the Project. In determining whether
any default or lack of compliance by the Owner exists under this Regulatory Agreement, the
9
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e
County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),without obtaining the prior written consent of the County,which consent of the
County shall be given upon receipt by the County of (i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large inixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above,or (c) the purchaser or assignee is capable, financially and otherwise,of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the.term.ination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and.record appropriate instruments of release and discharge of
the terms hereof;provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement in
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants, reservations and restrictions set forth in this
Regulatory Agreement.The County and the Owner hereby declare their express intent that the
covenants, reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however,-that on the termination of tlus Regulatory Agreement said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants, reservations and
restrictions, regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project-is rendered less valuable thereby.The
County, and the Owner hereby further declare their understanding and intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by [Lozv][Very L ozv) Income Tenants, the intended beneficiaries of such
covenants,reservations and restrictions,and by furthering the public purposes for which the
project was approved.
Section 12. Uniformity;Common Plan. The covenants, reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a conunon
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have.been
given by the County to the Owner,then County may declare an "Event of Default" to have
occurred hereunder, provided,however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days, such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at lav or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project; and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
Owner hereby grants to the County the option,upon the expiration of 60 days after the
giving of the notice to Owner of Owner's default under this Regulatory Agreement, until the
expiration of the Qualified Project Period or the termination of this Regulatory Agreement,
whichever first occurs, to lease up to ' percent(_%) of the units in the Project for a rental
of$1.00 per unit per year for the purpose of subleasing such units to [1 ozv][Venj L ozv] Income
Households,but only to the extent necessary to comply with the provisions of Section 3 and
Section 4. The option granted in the preceding sentence shall be effective only if the Owner has
not instituted corrective action within such 60-day period. Upon the achievement,by the
Owner or the County,of compliance with the requirements of Section 3 and Section 4,County
and Owner will terminate any lease entered into between Owner and County pursuant to this
section and County shall assign to Owner any subleases entered into by County hereunder. In
the event County exercises its option hereunder, the County shall snake diligent effort to
sublease [Lozrr][Very Lozv] Income Units to [Lozv][Venj Lozv]Income Households for m.ontlily
11
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rental amounts equivalent to those collected from tenants of similar units in the Project but,
provided County exercises such diligent efforts, shall not be required to obtain such rental
amounts. Any rental paid under any such sublease shall be paid to the Owner after County has
been reimbursed for any expenses incurred in connection with such sublease. All fees, costs
and expenses of the County incurred in taking any action pursuant to this Section shall be the
sole responsibility of the Owner. The Owner hereby agrees that specific enforcement of the
Owner's agreements contained herein is the only means by which the County may obtain the
benefits of such agreements made by the Owner herein and the Owner therefore agrees to the
imposition of the remedy of specific performance against it in the case of any default by the
Owner hereunder. The remedies set forth in this Section 13 shall be County's exclusive
remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement-
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County may
reasonably request. The Owner shall pay all fees and charges incurred in comlection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in.an amount equal the greater of i) $5,000/year; or ii) $75.00/[Lozv][Venj Lowl Income
Unit/year,payable in advance in annual installments commencing on and
continuing each thereafter,until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments.
(a) This Regulatory Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Contra Costa,California.The parties requesting such amendment shall
notify the other parties to this Regulatory Agreement of the proposed amendment.
Section 13. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery, certified or registered mail, postage prepaid, return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
• County: County of Contra Costa
County Administration Building
651 Pine Street
4`"Floor, North Wing
Martinez,California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
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Notice shall be deemed given three business days after the date of mailing.
Section 1.9. Severability. I.f any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or unpaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
13
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date fust above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
14
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS.my hand and official seal.
Signature (Seal)
we-59473
State of California )
) ss
County of )
On before me, , Notary Public,
personally appeared , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person,or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low,Low,Moderate] Income Units occupied by [Very Low,Low,
Moderate] Income Households:
units are occupied by households with children.; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low, Low,Moderate] Income Households who terminated their
rental.agreements during the previous twelve (12) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. Thhe number of two-bedroom [Very Low, Low, Moderate] Income Units is
6. The number of one-bedroom[Very Low, Low,Moderate] Income Units is
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7. The number of former [Very Low, Low] Income Households whose Adjusted Income
has exceeded 140% of the applicable income limit for a [Very Low, Low] Income
Households of the same family size and have therefore ceased to qualify as [Very Low,
Low] Income Households is
Owner:
By:
Its:
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project] "
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Plus utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn, state that I/we have read and answered
fully and trutlnfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons fust occupy the apartment or
sign a lease with respect to the apartment,including income described in (a) below,but
excluding all income described in (b) below,is$
(a) The amount set forth above includes all of the following income (unless
such income is described in (b) below):
(i) all wages and salaries, over-time pay, commissions,fees, tips and
bonuses and other compensation for personal services,before payroll
deductions;
(ii) net annual income from the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
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business or profession, except to the extent the withdrawal is reimbursement of
cash or assets invested in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities,insurance policies,retirement funds,pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation,workers` compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities, plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets,such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation), capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees,books, equipment,materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment, clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6) has any savings, stocks, bonds, equity in real property
or other form of capital investment(excluding interests in Indian trust lands,but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor), provide:
(a) the total value of all such assets owned by all such persons: $ , and
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
Head of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Cominission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
fancily of Lower Income,may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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POR COMPLETION BY PROJECT OWNER ONLY:
1. Calculation of eligible income:
(A). Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than S5,000,enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0, enter$0): ' $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
11. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
.The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
C-5
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IV. Nuinber of apartment unit assigned:
(enter here and on page one)
Owner
* "Median Income for the Area" means median income for the Contra Costa County, adjusted
for family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned, being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate,the following percentages of completed residential units
in the Project(i) are occupied by [Very Low, Low, Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Household vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low,Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
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EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
E-1
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ATTACHMENT A-2
Form of Regulatory Agreement and Declaration
Of Restrictive Covenants
(Moderate Income Projects)
W:\Personal\BOARDORDERS\10.2.01.doughertyvalley 5
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CON'CRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
651 Pine Sheet,411'Floor,North Wing
Martinez,CA 94553
ATTN: Deputy Director-Redevelopinent
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
[MODERATE INCOME]
By and Between
COUNTY OF CONTRA COSTA
and
OWNER
Dated as of
October , 2001
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TABLE OF CONTENTS
Section 1. Definitions and Interpretation........................................................................................2
Section 2. Acquisition,Construction, Equipping and Completion of the Project.....................4
Section 3. Residential Rental Property. ...........................................................................................4
Section 4. Moderate Income Households/Rents. ..........................................................................5
Section5. Indemnification.................................................................................................................8
Section6. Consideration....................................................................................................................8
Section7. Reliance..............................................................................................................................8
Section 8. Sale or Transfer of the Project.........................................................................................9
Section9. Term.....................................................................................................................................9
Section 1.0. Covenants to Run With the Land.................................................................................9
Section 11. Burden and Benefit.......................................................................................................10
Section 12. Uniformity;Common Plan..........................................................................................1.0
Section13. Enforcement...................................................................................................................10
Section 14. Recording and Filing....................................................................................................11
Section 15. Payment of Fees............................................................................................................11
Section16. Governing Law. ............................................................................................................11
Section17. Amendments.................................................................................................................11
Section1.8. Notice..............................................................................................................................11
Section19. Severability....................................................................................................................12
Section 20. Multiple Counterparts. ................................................................................................12
EXHIBIT A-DESCRIPTION OF PROJECT SITE
EXHIBIT B-STATISTICAL REPORT TO COUNTY
EXHIBIT C-CERTIFICATION OF HOUSEHOLD ELIGIBILITY
EXHIBIT D-CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT E-COMPLETION CERTIFICATE
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (the"Regulatory Agreement") is dated as of October 2001,by and between
COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"),
and a California (the "Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty
Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in
December 1996 (as so amended, the "Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set-forth in the County General Plan-Housing Element,
WIEREAS, in furtherance of the Specific Plan's affordable housing goals, the Board of
Supervisors adopted the Dougherhj Valley Affordable Housing Program on March 24, 1994, and
amended such program on 2001. (as so amended, the "DVAHP"); and
WHEREAS, on 2001, County and Owner entered into that certain
Agreement to Amend Affordable Housing Program, pursuant to which agreement Owner agreed to
those certain amendments to the DVAHP approved by the Board of Supervisors on
, 2001.
