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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 5

Meeting Date: July 13, 2004

Subject/Title: Approve a Resolution Approving An Affordable Housing Agreement between the City of Brentwood and Amber Park LLC (Mission Peak Homes) for Subdivision 8470, hereby Accepting Real Property on behalf of the City, and Authorizing the Mayor or City Manager and City Clerk or any of their Designees to Execute the Agreement, and such other Documents as may be needed to complete the transaction including Acceptance of the Deed.

Prepared by: Ellen Bonneville, Housing Manager

Submitted by: Howard Sword, Director of Economic Development

RECOMMENDATION
Approve a Resolution Approving An Affordable Housing Agreement between the City of Brentwood and Amber Park LLC (Mission Peak Homes) for Subdivision 8470, hereby Accepting Real Property on behalf of the City, and Authorizing the Mayor or City Manager and City Clerk or any of their Designees to Execute the Agreement, and such other Documents as may be needed to complete the transaction including Acceptance of the Deed.

PREVIOUS ACTION
Ordinance 756 was adopted by the City Council on September 9, 2003 creating the City of Brentwood Affordable Housing Program. At its meeting of May 6, 2004 the Housing Subcommittee recommended approval of the Affordable Housing Agreement with Mission Peak Homes for Subdivision 8470.

BACKGROUND
Mission Peak Homes Subdivision 8470 was approved and a final map was recorded prior to the establishment of the affordable housing program by the City—thus, making this a “transitional” project since the final recorded map did not reflect smaller lots for affordable housing purposes. However, the project was approved with a condition of approval to comply with any affordable housing program adopted by the City. The subdivision has 162 planned units so their affordable housing obligation under the phase-in exemption of the Ordinance is 8 units—2 very-low and 6 low income units. As such the following was negotiated with Mission Peak Homes to provide affordable housing for Subdivision 8470:

• Mission Peak shall pay the $101,575 in-lieu fee for 2 very-low income units;
• In lieu of building 6 low income units for sale, Mission Peak shall build a four-plex on a 20,000 square foot corner lot for dedication to the City’s rental program. This four-plex shall count as 8 units based upon the 2-for-1 formula stated in the Ordinance for units dedicated to the City as City rentals. Therefore, Mission Peaks is dedicating one additional unit to the City Rental Program.

Staff recommends the following credits be afforded to the developer upon approval of the design of the four-plex unit:

• $10,000 credit for the installation of rear and side-yard landscaping for the four-plex unit;
• $10,000 for installing washer/dryers, refrigerators, dishwashers and window blinds in each of the four units;
• $144,000 for the dedication of an additional unit to the City’s Rental program ($72,000 in-lieu fee for low income unit x 2)
• Total in-lieu fee payment - $203,150 - $164,000 credit = $39,150.

FISCAL IMPACT
None at this time.

Attachments
Resolution
Affordable Housing Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AN AFFORDABLE HOUSING AGREEMENT WITH AMBER PARK LLC (MISSION PEAK HOMES) FOR SUBDIVISION 8470, HEREBY ACCEPTING REAL PROPERTY ON BEHALF OF THE CITY, AND AUTHORIZING THE MAYOR OR CITY MANAGER AND CITY CLERK OR ANY OF THEIR DESIGNEES TO EXECUTE THE AGREEMENT, AND SUCH OTHER DOCUMENTS AS MAY BE NEEDED TO COMPLETE THE TRANSACTION INCLUDING ACCEPTANCE OF THE DEED

WHEREAS, on September 9, 2003, the City Council adopted Ordinance 756, an Ordinance of the City Council of the City of Brentwood approving an amendment to the Municipal Code adding Chapter 17.725 that establishes an Affordable Housing Program; and

WHEREAS, Amber Park LLC recorded final maps for Subdivision 8470, and

WHEREAS, Amber Park, LLC had a Condition of Approval to their project to comply with the City of Brentwood Affordable Housing Program; and

WHEREAS, the Developer has agreed to pay in lieu fees in the amount of $39,150 upon execution of this Agreement; and