WHEREAS, development approvals in the Dougherty Valley are subject to
Development Agreements adopted pursuant to Section 65864 et seq. of the California
Government Code,which Development Agreements require compliance with the DVAHP;
WHEREAS, Owner is the owner of approximately acres of land within the
Dougherty Valley (the " Property") and, under the terms of Owner's
Development Agreement with County,is entitled to develop, among other things,up to
dwelling units on the Property in accordance with the Specific Plan and
subject to the terms and provisions of, among other things, that certain May 11, 1994 Agreement
to Settle Litigation between the County, the Town of Danville, the City of San Ramon,Shapell
Industries,Inc. and Windemere Ranch Partners,which Settlement Agreement imposes certain
conditions to the development of more than 8500 dwelling units within the Dougherty Valley
(the Project");
WHEREAS,in December 1996 the County approved a vesting tentative map and final
development plan (No. ) for the phase of development of the
Project(the "Tentative Map") and, on , 2001, approved a final
subdivision snap (the "Final Map"), which Final Map has been recorded in the Official Records
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of Contra Costa County and which creates certain parcels within"Area A" as shown on the
Tentative Map for the construction of rental units;
WHEREAS, Parcel—as shown on the Final Map is a_-acre parcel upon which
Owner intends to construct_rental units to be rented to moderate income households as
more fully provided below (collectively, the "Moderate Income Units").
NOW,THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation. Capitalized terms shall have the respective
meanings given to such terms herein. The following terms shall have the respective meanings
assigned to them in this Section 1 unless the context in which they are used clearly requires
otherwise:
"Adjusted Income" means the adjusted annual income of a person(together with the
adjusted income of all persons who intend to reside with such person in one residential unit) as
calculated in the manner prescribed in Exlnibit C.
"Affordable Units" means any one or more of the units reserved for occupancy by Very
Low, Low, and Moderate Income Households on the Property. The Dougherty
Valley Specific Plan requires that 25% of the units on the Property be Affordable
Units.
"Area" means the Oakland Primary Metropolitan Statistical Area.
"Certificate of Continuing Prograrn Compliance" means the Certificate to be filed by the
Owner with the County under Section 4(f)hereof,which shall be substantially in the form
attached hereto as Exhibit D.
"Completion Certificate" means the certificate of completion of the construction of the
Project required to be delivered to the County,pursuant to Section 2 of this Regulatory
Agreement, and which shall be substantially in the form attached to this Regulatory Agreement
as Exhibit E.
"Completion Date" means the date of the completion of the construction and equipping of
the Project.
"DVAHP" means Dougherty Valley Affordable Housing Program, as amended by the
Board of Supervisors pursuant to the mutual agreement of the parties on , 2001.
"Housing Act" means the United States Housing Act of 1937, as amended,or its
successor.
"Income Certification" means a Certification of Household Eligibility in the form attached
as Exhibit C hereto or in such other form as may be provided by the County to the Owner.
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"Median Income" means the aruival median income for the Contra Costa County,
adjusted for family size as published by the California Department of Housing and Community
Development pursuant to Health &Safety Code Sections 50079.5 and 50105.
"Median Monthly Income" means 1/12 of the Median Income.
"Moderate Income Households" means households whose annual incomes are from 81 to
(and including) 120 percent of the Contra Costa County Median Income, as adjusted for family
size and published by the California Department of Housing and Community Development
pursuant to Health&Safety Code Sections 50079.5 and 50105.
"Moderate Income Rent" means the lesser of (1) the monthly market rate rent;or (2) for
studio units, a monthly rent which is no greater than 30% of 100% of the Median Monthly
Income, including a Utility Allowance;for one-bedroom units, a monthly rent which is no
greater than 30% of 110% of the Median Monthly Income, including a Utility Allowance;for
two-bedroom units, a monthly rent which is no greater than 30% of 120% of the Median
Monthly Income, including a Utility Allowance;and for three-bedroom units, a monthly rent
which is no greater than 30% of 120% of the Median Monthly Income, including a Utility
Allowance. Rents for studio units shall be calculated utilizing the one-person Median Income
Household income; one-bedroom units shall use 110% of two-person Median Income
.Household income; two-bedroom units shall use 120% of a three-person Median Income
Household income,etc.
"Moderate Income Units" means the rental units to be constructed by Owner on the
Project Site and rented to,or held available for occupancy by, Moderate Income Households.
"Ozoner" means and its successors and assigns, as owner of the
Project Site.
"Project" means the Moderate Income Units to be constructed by Owner on the
Project Site.
"Project Facilities" means all buildings, structures and other improvements to be
constructed on the Project Site, and all fixtures and other property of the Owner located on, or
used in connection with,such buildings,structures and other improvements constituting the
Project.
"Project Site" means Parcel_as shown on the Final Map and more fully described on
Exhibit A,which is attached hereto and by this reference incorporated herein.
"Qualified Project Period" means the period beginning on the date the Completion
Certificate is delivered to County and ending on the date which is twenty (20) years after the
date on which at least fifty percent(50%) of the dwelling Louts in the Project were first
occupied. [20-year Qualified Project Period Assumes no public participation as defined in revised
DVAHP.]
"Regulatonj Agreement" means this Regulatory Agreement and Declaration of Restrictive
Covenants.
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"Utilihl Allowance" means the allowance for tenant purchased utilities adopted by the
Contra Costa Housing Authority and approved by the U.S. Department of Housing and Urban
Development for the Section 8 Existing Rent Subsidy/Section 8 Voucher Programs.
Unless the context clearly requires otherwise,as used in this Regulatory Agreement,
words of the masculine,feminine or neuter gender shall be construed to include each other
gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa, when appropriate. This Regulatory Agreement and all the terms
and provisions hereof shall be construed to effectuate the purposes set forth herein and to
sustain the validity hereof.
Section 2. Acquisition,Construction, Equipping and Completion of the Project. Owner
hereby represents as of the date hereof, and covenants and agrees for the term of the Qualified
Project Period, as follows:
(a) Subject to market conditions, Owner will commence construction of the
Project and will proceed with due diligence to complete the same.
(b) The Owner reasonably expects to complete the construction of the Project
by 200_.
(c) The statements made in the various certificates delivered by the Owner to
the County are true and correct.
(d) On the Completion Date of the Project, the Owner will submit to the
County a duly executed.and completed Completion Certificate.
(e) Owner will not take or ornit to take, as applicable, any action if such
action or omission would in any way cause the project to be developed in a manner
contrary to the requirements of this Regulatory Agreement.
(f) Owner shall file a quarterly certification of compliance with the terms of
this Regulatory Agreement in the form attached as Exhibit D.
Section 3. Residential Rental Property. Owner hereby agrees that the Project will be
owned, managed and operated as a residential rental project for a term equal to the Qualified
Project Period.To that end, and for the term of the Qualified Project Period, the Owner hereby
represents,covenants, warrants and agrees as follows:
(a) The Project will be constructed for the purpose of providing multifamily
residential rental property to Moderate Income Households, and the Owner will own,
manage and operate the Project as a project to provide multifamily residential rental
property to Moderate Income Households.
(b) All of the dwelling units in the Project will be similarly-constructed units,
and each dwelling unit in the Project will contain complete separate and distinct
facilities for living,sleeping, eating, cooking and sanitation for a single person or a
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family, including a sleeping area, bathing and sanitation facilities and cooking facilities
equipped with a cooking range,refrigerator and sink.
(c) Owner shall include,in any and all rental agreements,provisions
prohibiting the dwelling units in the Project from being used on a transient basis, or as a
hotel, motel, dormitory,fraternity house, sorority house,rooming house, nursing home,
hospital, sanitarium, rest home or trailer court or park.
(d) Owner shall not during the Qualified Project Period take any steps in
connection with a conversion to cooperative or condominium ownership or use, other
than filing a condominium map and final tract map on the Project and obtaining a Final
Subdivision Public Report from the California Department of Real Estate.
(e) All of the dwelling units in the Project will be completed and made
available for rental on a continuous basis to members of the general public and the
Owner will not give preference to any particular class or group in renting the dwelling
units in the Project, except to the extent that dwelling units are required to be leased or
rented to Moderate Income Households.
(f) The Project Site consists of a parcel or parcels that are contiguous except
for the interposition of a road, street or stream, and all of the Project Facilities comprise
a single geographically and functionally integrated project for residential rental
property, as evidenced by the ownership, management, accounting and operation of the
Project.
(g) No dwelling unit in the Project shall be occupied by the Owner;
provided,however, that if the Project contains five or more dwelling units, this
subsection shall not be construed to prohibit occupancy of such dwelling units by one or
more resident managers or maintenance personnel any of whom may be the Owner or
Owner's agents,contractors or employees acting in such management or maintenance
capacity.
(h) During the Qualified Project Period, the units reserved for Lower Income
Households shall be of comparable quality and offer a range of sizes and number of
bedrooms available to other tenants,have substantially the same equipment and
amenities, and shall not be geographically segregated from such other units. [For mixed-
income projects only.]
(i) During the Qualified Project Period,Owner will not discriminate on the
basis of race,creed, color, sex,sexual orientation,national origin or ancestry, religion,
marital status, age, disability, source of income or receipt of public assistance or housing
assistance in connection with the rental,use, or occupancy of units in the Project or in
connection with the employment or application for employment of persons for
operation and management of the Project, and all contracts, applications and leases
entered into for such purposes shall contain a nondiscrimination clause to such effect.
Section 4. Moderate Income Households/Rents. Owner hereby represents,warrants
and covenants as follows:
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(a) Commencing on the Completion Date, Moderate Income Households
shall occupy percent(_%) of all completed and occupied units in the
Project; and for the Qualified Project Period no less than_% of the total number of
completed units of the Project shall at all times be rented to and occupied by Moderate
Income Households. For the purposes of this paragraph (a), a vacant unit which was
most recently occupied by a Moderate Income Household is treated as rented and
occupied by a Moderate Income Household until reoccupied. Tenants in the Moderate
Income Units will have equal access and enjoyment to all common facilities of the
Project.
(b) The rents for the Moderate Income Units shall not exceed the Moderate
Income Rent.
(c) No tenant qualifying as a Moderate Income Household shall be denied
continued occupancy of a unit in the .Project because, after admission, such tenant's
Adjusted Income increases to exceed the qualifying limit for Moderate Income
Households.
(d) The Owner will obtain, complete, and maintain on file Income
Certifications from each Moderate Income Household in the form attached hereto as
Exhibit C, dated no more than thirty (30) days prior to the initial occupancy of such
Moderate Income Iousehold in the Project, and will provide such additional
information as may be required to verify eligibility in the future by the County. A copy
of each such certification shall be provided to County within thirty (30) days of the
receipt thereof by Owner. Owner shall make a good faith effort to verify that the
income provided by an applicant in an Income Certification is accurate by taking one or
more of the following steps as a part of the verification process: (1) obtain a pay stub for
the most recent three months, (2) obtain an income tax return for the most recent tax
year, (3) conduct a TRW Credit Bureau or other similar search, (4) obtain an income
verification from the applicant's current employer, (5) obtain an income verification
from the Social Security Administration and/or the California Department of Social
Services if the applicant receives assistance from either of such agencies, or (6) if the
applicant is unemployed and does not have an income tax return, obtain another form
of independent verification. The Owner shall also engage in a review of bank
statements of that tenant for the prior six (6) months.
(e) The Owner will maintain complete and accurate records pertaining to the
Moderate Income Units, and will permit any duly authorized representative of the
County to inspect the books and records of the Owner pertaining to the Project,
including those records pertaining to the occupancy of the Moderate Income Units.
(.f) The Owner shall prepare and submit to the County, thirty days after the
end of each month until ninety-five percent(95%) of the units in the Project are
occupied and will prepare and submit at the end of each calendar quarter thereafter, a
Certificate of Continuing Program Compliance in the form of Exhibit D hereto executed
by the Owner stating (i) the percentage of the dwelling units of the Project which were
occupied or treated as occupied pursuant to subsection (a) hereof,by Moderate Inc6me
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Households during such period; (ii) that either (A) no unremedied default has occurred
under this Regulatory Agreement or (B) a default has occurred, in which event the
certificate shall describe the nature of the default in detail and set forth the measures
being taken by the Owner to remedy such default.
(g) Owner 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 program under Section 8 of the Housing Act, or its successor. Owner shall
not apply selection criteria to Section 8 certificate or voucher holders that is more
burdensome than criteria applied to all other prospective tenants.
(h) Each lease or rental agreement pertaining to a Moderate Income Unit
shall contain a provision to the effect that the Owner has relied on the income
certification and supporting information supplied by the Moderate Income Household
in determining qualification for occupancy of the Moderate Income Unit, and that any
material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease or rental agreement.
(i) The requirements of this Regulatory Agreement shall be administered
and compliance therewith monitored by the County,but the County shall incur no
liability hereunder as a consequence thereof.
(j) At least twelve months prior to the expiration of the Qualified Project
Period, Owner shall provide the notices as and to the extent required by Section
65863.10 of the Government Code.
(k) Following the expiration or termination of the Qualified Project Period,
except in the event of foreclosure, deed in lieu of foreclosure, eminent domain, or action
of a federal agency preventing enforcement, units required to be reserved for occupancy
pursuant to Section 4(a) shall remain available to any eligible household occupying a
Moderate Income Unit at the date of expiration or termination, and at a rent not greater
than the amount set forth in Section 4 (b),until the earliest of any of the following
occurs: (1) the household's income exceeds 140 percent of the maximum eligible income
for Moderate Income Households; (2) the household voluntarily moves or is evicted for
"good cause" ("good cause".for the purposes of this subsection, means the nonpayment
of rent or facts necessary to prove major, or repeated minor, violations of material
provisions of the occupancy agreement which detrimentally affect the health and safety
of other persons or the structure, the fiscal integrity of the Project, or the purposes or
special programs of the Project); (3) two years after the expiration of the Qualified
Project Period; or (4) Owner pays the relocation assistance and benefits to tenants as
provided in subdivision (b) of Section 7264 of the Government Code. During the three
years prior to expiration of the Qualified Project Period,Owner shall continue to make
available to eligible households Moderate Income Units.that have been vacated to the
same extent that nonreserved units are made available to noneligible households.
(1) All tenant lists,applications and waiting lists relating to the Project shall
at all times be kept separate and identifiable from any other business of the Owner and
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shall be maintained as required by the County,in a reasonable condition for proper
audit and subject to examination during business hours by representatives of County.
(m) Owner shall not permit occupancy in any unit in the Project by more
persons than is permissible under the Section 8 of the Housing Act household size
standards.
Any of the foregoing requirements of the County may be expressly waived by the
County u1 writing,but(i) no waiver by the County of any requirement of this Section 4 shall, or
shall be deemed to, extend to or affect any other provision of this Regulatory Agreement; and
(ii) any requirement of this Section 4 shall be void and of no force and effect if counsel to the
County and the Owner render a written opinion or receive a judgement that any requirement
would be in conflict with local, state or federal law.
Section 5. Indemnification. Owner hereby covenants and agrees that it shall indemnify,
defend and hold harmless the County and its officers, directors, officials, employees and agents
from and against any and all claims made by any person (including claims for reasonable
attorneys' fees and costs) arising from any act or omission of the Owner or any of its agents,
contractors, servants, employees or licensees in connection with the design, construction,
installation,operation,use,occupancy,maintenance,or ownership of the Project(including any
failure to comply with laws, ordinances, rules or regulations of public authorities relating
thereto or the terms and provisions of this Agreement); except to the extent any such claim
arises from the sole negligence of the County. In the event that any such claim, action or
proceeding is brought against the County or any of its officers, directors, officials, employees or
agents,with respect to which indemnity may be sought hereunder, the Owner, upon written
notice from County,shall assume the investigation and defense thereof, including the
employment of counsel and the payment of all expenses. County shall have the right to employ
separate counsel in any such action or proceedings and to participate in the defense thereof,
and Owner shall pay the reasonable fees and expenses of such separate counsel;provided that
County shall have the right to review and reasonably approve or disapprove any compromise
or settlement. The provisions of this Section 5 shall survive the term of this Regulatory
Agreement.
Section 6. Consideration. The County approved the Specific Plan, and the DVAHP,for
the purpose,among others, of inducing Owner to develop the Project Site and, construct, equip
and operate the Project with Moderate Income Units. In consideration of these development
approvals by the County, the Owner has entered into this Regulatory Agreement and has
agreed to restrict the uses to which this Project can be put on the terms and conditions set forth
herein.
Section 7. Reliance. The County and the Owner hereby recognize and agree that the
representations and covenants of the Owner set forth herein may be relied upon by all persons
interested in the project. In performing its duties and obligations hereunder, the County may
rely upon statements and certificates of the Moderate Income Households and upon audits of
the books and records of the Owner pertaining to the Project. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, the
County may conduct any investigation into or review of the operations or records of the
Owner, or may rely solely on any written notice or certificate delivered to it by the Owner with
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respect to the occurrence or absence of a default unless it knows that the notice or certificate is
erroneous or misleading.