WHEREAS, the Developer has agreed to construct a four-plex on the project site and dedicate those units to the City for its rental housing program; and

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve an Affordable Housing Agreement with Amber Park, LLC for Subdivision 8470 and the Mayor or the City Manager and City clerk or any of their designees are authorized to execute the agreement and such other documents as may be needed to complete the transaction including acceptance of the Deed.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 13 day of July, 2004 by the following vote:

AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Brian Swisher
Mayor

ATTEST:
___________________________________
Karen Diaz, CMC
City Clerk/Director of Administrative Services

RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:

City of Brentwood
150 City Park Way
Brentwood, California 94513
Attn: Housing Manager


Free Recording Requested Per Government Code Section 27383

AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (“Agreement”) is entered into as of the ____________day of_______________, 200__, by and between AMBER PARK LLC (“Developer”), and the CITY OF BRENTWOOD and the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD (collectively defined herein as “City”). The Developer and City agree as follows, with reference to the following facts:

RECITALS

A. Developer owns that certain real property identified as Subdivision 8470 (APNs 019-050-30, 31, 32, 33, 36, and 37 and 019-050-14 (the “Site”). Developer proposed to construct on the Site a single-family residential development consisting of approximately 162 detached residential units (the “Project”) (each lot, together with all improvements thereon and other rights appurtenant thereto, being referred to individually as a “Unit” and collectively as the “Units”) which Units shall be offered for sale.
B. City is acting to carry out its obligations under its Ordinance No. 756 (Brentwood Municipal Code Chapter 17.725) (the “Ordinance”), Section 65915 of the California Government Code, and the City’s General Plan (collectively, the “City Inclusionary Housing Requirements” or the “Affordable Housing Program”).
C. The Project has been approved by the City and has recorded one final subdivision, map, Subdivision 8470, prior to the establishment of the Ordinance by the City. Therefore, the parties acknowledge that the162 units will be subject to the Ordinance provided herein.
D. The Developer has elected to meet the requirements of Brentwood Municipal Code Section 17.725.003 through an alternate equivalent proposal as provided in Brentwood Municipal Code Section 17.725.006, by paying an in-lieu fee for its very-low obligation in the amount of $39,150.00 ($203,150 - $164,000 credit for a total payment of $39,510) as described in Exhibit “B” to this Agreement and by constructing and conveying to the City one four-plex consisting of four dwelling units.
E. Developer desires to convey one four-plex consisting of four dwelling units (“Restricted Units”), which shall be constructed by Developer on the Site, as more particularly described in the legal description of the property, attached as Exhibit A hereto and incorporated herein by reference. Developer desires to convey the Restricted Units to the City for the purpose of satisfying the City Inclusionary Housing Requirements for the Project. City desires to accept from Developer the Restricted Units for the purpose of providing affordable housing units in the City in full and final satisfaction of the City Inclusionary Housing Requirements for the Project. The Restricted Units shall be conveyed to the City in turn-key condition.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Developer and City agree as follows:

ARTICLE 1
ALTERNATE EQUIVALENT PROPOSAL
1.1 Developer shall dedicate to the City four Restricted Units in turn-key condition within 30 days following issuance of the Certificate of Occupancy for the Restricted Units. As used herein, the term “Restricted Units” shall include the property as depicted on Exhibit A attached hereto and incorporated herein, and all of Developer’s right, title and interest in and to all entitlements, easements, water rights, air rights, development rights and privileges appurtenant thereto and all improvements located thereon.
1.2 The Restricted Units shall consist of one four-plex consisting of four dwelling units, with each unit to be comprised of the following:

Square footage Bedrooms Bathrooms Garage
1161 sq. ft 1 1-1/2 1-car garage
1269 sq. ft 2 1-1/2 1-car garage
1391 sq. ft 2 1-1/2 1-car garage
1525 sq. ft 3 1-1/2 2-car garage
Any issue concerning standard of interior finish, condition, fixtures, appliances or material ( the “Interior Improvements”) shall be decided solely by the City Manager, provided however that all Interior Improvements shall be of a quality and type consistent with, and costing no more than, the standard Interior Improvements of other Units of the same type and size in the City of Brentwood. All units shall be furnished with dishwashers, ovens, stove, refrigerators, washer/dryer units, carpeting and window coverings. The Units shall be in turn-key condition upon dedication to the City.
1.3 Developer shall construct and convey the Restricted Units to the City (with certificates of occupancy) prior to the 109th occupancy in Subdivision 8470.
1.4 Developer shall pay to the City an in-lieu affordable housing fee to comply with the requirements of the Ordinance for two Restricted Units set aside for Very Low Income Households, in the amount as set forth in Exhibit C, In Lieu of Constructing Affordable Housing Fee, attached hereto and incorporated herein by this reference. Such fee shall be due and payable to the City upon execution of this Agreement. Any refund of the in-lieu affordable housing fee shall be paid upon conveyance of the property(s) to the City in acceptable condition in accordance with Article II of this Agreement.
1.5 Developer’s execution of this Agreement and compliance with the terms and conditions herein, shall be deemed full and final satisfaction of all City Inclusionary Housing Requirements that may now exist, or that may hereafter be adopted by City, applicable to the Project.
1.6 All infrastructure development fees and Agricultural Mitigation Fees not previously paid, applicable to the Restricted Units shall be paid from the rent stream generated by the Restricted Units and shall not be required to be paid by Developer, pursuant to Brentwood Municipal Code section 17.725.004D.

ARTICLE 2
ESCROW AND CLOSING

2.1 Opening of Escrow. Within three (3) business days after the Effective Date or upon recordation of a final subdivision map for Subdivision 8470 Parcel “C”, whichever occurs later, Developer shall open an escrow (the “Escrow”) with North American Title Company (the “Escrow Holder”) by depositing with Escrow Holder a copy of this fully executed Agreement, or executed counterparts hereof. At least five days prior to the close of Escrow, Escrow Holder shall prepare and submit to Developer, as Seller, and City, as Buyer, for approval escrow instructions incorporating this Agreement as part thereof, and containing such other standard and usual provisions as may be requested by Escrow Holder and approved by City and Developer in writing; provided however that no escrow instructions shall modify or amend any provision of the Agreement. In the event there is a conflict between any such standard or usual provisions and the provision of this Agreement, the provision of the Agreement shall control. As used in this Agreement , “Close of Escrow” shall mean the date a Grant Deed in the form of Exhibit B attached hereto (“Grant Deed”) is recorded in the Office of the Recorder of the County (the “Official Records”).
2.2 Escrow Fees and Other Charges. In connection with the close of Escrow, Developer shall pay all closing costs and charges, including but not limited to (a) the premium cost attributed to the “Title Policy” (as defined and subject to in Section 3.3 below), and (b) the Escrow Holder’s fees. In connection with the Close of Escrow, it is anticipated by the parties the (a) the recording charges shall not be required by the County pursuant to Government Code section 27383 and (b) documentary transfer taxes will not be required by the County because the City, as the transferee, is exempt from such fees and charges pursuant to Revenue and Taxation Code section 11922. Supplemental taxes accrued prior to Close of Escrow shall be paid by the Developer.
2.3 Closing Documents. The parties shall deposit the following with Escrow Holder prior to the Close of Escrow:
2.3.1 City Deliveries. City shall deposit a Resolution or Certificate of Acceptance as required by Government Code Section 2728.1 to be recorded with the Grant Deed.
2.3.2 Developer’s Deliveries. Developer shall deposit: (a) the Grant Deed conveying fee title to the Restricted Units, subject only to the “Permitted Exceptions” (as defined in Section 3.2 below) applicable thereto;
2.3.3 Additional Instruments. Developer and City shall each deposit such other instruments as are reasonably required by Escrow Holder or otherwise required to proceed to the Close of Escrow and consummate the conveyance of the Restricted Units in accordance with the terms of the Agreement.