Section 8. Sale or Transfer of the Project. Owner hereby covenants and agrees not to
voluntarily sell, transfer or otherwise dispose of the Project or any portion thereof(other than
for individual tenant use as contemplated hereunder to any person other than to which the
Project and the Project Site may be transferred without the further review or consent of
County),without obtaining the prior written consent of the County, which consent of the
County shall be given upon receipt by the County of (i) evidence reasonably satisfactory to the
County that the Owner's purchaser or transferee has assumed in writing and in full, the
Owner's duties and obligations under this Regulatory Agreement(which may include an
opinion of counsel of the transferee that the transferee has duly assumed the obligations of the
Owner under this Regulatory Agreement and that such obligations and this Regulatory
Agreement are binding on the transferee), and (ii) evidence reasonably satisfactory to the
County that either (a) the purchaser or assignee has at least three years' experience in the
ownership, operation and management of large mixed-income or affordable rental housing
projects,without a record of material violations of discrimination restrictions or other state or
federal laws or regulations applicable to such projects, or (b) the purchaser or assignee agrees to
retain a property management firm with the experience and record described in subclause (a)
above, or (c) the purchaser or assignee is capable, financially and otherwise, of complying with,
and is willing to comply with, the terms of all agreements binding on such purchaser or
assignee relating to the Project. It is hereby expressly stipulated and agreed that any voluntary
sale, transfer or other disposition of the Project in violation of this Section shall be ineffective to
relieve the Owner of its obligations under this Regulatory Agreement.
Section 9. Term. This Regulatory Agreement and all and several of the terms hereof
shall become effective upon its execution and delivery. This Regulatory Agreement shall
remain in full force and effect for the periods provided herein and shall terminate as to any
provision not otherwise provided with a specific termination date at the end of the Qualified
Project Period. Upon the termination of the terms of this Regulatory Agreement, the parties
hereto agree to execute, deliver and record appropriate instruments of release and discharge of
the terms hereof; provided,however, that the execution and delivery of such instruments shall
not be necessary or a prerequisite to the termination of this Regulatory Agreement mi
accordance with its terms.
Section 10. Covenants to Run With the Land. The Owner hereby subjects the Project
(including the Project Site) to the covenants, reservations and restrictions set forth in this
Regulatory Agreement.The County and the Owner hereby declare thea express intent that the
covenants,reservations and restrictions set forth herein shall be covenants running with the
land and shall pass to and be binding upon the Owner's successors and assigns;provided,
however, that on the termination of this Regulatory Agreement said covenants,reservations
and restrictions shall.expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof shall conclusively be held to
have been executed, delivered and accepted subject to such covenants, reservations and
restrictions,regardless of whether such covenants,reservations and restrictions are set forth in
such contract, deed or other instruments.
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Section 11. Burden and Benefit. The County and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern
the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The
County, and the Owner hereby further declare their understanding and 'intent that the benefit
of such covenants touch and concern the land by enhancing and increasing the enjoyment and
use of the Project by Moderate Income Tenants,the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the public purposes for which the project was
approved.
Section 12. Uniformity;Common Plan. The covenants,reservations and restrictions
hereof shall apply uniformly to the entire Project in order to establish and carry out a common
plan for the use, Project and improvement of the Project Site.
Section 13. Enforcement. If the Owner defaults in the performance or observance of
any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement,
and if such default remains uncured for a period of 60 days after notice thereof shall have been
given by the County to the Owner, then County may declare an "Event of Default" to have
occurred hereunder,provided,however, that if the default stated in the notice is of such a
nature that it cannot be corrected within 60 days, such default shall not constitute an Event of
Default hereunder so long as the Owner institutes corrective action within said 60 days and
diligently pursues such action until the default is corrected. Following the declaration of an
Event of Default hereunder the County may, at its option, take any one or more of the following
steps:
(i) by mandamus or other suit, action or proceeding at law or in equity,
require the Owner to perform its obligations and covenants hereunder or enjoin any acts
or things which may be unlawful or in violation of the rights of the County hereunder;
(ii) have access to and inspect, examine and make copies of all of the books
and records of the Owner pertaining to the Project;and
(iii) take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations,covenants and agreements of the Owner hereunder.
The Owner.hereby grants to the County the option,upon the expiration of 60 days after
the giving of the notice to Owner of the Owner's default-under this Regulatory Agreement,
until the expiration of the Qualified Project Period or the termination of this Regulatory
Agreement,whichever first occurs, to lease up to percent(_%) of the units in the
Project for a rental of$1.00 per unit per year for the purpose of subleasing such units to
Moderate Income Households, but only'to the extent necessary to comply with the provisions
of Section 3 and Section 4.The option granted in the preceding sentence shall be effective only
if the Owner has not instituted corrective action within such 60-day period. Upon the
achievement,by the Owner or the County, of compliance with the requirements of Section 3
and Section 4,County and Owner will terminate any leases entered into between Owner and
County pursuant to the option provided herein and County shall assign to Owner any
subleases entered into by County hereunder. In the event County exercises its option
hereunder, the County shall make diligent effort to sublease Moderate Income Units to
Moderate hicom.e Households for monthly rental amounts equivalent to those collected from
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tenants of similar units in the Project but, provided County exercises such diligent efforts, shall
not be required to obtain such rental amounts. Any rental paid under any such sublease shall
be paid to the Owner after County has been reimbursed for any expenses incurred in
connection with such sublease. All fees,costs and expenses of the County incurred in taking
any action pursuant to this Section shall be the sole responsibility of the Owner. The Owner
hereby agrees that specific enforcement of the Owner's agreements contained herein is the only
means by which the County may obtain the benefits of such agreements made by the Owner
herein and the Owner therefore agrees to the imposition of the remedy of specific performance
against it in the case of any default by the Owner hereunder. The remedies set forth in this
Section 13 shall be County's exclusive remedies for violations of this Agreement.
Section 14. Recording and Filing. The Owner shall cause this Regulatory Agreement
and all amendments and supplements hereto and thereto, to be recorded and filed in the real
property records of the County of Contra Costa and in such other places as the County,may
reasonably request. The Owner shall pay all fees and charges incurred in connection with any
such recording.
Section 15. Payment of Fees. The Owner shall pay the County's annual administrative
fee in an amount equal to the greater of(i) $5000/year; or (ii) $75.00/Moderate Income
Unit/year, payable in advance in annual installments commencing on and
continuing on each thereafter,until the end of the Qualified Project Period. The
annual administrative fee shall increase at the rate of 2% per annum.
Section 16. Governing Law. This Regulatory Agreement shall be governed by the laws
of the State of California.
Section 17. Amendments. This Regulatory Agreement shall be amended only by a
written instrument executed by the parties hereto or their successors in title, and duly recorded
in the real property records of the County of Contra Costa,California. The parties requesting
such amendment shall notify the other parties to this Regulatory Agreement of the proposed
amendment.
Section 18. Notice. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery, certified or registered mail, postage prepaid,return
receipt requested, at the addresses specified below,or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4'Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner:
With a copy to:
11
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Notice shall be deemed given three business days after the date of mailing.
Section 19. Severability. If any provision of this Regulatory Agreement shall be invalid,
illegal or unenforceable, the validity,legality and enforceability of the remaining portions
hereof shall not in any way be affected or impaired thereby.
Section 20. Multiple Counterparts. This Regulatory Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument,
and each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the County and the Owner have executed this Regulatory
Agreement by duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
OWNER
By:
Its:
By:
Its:
13
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State of California )
ss
County of )
On before me, , Notary Public,
personally appeared ,personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59065
State of California )
ss
County of )
On before me, , Notary Public,
personally appeared ,personally.known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
we-59065
EXHIBIT A
DESCRIPTION OF PROJECT SITE
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EXHIBIT B
STATISTICAL REPORT TO COUNTY
Reporting Period: Date:
As of the date hereof:
1. Of the [Very Low,Low,Moderate] Income Units occupied by [Very Low,Low,
Moderate] Income Households:
units are occupied by households with children; and
units are currently occupied by elderly households with a member of age 62 or
over.
2. The number of [Very Low,Low,Moderate] Income Households who terminated their
rental agreements during the previous twelve (1 2) month period is
3. The number of units rented to new [Very Low, Low, Moderate] Income Households
during the last twelve (12) month period is
4. The family names of each household currently occupying a [Very Low, Low, Moderate]
Income Unit are listed on the schedule attached hereto.
5. The number of two-bedroom [Very Low, Low, Moderate] Income Units is
6. The number of one-bedroom[Very Low, Low, Moderate] Income Units is
Owner:
By:
Its:
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EXHIBIT C
CERTIFICATION OF HOUSEHOLD ELIGIBILITY
RE: [name and address of Project]
Apartment Number: Floor Number:
Square footage: Number of Bedrooms:
Rent:
Initial monthly rent: $
Phis utility allowance
TOTAL Housing Cost$
I/We, the undersigned,being first duly sworn, state that I/we have read and answered
fully and truthfully each of the following questions for all persons who are to occupy the unit
in the above apartment Project for which application is made,all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period
beginning on the later of the date on which the above persons fust occupy the apartment or
sign a lease with respect to the apartment, including income described in (a)below,but
excluding all income described in (b) below, is$
(a) The amount set forth above includes all of the following_income (unless
such income is described in (b) below):
(i.) all wages and salaries,over-time pay,commissions, fees, tips and
bonuses and other compensation for personal services, before payroll
deductions;
(ii) net annual income from.the operation of a business or profession
or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness). (An allowance
for depreciation of assets used in a business or profession may be deducted,
based on straight-line depreciation, as provided in Internal Revenue Service
regulations. Include any withdrawal of cash or assets from the operation of a
C-1
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business or profession, except to the extent the withdrawal is reimbursement of
cash or assets invested.in the operation by the above persons):
(iii) interest and dividends (include all income from assets as set forth
in item 7(b) below and.include any withdrawal of cash or assets from an
investment, except to the extent the withdrawal is reimbursement of cash or
assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies,retirement funds,pensions, disability or
death benefits and other similar types of periodic receipts including a lump-sum
payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation,workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment includes
an amount specifically designated for shelter and utilities that is subject to
adjustment by the welfare assistance agency in accordance with the actual cost of
shelter and utilities,include as income (a) the amount of the allowance or grant
exclusive of the amount specifically designated for shelter or utilities,plus (b)
the maximum amount that the welfare assistance agency could in fact allow the
above persons for shelter and utilities. (If the welfare assistance is ratably
reduced from the standard of need by applying a percentage, the amount
calculated under clause (b) shall be the amount resulting from one application of
the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling;
(viii) all regular pay,special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose dependents are residing
in the unit;and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(.i) Income from employment of children (including foster children)
under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
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and worker's compensation), capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for, or in
reimbursement of, the cost of medical expenses for any household member:
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the student or
to the education institution, and amounts paid by the Government to a veteran,
for use in meeting the costs of tuition,fees, books, equipment,materials,
supplies, transportation, and miscellaneous personal expenses of the student.
Any amount of such scholarship or payment to a veteran not used for the above
purposes that is available for subsistence is to be included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
(b) Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use under a
Plan to Attain Self-Sufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of out-
of-pocket expenses incurred (special equipment, clothing, transportation,
child care, etc.) and which are made solely to allow participation in a
specific program;
(ix) Temporary,nonrecurring or sporadic income (including gifts); or
(x) Amounts specifically excluded by any other federal statute from
consideration as income for purposes of determining eligibility or benefits under
a category of assistance programs that includes assistance under the United
States Housing Act of 1937.
7. If any of the persons described in column 1 above (or any person whose income
or contributions were included in item 6) has any savings, stocks,bonds, equity in real property
or other form of capital investment (excluding interests in Indian trust lands, but including the
value of any assets disposed of for less than fair market value (including a disposition in trust,
but not in a foreclosure or bankruptcy sale) during the previous two years in excess of the
consideration received therefor),provide:
(a) the total value of all such assets owned by all such persons: $ ,and
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(b) the amount of income expected to be derived from such assets in the 12-
month period commencing this date: $
We acknowledge that all of the above information is relevant to the status of the subject
project and rental unit complying with affordable housing requirements of Contra Costa
County as set forth in a Regulatory Agreement and Declaration of Restrictive Covenants
between the Owner and Contra Costa County.
Date:
I lead of Household
Spouse
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
.......................................................................................................................................................................................................................................................................................................................................
NOTE TO PROJECT OWNER: A vacant unit previously occupied by individuals or a
family of Lower Income, may be treated as occupied by individuals or a family of Lower
Income until reoccupied for a period not to exceed 31 consecutive days.
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FOR COMPLETION BY PROJECT OWNER ONLY:
1. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a) above is greater than 55,000,enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than$0, enter$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line 1(13)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line 1(c) less than [50%, 80%, 120%] of Median Income
for the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of [Very Low, Low,
Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
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IV. Number of apartment unit assigned:
(enter here and on page one)
Owner
*
"Median Income for the Area" means median income for the Contra Costa County, adjusted
for.family size as published by the California Department of Housing and Community
Development pursuant to Health&Safety Code Sections 50079.5 and 50105.
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EXHIBIT D
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
The undersigned,being the authorized representative of (the "Owner") has read and is
thoroughly familiar with the provisions of the Regulatory Agreement and Declaration of
Restrictive Covenants with the County of Contra Costa.
As of the date of this certificate, the following percentages of completed residential units
in the Project (i) are occupied by [Very Low, Low,Moderate] Income Households (as such term
is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for
such occupancy and have been so held continuously since the date a Very Low Income
Iousehold vacated such unit; as indicated:
Occupied by [Very Low, Low, Moderate] Income Households: percent
Unit Nos.
Held vacant for occupancy
continuously since last
occupied by [Very Low, Low,Moderate]
Income Household: percent
Unit Nos.
Vacant Units: percent
Unit Nos.
The undersigned hereby certifies that the Owner is not in default under any of the terms
and provisions of the above documents.
Owner:
By:
Its:
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EXHIBIT E
COMPLETION CERTIFICATE
The undersigned hereby certifies that all portions of the Project were substantially
completed and available either for occupancy or use by tenants in the Project as of
Owner:
By:
Its:
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ATTACHMENT B
Certification of Homebuyer Eligibility
i
W APersonaRBOARDORDERS\10.2.01.doughertyvalley 6
CERTIFICATION OF HOMEBUYER ELIGIBILITY
RE: [name and address of Property] Purchase Price $
Developers of new homes in the Dougherty Valley are subject to conditions set forth in the Contra
Costa County Dougherty Valley Affordable Housing Program (DVAHP). .The purchasers of homes
subject to the provisions of the DVAHP are required to meet certain eligibility requirements,
including income eligibility. For purposes of this Homebuyer Certification, the following definitions
will apply:
• "Moderate Income Households" means households whose incomes are from 81 to (and
including) 120 percent of the Contra Costa Median Income, as adjusted for family size and
published by the California Department of Housing and Community Development pursuant to
Health and Safety Code Section 50093.
• "Low Income Households" means households whose incomes are from 51 to (and including) 80
percent of the Contra Costa Median Income, as adjusted for family size and published by
the California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50079.5.
• "Very Low Income Households" means households whose incomes do not exceed 50 percent
of the Contra Costa Median Income,as adjusted for family size and published by the
California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50105.
I/We, the undersigned, being first duly sworn, state that I/we have read the foregoing and
answered fully and truthfully each of the following questions for all persons who are to occupy the
above property for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members Relationship Social
of the to Head of Security Place of
Household Household Age Number Employment
HEAD
6. The anticipated income of all the above persons during the 12-month period beginning on the
later of the date on which the above persons first occupy the residence, including income described
in (a) below, but excluding all income described in (b) below, is
(a) The amount set forth above includes all of the following
income (unless such income is described in (b) below):
W:Persona I\DoughertyValley\ExhibitC.DoughertyVaIley.9.01 1
(i) all wages and salaries, over-time pay, commissions, fees, tips
and bonuses and other compensation for personal services, before payroll
deductions;
(ii) net annual income from the operation of a business or
profession or from the rental of real or personal property (without
deducting expenditures for business expansion or amortization of capital
indebtedness). (An allowance for depreciation of assets used in a business or
profession may be deducted, based on straight-line depreciation, as provided
in Internal Revenue Service regulations. Include any withdrawal of cash or
assets from the operation of a business or profession, except to the extent
the withdrawal is reimbursement of cash or assets invested in the operation
by the above persons):
(iii) interest and dividends (include all income from assets as set
forth in item 7(b) below and include any withdrawal of cash or assets from
an investment, except to the extent the withdrawal is reimbursement of
cash or assets invested by the above persons);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions, disability
or death benefits and other similar types of periodic receipts including a
lump-sum payment for the delayed start of a periodic payment;
(v) payments in lieu of earnings, such as unemployment and
disability compensation, workers' compensation and severance pay;
(vi) any welfare assistance: if the welfare assistance payment
includes an amount specifically designated for shelter and utilities that is
subject to adjustment by the welfare assistance agency in accordance with
the actual cost of shelter and utilities, include as income (a) the amount of
the allowance or grant exclusive of the amount specifically designated for
shelter or utilities, plus (b) the maximum amount that the welfare assistance
agency could in fact allow the above persons for shelter and utilities. (If the
welfare assistance is ratably reduced from the standard of need by applying
a percentage, the amount calculated under clause (b) shall be the amount
resulting from one application of the percentage);
(vii) periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons
not residing in the dwelling;
W:Personal\DoughertyVaIley\ExhibitC.DoughertyVaIley.9.01 2
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of the
household, spouse or other household member whose. dependents are
residing in the unit; and
(ix) any earned income tax credit to the extent it exceeds income
tax liability.