2.4 Actions by Escrow Holder. On the Close of Escrow, Escrow Holder shall undertake and perform the following acts in the following order:
(a) record the Grant Deed and the Certificate or Resolution of Acceptance for the Restricted Units in the Official Records;
(b) instruct the County Recorder to return the Grant Deed for the Restricted Units to City; and
(c) deliver to City (i) the conformed copies of the recorded Grant Deed for the Property, and (ii) the Title Policy covering the Property subject only to the Permitted Exceptions.

2.5 Prorations. Real property taxes and assessments for the Restricted Units shall be prorated as of the Close of Escrow on the basis of the most recent tax information. Said prorations shall be based on a thirty (30) day month.
2.6 Possession. Upon the Close of Escrow, exclusive possession of and title to the Restricted Units shall be conveyed to City, subject only to the Permitted Exceptions, and subject to any other lien, easement, encumbrance, covenants, conditions and restriction of record as agreed by City.
ARTICLE 3
ACTIONS PENDING CLOSING
3.1 Title Report. On or before the Effective Date, Buyer shall order from North American Title Company (the “Title Company”) and provide to City a current Preliminary Title Report on the property for the Restricted Units, together with legible copies of all documents referenced therein as exceptions to title and a plot plan for the property for the Restricted Units showing all the locations of all recorded easements (collectively, the “PTR”).
3.2 Title to Restricted Units. City shall take title to the Restricted Units, subject only to the following permitted exceptions appearing on the PTR (the “Permitted Exceptions”); (i) standards printed exceptions in the PTR issued by the Title Company (ii) general and special real property taxes, bonds and assessments, a lien not yet due and payable; (iii) the covenants, conditions and restrictions recorded by Developer that are applicable to the Project; (iv) this Agreement; (v) any fees, assessments or other charges resulting from the inclusion of the Restricted Units in a Landscaping and Lighting District; and (vi) any other easements, covenants, conditions and restrictions of record and other matters of record as of the date of the PTR was issued; and (vi) any other liens or encumbrances which do not affect the marketability of title to the Restricted Units or their value as reasonably approved by the City in writing prior to the close of Escrow. Notwithstanding the foregoing, Developer shall be obligated to remove or eliminate as exceptions to title to the Restricted Units as of the Close of Escrow any (a) monetary liens, including all deeds of trust or mechanics liens, but excluding the Permitted Exceptions and (b) all claims to fee title or leasehold interest in the Restricted Units (c) all supplemental tax bills accrued prior to Close of Escrow.
3.3 Title Policy. City’s obligation to proceed to the Close of Escrow shall be conditioned upon the commitment by Title Company to issue a CLTA Owner’s Policy of Title Insurance (the “CLTA Policy”) showing title to the Restricted Units vested in the City, subject only to the Permitted Exceptions. City may choose to obtain an ALTA Owner’s Policy of the Title Insurance (the “ALTA Policy”) instead of the CLTA Policy (the policy selected, whether CLTA or ALTA, is referred to herein as the “Title Policy”, provided City shall pay the additional cost of obtaining such ALTA policy.
3.4 City Acceptance of Restricted Units. City shall not be obligated to accept the conveyance of the Restricted Units until such times as (a) City’s building department has inspected the Restricted Units, (b) there has been a successful final inspection of the Restricted Units, and (c) the City has issued a Certificate of Occupancy for the Restricted Units. The City’s inspections and issuance of certificate of occupancy shall not be unreasonably delayed.

“As Is” Purchase.