(b) The following income is excluded from the amount set forth
above:
(i) Income from employment of children (including foster
children) under the age of 18 years;
(ii) Payment received for the care of foster children;
(iii) Lump-sum additions to household assets, such as inheritances,
insurance payments (including payments under health and accident insurance
and worker's compensation), capital gains and settlement for personal or
property losses;
(iv) Amounts received by the household that are specifically for,
or in reimbursement of, the cost of medical expenses. for any household
member.
(v) Income of a live-in aide;
(vi) Amounts of education scholarships paid directly to the
student or to the education institution, and amounts paid by the Government
to a veteran, for use in meeting the costs of tuition, fees, books, equipment,
materials, supplies, transportation, and miscellaneous personal expenses of
the student. Any amount of such scholarship or payment to a veteran not
used for the above purposes that is available for subsistence is to be
included in income;
(vii) The special pay to a household member serving in the Armed
Forces who is exposed to hostile fire;
(viii) (a) Amounts received under training programs funded by HUD;
W:Persona IM)oughertyVaIley\ExhibitC.DoughertyVaIley.9.01 3
M Amounts received by a Disabled person that are
disregarded for a limited time for purposes of Supplemental Security
income eligibility and benefits because they are set aside for use
under a Plan to Attain 5elf-5ufficiency (PASS); or
(c) Amounts received by a participant in other publicly
assisted programs which are specifically for or in reimbursement of
out-of-pocket expenses incurred (special equipment, clothing,
transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
(ix) Temporary, nonrecurring or sporadic income (including gifts);
or
(x) Amounts specifically excluded by any other federal statute
from consideration as income for purposes of determining eligibility or
benefits under a category of assistance programs that includes assistance
under the United States Housing Act of 1937.
7. If any of the persons described in column 1 above(or any person whose income or
contributions were included in item 6) has any savings, stocks, bonds, equity in real property or
other form of capital investment (excluding interests in Indian trust lands, but including the value
of any assets disposed of for less than fair market value (including a disposition in trust, but not in
a foreclosure or bankruptcy sale) during the previous two years in excess of the consideration
received therefore), provide:
(a) the total value of all such assets owned by all such persons: $_, and
(b) the amount of income expected to be derived from such assets in the
12-month period commencing this date: $
W:Personal\DoughertyVal ley\ExhibitC.DoughertyVaIley.9.01 4
We acknowledge that all of the above information is relevant to the status of the subject project
and comply with affordable housing requirements of Contra Costa County. I/we certify that a) our
current gross annual household income is as set forth above; b) that the number of persons residing
in our house is ; c) that we intend to occupy the house as our principal place of residence; and
d)we hereby grant permission to (lender)to disclose information in our application files to
Contra Costa County representatives in order to verify our income. I (we) declare under penalty of.
perjury that the foregoing is true and correct.
Date:
Purchaser
Purchaser
SUBSCRIBED AND SWORN to before me this day of
(NOTARY SEAL)
Notary Public in and for the State of
My Commission Expires:
W:Personal\DoughertyValley\ExhibitC.bough ertyVaIIey.9.01 5
FOR COMPLETION BY SELLER/LENDER ONLY:
I. Calculation of eligible income:
(A) Enter amount entered for entire household in 6 above: $
(B) If the amount entered in 7(a)above is greater than $5,000, enter:
(i) the product of the amount entered in 7(a)
above multiplied by the current passbook
savings rate as determined by HUD: $
(ii) the amount entered in 7(b) above: $
(iii) line (i) minus line (ii) is less than $0, enter
$0): $
(C) TOTAL ELIGIBLE INCOME
(Line I(A) plus line I(B)(iii)): $
II. Qualification as individuals or a family of lower income:
(A) Is the amount entered in line I(c) less than (50%, 80%, 120%] of Median Income for
the Area with adjustments for smaller and larger families.*
Yes No
(B) If line II(A) is "No", then the household does not.qualify as individuals or a
family of very low income.
III. (Check one)
The household does not qualify as individuals or a family of (Very Low, Low, Moderate] income.
The household qualifies as individuals or a family of [Very Low, Low, Moderate]
income.
* "Median Income for the Area" means median income for the Contra Costa County,adjusted for
family size as published by the California Department of Housing and Community Development
pursuant to Health & Safety Code Sections 50079.5 and 50105.
W:Personal\DoughertyValley\ExhibitC.DoughertyVaIley.9.01 6
ATTACHMENT C
Form of Disclosure Statement
WMersonah BOAR DORDFRS\10.2.01.doughcrtyvalley 7
CONTRA COSTA COUNTY
DOUGHERTY VALLEY AFFORDABLE HOUSING PROGRAM
DISCLOSURE STATEMENT
This statement applies to the following area:
[Include map of project area or site description.]
State Housing Element law requires California jurisdictions to analyze existing and future
housing needs for all economic segments of the population and develop specific policies
and programs to meet the identified needs. In order to assist the County in meeting the
requirements of State Housing Element law, the Contra Costa County Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program (DVAHP) in
March of 1994. The DVAHP was incorporated by reference into agreements between the
County, Shapell Industries of Northern California, and Windemere Ranch Partners-BLC
governing the future development of 11,000 housing units in the Dougherty Valley.
According to the requirements of the DVAHP, a minimum of 25 percent of all housing
units developed within Dougherty Valley must be affordable to very-low, low and
moderate-income households. In addition, at least 10 percent of the affordable units
must be affordable to very-low income households and 25 percent must be affordable to
low-income households.
Assuming all 11,000 housing units are developed, the DVAHP will result in the provision
of 2,750 affordable housing units in the Dougherty Valley, including 275 affordable to
very-low income households, 688 for low-income households, and 1,788 for moderate-
income households. While the affordable housing obligation may be met through the
development of either rental or ownership housing, current plans indicate that the
majority of the affordable units will be apartments.
Information concerning the status of the DVAHP including the location of proposed sites
for the affordable units may be obtained from Shapell Industries (408/946-1550) and
Windemere Ranch Partners (Lennar Communities 925/416-4949).
Very-low income households are defined as households with incomes at or below 50 percent of the area
median income for Contra Costa County(AMI)as adjusted for household size and defined by the State
Department of Housing and.Community Development. Low-income households are defined as households
with incomes at/below 80 percent AMI, while moderate income households have incomes atibelow 120
percent AMI.For example, in December of 2000,the maximum allowable income for a four person very-
low income household was$33,800, the maximum income for a low-income household was$67,600 and
$81,100 for a moderate income household.
Please sign this Disclosure Statement in the space provided below and return it to:
Shapell Industries Lennar Communities
100 North Milpitas Blvd. 5960 Inglewood Drive, # 220
Milpitas, CA 95035 Pleasanton, CA 94588
I have read and understand the above Dougherty Valley Affordable Housing Disclosure
Statement including provisions that require the provision of housing affordable to very-low,
low and moderate-income households in the Dougherty Valley.
By: Dated:
Signature of Buyer/Renter
Print name of Buyer/Renter
kkh/w/word/dvahp7
ATTACHMENT D-1
Form of Condition of Approval for Final Map Approval
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
W:\Persona1\BOARDORDERS\10.2.0l.doughertyvalley 8
GALL RANCH PHASE II
NEIGHBORHOOD 11
I+INAL MAP
AFFORDABLE HOUSING RESERVATION
Parcel (the "Parcel") is designated as a site for housing affordable to .
Very Low Income and Low Income Households (as these terms are defined in
the Dougherty Valley Affordable Housing Program). This Parcel with the
recording of this Final Map is reserved for housing for Very Low Income and
Low Income Households. As a result of this reservation, no initial application
for the development of this parcel shall be made that does not contain a
minimum of 160 units of housing for Very Low Income and Low Income
Households. Should the housing for Very Low Income and Low Income
Households not be funded with the initial application for financing the Parcel or
that portion of the Parcel designated for Very Low Income and Low Income
Households shall remain available, consistent with items V.13.2. and 3. of the
Dougherty Valley Affordable Housing Program.
ATTACHMENT D-2
Form of Condition of Approval for Final Development Plans
(To provide certainty in achievement of Very Low Income/
Low Income projects/sites)
W VersonaRBOAItDOR DERS\10.2.0I.doughertyvalley 9
GALL RANCH PHASE II
FINAL DEVELOPMENT PLAN
AFFORDABLE HOUSING
CONDITION OF APPROVAL
Neighborhood .11 in Gale Ranch Phase II has been designated by Shapell as a
site for housing affordable to Very Low Income and Low Income Households
(as these terms are defined in the Dougherty Valley Affordable Housing
Program). This neighborhood,with the recording of the first Final Map for Gale
Ranch Phase II shall contain it reservation such that no development application
for Neighborhood 11 shall be approved by the County that does not contain a
minimum of 160 units of housing affordable to Very Low Income and Low
Income Households. Any such application for housing affordable to Very Low
Income and Low Income Households shall be accompanied by an executed
regulatory agreement.
Should the housing affordable to Very Low Income and Low Income
Households not be funded with the initial application for financing, that portion
of the Neighborhood 11 parcel designated for Very Low Income and Low
Income Households shall remain available consistent with items E.E.2. and 3. of
the Dougherty Valley Housing Program.
EXHIBIT E-1
Agreement to Amend Affordable Housing Program (Shopell Industries)
W:\PersonalBOARDORDGRS\10.2.01.doughertyvallcy 10
AGREEMENT TO AMEND
AFFORDABLE HOUSING
.PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
SHAPELL INDUSTRIES,INC.
OWNER
Dated as of
October_, 2001
AGREEMENT TO AMEND
AFFORDABLE HOUSING
PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM(the
"Agreement") is dated as of October_, 2001, by and between COUNTY OF CONTRA
COSTA, a political subdivision of the State of California("County"), and Shapell Industries,
Inc., a Delaware corporation("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the
Dougherty Valley Specific Plan on December 2, 1992, and amended the Dougherty Valley
Specific Plan in December 1996 (as so amended, the"Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income
community in the Dougherty Valley in order to promote a jobs-housing balance and address
affordable housing needs set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals, the
Board of Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24,
1994 (the "DVAHP"); and
WHEREAS, Owner is the owner of approximately 2,708 acres of land within the
Dougherty Valley (the"Shapell Property") which, under the teens of the Specific Plan, is
designated for the development of, among other things, up to 5,830 residential dwelling units
(the"Shapell Project");
WHEREAS, Owner and County are parties to those certain Development
Agreements, dated January 11, 1995 and April 8, 1996 (the "Development Agreements"), which
Development Agreements were entered into pursuant to Section 65864 et seq. of the California
Government Code, and Section 3.05 of which Development Agreements requires compliance
with the DVAHP;
WHEREAS, the Development Agreements require the development of the Shapell
Project to be undertaken in a manner consistent with the terms and provisions of, among other
things, that certain Agreement to Settlement Litigation, dated May 11, 1994, by and between
County, the City of San Ramon, the Town of Danville, Owner and the predecessor-in-interest to
Windemere BLC Land Company, LLC (the "Settlement Agreement"), which Settlement
Agreement provides (in Recital M) that the DVAHP may be amended upon the written
agreement of the County, Owner and Windemere.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend
the DVAHP as anticipated by the Settlement Agreement, and to enter into this Agreement
concurrently with County and Windemere BLC Land Company, LLC entering into a similar
agreement, in the form attached hereto as Exhibit (the"Windemere Agreement"), to so amend
the DVAHP.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the County and the Owner hereby agree as follows:
affd housing umbrella agmt(Vcr. 3)i72272i053
Section 1. Amendments of DVAHP. County may amend the
DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
`Moderate Income Rent'shall mean the lesser of(1) the monthly
market rate rent; or(2) a monthly rent which is no greater than
30% of 100% of the Median Monthly Income for a one person
household, including a Utility Allowance,for studio units; a
monthly rent which is no greater than 30% of 110% of the Median
Monthly Income for atwo-person household, including a Utility.
Allowance,for one-bedroom units; a monthly rent which is no
greater than 30%of 120% of the Median Monthly Income for a
three person household, including a Utility Allowance,for two-
bedroom units; and a monthly rent which is no greater than 30%
of 120% of the Median Monthly Income for a four person
household, including a Utility Allowance,for three-bedroom units.
(b) Section V(B)(2) of the DVAHP may be amended to read:
Moderate Income Units shall be maintained as such for the following
minimum terms:
(i) For-sale Moderate Income Units shall be maintained as affordable
for the term governed by its subsidy source. Since the Dougherty
Valley Affordable Housing Program has been developed such that
there is no expectation ofpublic participation (as defined below),
the!Moderate Income for-sale units are not generally expected to
have an affordability term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of
thirty (30)years if the project is subject to public participation
(which term means the provision of financial assistance in the form
Of, among other things, a loan, grant, loan guarantee, or waiver of
rents/modification of development standards granted solely to
enhance the affordability of the units, etc.), and twenty (20)years
if no public participation is provided. Developers/Owners of for-
rent Moderate Income Units and specialized facilities shall enter
into a Regulatory Agreement (form to be provided by the County),
prior to the issuance of any building permit required for the
development.
Nothing in the foregoing shall preclude a longer term of affordability as
may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP
is hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income) and Exhibit C (LowNery Low Income), respectively.
The "Certification of Homebuyer Eligibility" form and "Disclosure Form" attached hereto as
Exhibit D and Exhibit E,respectively, are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B, Exhibit C, Exhibit D, and
affd housing umbrella agmt(Ver. 3)n2272i053
Exhibit E are intended to be standard forms to be used by County and Owner in connection with
affordable housing projects that may be proposed within the Shapell Project. Any regulatory
agreements so entered into between County and Shapell shall be in substantially the form of one
of Exhibit B or Exhibit C (or, in the case of a combined moderate/low/very low income project, a
combination of these forms) subject only to those modifications that may be necessary or
appropriate to reflect the circumstances or terms of any particular affordable housing transaction.
The forms attached hereto as Exhibit D and Exhibit E may be used subject only to those
modifications that may be necessary or appropriate to reflect the circumstances or terms of any
particular affordable housing transaction.
Section 2. No Other Amendments. Except as otherwise specified herein, the
DVAHP shall remain unchanged and a binding obligation of the parties as specified in
Section 3.05 of the Development Agreements.
Section 3. Effective Date of Agreement. This Agreement shall become effective
immediately upon the execution and delivery hereof and of the Windemere Agreement by all
parties to such agreements. This Agreement shall authorize only the amendments specified in
Section l above, all of which shall be adopted by the County Board of Supervisors, if at all,
concurrently with its approval of this Agreement.
Section 4. Governing Law. This Agreement shall be governed by
the laws of the State of California.
Section 5. Notices. Any notice required to be given hereunder shall be made in
writing and shall be given by personal delivery, certified or registered mail, postage prepaid,
return receipt requested,at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4`h Floor, North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Mr. Chris Truebridge, Division Manager
Shapell Industries of Northern California
P.O. Box 361169
100 North Milpitas Blvd.
Milpitas, CA 95035
Attention: Chris Truebridge
With a copy'to: McCutchen, Doyle, Brown & Enersen, LLP
P.O. Box V
1333 N. California Boulevard, Suite 210
Walnut Creek, CA 94596
Attention: Cecily T. Talbert
Notice shall be deemed given three business days after the date of mailing.
affd housing umbrella agmt(Ver. 3)n2272i053
Section 6. Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof
shall not in any way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of County and Owner and their respective successors and assigns.
Section 8. Multiple Counterparts. This Agreement may be simultaneously
executed in multiple counterparts, all of which shall constitute one and the same instrument, and
each of which shall be deemed to be an original..
IN WITNESS WHEREOF, County and Owner have executed this Agreement by
duly authorized representatives, all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL
By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
SHAPELL INDUSTRIES, INC., a Delaware
corporation
By: T
Its:
By:
Its:
affd housing umbrella agmt (Ver. 3)i72272i053
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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and could prevent fraudulent removal and reattachment of this form to another document.
Description of
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V 1999 National Notary Associalion•9350 09 Solo Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.nationalnotary.org Prod.No.5907 Floorder:Call Toll-Free 1-800-876-6827
EXHIBIT A
WINDEMERE AGREEMENT
See Attachment E-2 for this Agreement.
A-1
we-60261
EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOW/VERY LOW)
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORM
For reproduction purposes the above exhibits have not been reproduced.
They are attached to this October 16 Board Order as (Attachment A-2,
A-11 B, and C respectively)
EXHIBIT E-2
Agreement to Amend Affordable Housing Program (Windemere BLC)
WAPersonaRBOARDORDERS\10.2,0 Ldoughertyvalley
AGREEMENT TO AMEND
AFFORDABLE HOUSING PROGRAM
By and Between
COUNTY OF CONTRA COSTA
and
WINDEMERE BLC LAND COMPANY,LLC
OWNER
Dated as of
October,,2001
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AGREEMENT TO AMEND
ATFORDABLE HOUSING PROGRAM
THIS AGREEMENT TO AMEND AFFORDABLE HOUSING PROGRAM(the "Agreement")
is dated as of October , 2001,by and between COUNTY OF CONTRA COSTA,a political
subdivision of the State of California("County"), and Windemere BLC Land Company,LLC,a
California limited liability company("Owner").
WITNESSETH:
WHEREAS, the Board of Supervisors of Contra Costa County adopted the Dougherty Valley
Specific Plan on December 2, 1992, and amended the Dougherty Valley Specific Plan in December 1996
(as so amended,the"Specific Plan");
WHEREAS, the Specific Plan provides for the development of a mixed income community in
the Dougherty Valley in order to promote a jobs-housing balance and address affordable housing needs
set forth in the County General Plan-Housing Element;
WHEREAS, in furtherance of the Specific Plan's affordable housing goals,the Board of
Supervisors adopted the Dougherty Valley Affordable Housing Program on March 24, 1994(the
"DVAHP"); and
WHEREAS, Owner is the owner of approximately 2379 acres of land within the Dougherty
Valley(the"Windemere Property")which,under the terms of the Specific Plan,is designated for the
development of, among other things,up to 5,170 residential dwelling units (the Windemere Project");
WHEREAS, Owner and County are parties to that certain Development Agreement, dated
January 18, 1996(the "Development Agreement"),which Development Agreement was entered into
pursuant to Section 65864 et seq. of the California Government Code,and Section 3.05 of which
Development Agreement requires compliance with the DVAHP;
WHEREAS, the Development Agreement requires the development of the Windemere Project to
be undertaken in a manner consistent with the terms and provisions of,among other things,that certain
Agreement to Settlement Litigation, dated May 11, 1994,by and between County,the City of San
Ramon,the Town of Danville,Owner's predecessor-in-interest and Shapell Industries,Inc. (the
"Settlement Agreement"), which Settlement Agreement provides (in Recital M)that the DVAHP may be
amended upon the written agreement of the County,Owner and Shapell.
WHEREAS, County and Owner desire pursuant to this Agreement to so amend the DVAHP as
anticipated by the Settlement Agreement, and to enter into this Agreement concurrently with County and
Shapell entering into a similar agreement,in the form attached hereto as Exhibit A(the "Shapell
Agreement"),to so amend the DVAHP.
NOW,THEREFORE,in consideration of the mutual covenants and undertakings set forth
herein, and other good and valuable consideration,the receipt and sufficiency of which hereby are
acknowledged,the County and the Owner hereby agree as follows:
Section 1. Amendments of DVAHP. County may amend the DVAHP as follows:
(a) The definition of"Moderate Income Rent" contained in Section III of the
DVAHP may be amended to read:
'Moderate Income Rent'shall mean the lesser of(1) the monthly market rate rent; or
(2)a monthly rent which is no greater than 30%of 100%of the Median Monthly Income for a
one person household, including a Utility Allowance,for studio units; a monthly rent which is no
greater than 30%of 110%of the Median Monthly Income for a two person household, including
a Utility Allowance,for one-bedroom units; a monthly rent which is no greater than 30%of
we-60261
120%of the Median Monthly Income for a three person household, including a Utility
Allowance,for two-bedroom units; and a monthly rent which is no greater than 30%of 120%of
the Median Monthly Income for a four person household, including a Utility Allowance,for
three-bedroom units.
(b) Section V(B)(2)of the DVAHP may be amended to read:
Moderate IncQme Units shall be maintained as such for the following minimum
terms:
(i) For-sale Moderate Income Units shall be maintained as affordable for
the term governed by its subsidy source. Since the Dougherty Valley
Affordable Housing Program has been developed such that there is no
expectation ofpublic participation (as defined below), the Moderate
Income for-sale units are not generally expected to have an affordability
term.
(ii) For-rent Moderate Income Units and specialized facilities with
Affordable Units shall be maintained as such for a minimum of thirty
(30)years if the project is subject to public participation (which term
means the provision of financial assistance in the form of, among other
things, a loan, grant, loan guarantee, or waiver of rents/modification of
development standards granted solely to enhance the affordability of the
units, etc.), and twenty(20)years if no public participation is provided.
Developers/Owners of for-rent Moderate Income Units and specialized
facilities shall enter into a Regulatory Agreement(form to be provided
by the County)prior to the issuance of any building permit required for
the development.
Nothing in the foregoing shall prelude a longer term of
affordability as may be negotiated or required by financing sources.
(c) The form of Regulatory Agreement included in Appendix I to the DVAHP is
hereby deleted and replaced in its entirety with the forms of regulatory agreements attached
hereto as Exhibit B (Moderate Income)and Exhibit C(Low/Very Low Income),respectively.
The "Certi kation of Homebuyer Eligibility form and 'Disclosure Form" attached hereto as
Exhibit D and Exhibit E,respectively, are hereby added as exhibits to the DVAHP and shall be
used where required thereby. The forms attached hereto as Exhibit B,Exhibit C,Exhibit D and
Exhibit E are intended to be standard forms to be used by Coun— ty an3 wn�conneetion with
a ordabTe housing projects that may be proposed within the Windemere Project. Any regulatory
agreements entered into between County and Windemere shall be in substantially the form of
one of Exhibit B or Exhibit C(or, in the case of a combined moderate/low/very low income
project, a com mation otTese forms), subject only to those modifications that may be necessary
or appropriate to reflect the circumstances or terms of any particular affordable housing
transaction. The forms attached hereto as Exhibit D and Exhibit E may be used subject only to
those modifications that may be necessaryor appropriate to react the circumstances or terms of
any particular affordable housing transaction
Section 2. No Other Amendments. Except as otherwise specified herein,the DVAI-IP shall
remain unchanged and a binding obligation of the parties as specified in Section 3.05 of the Development
Agreement.
Section 3. Effective Date of Agreement. This Agreement shall become effective immediately
upon the execution and delivery of this went and of the Shapell Agreement by all parties to such
agreements. This Agreement shall authorize only the amendments specified in Section 1 above, all of
which shall be adopted by the County Board of Supervisors,if at all, concurrently with its approval of
this Agreement.
2
we-60261
Section 4. Governing Law. This Agreement shall be governed by the laws of the State of
California.
Section 5. Notices. Any notice required to be given hereunder shall be made in writing and shall
be given by personaTdeTivery,certified or registered mail,postage prepaid,return receipt requested,at
the addresses specified below, or at such other addresses as may be specified in writing by the parties
hereto:
County: County of Contra Costa
County Administration Building
651 Pine Street
4"Floor,North Wing
Martinez, California 94553-0095
Attention: Deputy Director-Redevelopment
Owner: Windemere BLC Land Company,LLC
3130 Crow Canyon Place, Suite 310
San Ramon, California 94583
Attention: Pete Petersen
With a copy to: R. Clark Morrison
Morrison&Foerster LLP
101 Ygnacio Valley Road
Suite 450
Walnut Creek, CA 94596
Notice shall be deemed given three business days after the date of mailing.
Section 6. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable,the va i rty,legality and enforceability of the remaining portions hereof shall not in any
way be affected or impaired thereby.
Section 7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of County and Owner an t eir respective successors and assigns.
Section 8. Multiple Counter arts. This Agreement may be simultaneously executed in multiple
counterparts, all of w ch shall constitute one and the same instrument,and each of which shall be
deemed to be an original.
3
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IN WITNESS WHEREOF, County and Owner have executed this Agreement by duly authorized
representatives,all as of the date first above written:
APPROVED AS TO FORM COUNTY OF CONTRA COSTA
CONTRA COSTA COUNTY COUNSEL By:
Its: Deputy Director-Redevelopment
By:
Sharon Anderson
Its: Assistant County Counsel
WINDEMERE BLC LAND COMPANY LLC, a
California limited liability company
By: Brookfield Bay Area Holdings LLC,
a Delaware limited liability ompany
Member
By:
Its:
By:
Its: Vt'%cFe
By: Centex Homes,
a Nevada general partnership
Member
By: Centex Real Estate Corporation,
a Nevada general partnership
Managing General Partner
By
Davi Barclay
Division President
By: LEN-OBS Windemere,LLC,
a Delaware limited liability company
Member
By: Lennar Homes of California, Inc.,
a California corporation
Managing Member
By:
Greg McWilliams
Vice President
4
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1
EXHIBIT B
REGULATORY AGREEMENT (MODERATE RATE)
EXHIBIT C
REGULATORY AGREEMENT(LOW/VERY LOW)
I
EXHIBIT D
CERTIFICATION OF HOMEBUYER ELIGIBILITY
EXHIBIT E
DISCLOSURE FORM
Fi
EXHIBIT A
SHAPELL AGREEMENT
See Attachment E--1 for this Agreement
A-1
we-64261