DEVELOPER WILL BE CONVEYING THE RESTRICTED UNITS TO CITY AT NO COST TO CITY, WITHOUT PROFIT TO DEVELOPER, AND AT DEVELOPER’S SOLE COST AND EXPENSE AND THEREFORE WITHOUT WARRANTY OF ANY KIND. CITY WILL NOT BE OBLIGATED TO ACCEPT THE CONVEYANCE OF THE RESTRICTED UNITS UNTIL CITY’S BUILDING DEPARTMENT HAS INSPECTED THE RESTRICTED UNITS, THERE HAS BEEN A SUCCESSFUL FINAL INSPECTION OF THE RESTRICTED UNITS, AND THE CITY HAS ISSUED A CERTIFICATE OF OCCUPANCY. ACCORDINGLY, UPON ACCEPTANCE BY THE CITY OF THE CONVEYANCE OF THE RESTRICTED UNITS, CITY ACKNOWLEDGES AND AGREES THAT CITY IS ACCEPTING THE UNITS AS FINISHED UNITS ON AN “AS IS WITH ALL FAULTS” BASIS AND THAT CITY IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM DEVELOPER OR ITS AGENTS AS TO ANY MATTERS CONCERNING THE RESTRICTED UNITS, INCLUDING WITHOUT LIMITATION: (i) THE QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION (INCLUDING, WITHOUT NATURE, ADEQUACY AND PHYSICAL CONDITION (INCLUDING WITHOUT LIMITATION, POTOGRAPHY, SOILS, GRADING, DRAINAGE, SITE IMPROVEMENTS AND INFRASTRUCTURE IMPROVEMENTS, (ii) THE COMPLIANCE OF THE UNITS OR THEIR OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY GOVERNMENTAL OR QUASI-GOVERNMENTAL ENTITY OR OF ANY OTHER PERSON OR ENTITY, (iii) THE PRESENCE OF HAZARDOUS MATERIALS ON, UNDER OR ABOUT THE RESTRICTED UNITS, AND (iv) THE CONSTRUCTION OF IMPROVEMENTS TO THE RESTRICTED UNITS, INCLUDING WITHOUT LMITATION, THE DESIGN AND WORKMANSHIP THEREOF AND THE QUALITY OF ANY LABOR AND MATERIALS USED THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, DEVELOPER SHALL PROVIDE A ONE YEAR FIT AND FINISH WARRANTY. PARTIES AGREE TO COMPLY WITH THE PROVISIONS OF DEVELOPER'S STANDARD ONE YEAR FIT AND FINISH WARRANTY WHICH SHALL BE PROVIDED TO CITY AT NO COST TO CITY.
3.5 Release. AS OF THE CLOSE OF ESCROW, CITY WAIVES ON BEHALF OF ITSELF AND ITS AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS, ANY AND ALL RIGHT TO RECOVER FROM DEVELOPER AND ITS MEMBER, OFFICERS, AFFILIATES, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS AND AGENCY (COLLECTIVELY, THE “DEVELOPER RELATED PARTIES”), AND FOREVER RELEASES AND DISCHARGES DEVELOPER AND THE DEVELOPER RELATED PARTIES FROM ANY AND ALL DAMAGES, CLAIMS, LOSSES, LIABILITIES, PENALTIES, FINES, LIENS, JUDGMENTS, COSTS OR EXPENSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COSTS), WHETHER DIRECT OR INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THAT MAY ARISE ON ACCOUNT OF OR IN ANY WAY BE CONNECTED WITH THE RESTRICTED UNITS, THEY PHYSICAL AND ENVIRONMENTAL CONDITION THEREOF, AND THE CONSTRUCTION OF IMPROVEMENTS THERON. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING.
IN CONNECTION WITH THE ABOVE PROVISION, CITY EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

CITY’S INITIALS: ___________________

ARTICLE 4
MAINTENANCE AND MANAGEMENT
4.1 Maintenance and Management Prior to Close of Escrow. Prior to the Close of Escrow, Developer agrees to construct, install and maintain the improvements and front, side and rear landscaping on the Restricted Units in a clean and orderly condition and in good condition and repair and keep the Restricted Units free from accumulation of debris and waste materials.
4.2 Maintenance and Management following the Close of Escrow. Following the Close of Escrow, the front yards of the Restricted Units shall be maintained by the City or its’ subcontractor.
ARTICLE 5
AFFORDABLE HOUSING RESTRICTIONS
5.1 No Developer Obligation After Close. Upon Close of Escrow, Developer shall have no further obligations or liabilities with respect to the Restricted Units, including without limitation any responsibility for compliance by the buyer or its successors with the terms and conditions of the Refinance and Resale Limitation Agreement, provided that Developer has complied with the terms of this Agreement, including Paragraph 3.5 of this Agreement. Notwithstanding any term stated above, the City shall have the right to sell, lease or transfer without any deed restriction, provided an equivalent unit, fair market value, or cash is contributed to the City’s Housing Trust Fund.
5.2 No Discrimination. Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, physical or mental disability, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Restricted Units, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the Restricted Units. Notwithstanding the foregoing, Developer shall have no obligations regarding the selection, location, number, use or occupancy of the Restricted Units, it being understood that such obligations will be the responsibility of Developer’s successors in interest in ownership of the Restricted Units.
5.3 No Impairment of Lien. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor of Developer to the Restricted Units shall be bound by such covenants, conditions, restrictions, limitations and provisions, whether such successor’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise.
5.4 Transfer by Developer of Restricted Units. Developer shall not sell, transfer, convey or assign the Restricted Units or any part thereof or interest therein during the period between the date of recordation of this Agreement and the Close of Escrow without prior written consent of the City.
5.5 Post Closing Covenant to Rent Restricted Units to Eligible Households. City covenants and agrees that the Restricted Units shall only be rented or leased to Eligible Households during the one year period following the Close of Escrow. “Eligible Household” shall mean and include a person or household whose annual gross income does not exceed 80% of the Median Income (as such term is defined in the Refinance and Resale Limitation Agreement) and which percentage shall be adjusted as provided in Title 25, Section 6932 of the California Code of Regulations.
5.6 Post Closing Covenant Not to Sell Restricted Units for a Period of One Year. It is the intent of the parties that the Restricted Units shall be offered for rent or lease by the City to Eligible Households pursuant to the City’s affordable housing program for a period of at least one year following the Close of Escrow. City covenants and agrees that it shall not sell, transfer, convey or assign the Restricted Units for a period of at least one year following the Close of Escrow. Following the one year period after the Close of Escrow, City may sell, transfer, convey or assign the Restricted Units provided the price of the Restricted Unit does not exceed the Affordable Housing Cost (as such term is defined in the Refinance and Resale Limitation Agreement). Notwithstanding the foregoing, after the one year period following the Close of Escrow the City shall have the right to sell, lease or transfer for a price exceeding the Affordable Housing Cost, provided an equivalent unit, fair market value, or cash is contributed to the City’s Housing Trust Fund.
ARTICLE 6
GENERAL PROVISIONS
6.1 Condition of Approval. Upon execution of this Agreement, City agrees that Developer has satisfied all general and specific subdivision map conditions applicable to the Project to the extent that such conditions relate to or obligate Developer to participate in the City’s Affordable Housing Program.
6.2 Notices. Notices required to be given to the City or to Developer shall be given by hand delivery, recognized overnight courier (such as UPS, DHL, or Fed Ex) or certified mail, return receipt requested, to the following addresses, or to such other address(es) as a party may designate from time to time by written notice to the other. All notices so given shall be deemed received (a) on the date delivered if hand delivered by receipted hand delivery or by overnight courier and (b) one day after postmark if sent postage prepaid by certified mail, return receipt requested.
6.3
To City:

Housing Manager
The City of Brentwood
City Hall
150 City Park Way
Brentwood, CA 94513

To Developer:

Amber Park LLC
Attn: Stephen M. Allen
40480 Encyclopedia Circle
Fremont, CA 94538

6.4 Amendment. This Agreement may be amended only in writing by City and the Developer.
6.5 No Third Party Beneficiaries. Notwithstanding anything in this Agreement to the contrary, there are not third party beneficiaries of this Agreement.
6.6 Effect of Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall have ay force or effect on any buyer of a single Unit of its right, title or interest in or to such Unit, except for the Restricted Units.
6.7 Default.
6.7.1 Any failure by Developer to perform any term or provision of this Agreement shall constitute an “Event of Default” (1) if Developer does not cure such failure within thirty (30) days following written notice of default from the City, or (2) if such failure is not of a nature which cannot reasonably be cured within such thirty (30) day period, Developer does not within such thirty (30) day period commence substantial efforts to cure such failure or thereafter does not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure. The City shall not enforce any of its rights and remedies for breach by Developer except upon the occurrence of an Event of Default.
6.7.2 Any notice of default given hereunder shall specify in detail the nature of the failure in performance alleged by the City and the manner in which such failure of performance may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure to perform, the Developer shall not be considered to be in default of this Agreement for any purposes.
6.7.3 Any failure or delay by the City in asserting any of its rights or remedies as to any Event of Default shall not operate as a waiver of any Event of Default or of any such rights or remedies or deprive the City of its right to institute and maintain any actions or proceedings which it may seem necessary to protect, assert or enforce any such rights or remedies.
6.7.4 In the Event of Default under this Agreement, City shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other remedy proceedings to cure, correct or remedy such Event of Default.
6.7.5 In the Event of Default, failure by Developer to comply with the terms of this Agreement shall be grounds for the City to suspend issuance of building permits for the Project, or pursue any other remedy available to it pursuant to this Agreement or applicable law and/or demand an in lieu payment per City’s Affordable Housing Ordinance.
6.7.6 Upon any default or breach of this Agreement by City, Developer shall have the right to exercise any and all rights and remedies, and to maintain any actions at law or suits in equity or pursue any other remedy available to it pursuant to this Agreement or applicable law.
6.7.7 California Law. This Agreement shall be construed in accordance with and be government by the laws of the State of California.
6.7.8 Severability. Should any provision of this Agreement be found invalid or unenforceable by a court or other body of competent jurisdiction, said invalidity, unenforceability or ineffectiveness shall not affect the validity of the remaining provisions which shall remain in force to the maximum extent possible.
6.7.9 Entire Agreement. This Agreement contains the entire understanding between the parties relating to the transaction contemplated hereby, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. No provision of this Agreement may be amended, waived, or added except by an instrument in writing signed by the Parties hereto.
6.7.10 Incorporation of Exhibits. All exhibits referred in this Agreement are incorporated herein by reference.
6.7.11 Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all parties had executed the same page.
6.7.12 Effective Date. The Effective Date if this Agreement shall be the date this Agreement is executed by both parties.
6.7.13 Attorney’s Fees. In the event any party to this Agreement commences litigation for specific performance or damages for the breach of this Agreement, the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys’ fees and court costs incurred.

IN WITNESS WHEREOF, City and Developer have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized.

Date: THE CITY OF BRENTWOOD and THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD
By: _________
City Manager and Executive Director

ATTEST:
By: _________
City Clerk and Agency Treasurer

"CITY"
APPROVED AS TO FORM:

City Attorney
Date: AMBER PARK LLC
By:
Its:

"DEVELOPER"
SIGNATURES MUST BE NOTARIZED

STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me, the undersigned, a notary public, personally appeared ,
( ) personally known to me, or
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that executed the same in authorized capacity(ies), and that by signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.

Signature
~~~~~~
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me, the undersigned, a notary public, personally appeared ,
( ) personally known to me, or
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that executed the same in authorized capacity(ies), and that by signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.

Signature

EXHIBIT “A”

LEGAL DESCRIPTION OF RESTRICTED UNITS
Lot 157 of Subdivision 8470, recorded as Parcel “C”, in Map Book_______, at Page________.

EXHIBIT “B”

In Lieu of Constructing Affordable Housing Fee
Number of Reserved Units
Subject to Fee Fee Amount Total Fee Due City

2 $101,575 $39,150*

*Calculation of Fee due to City

2 X $101,575 = $203,150
$10,000 credit for landscaping (10,000)
$10,000 credit for turn-key units (10,000)
$144,000 credit for dedication of
additional low income unit
($72,000 x 2) (144,000)

TOTAL
$ 39,150
 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov