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CITY COUNCIL AGENDA ITEM NO. 6

Meeting Date: September 14, 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.

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.

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. The item was originally placed on the July 13, 2004 City Council agenda for approval and subsequently removed by staff because of neighbor concerns. The agreement was renegotiated and the revised Affordable Housing Agreement was reviewed and approved by the Housing Subcommittee at its meeting of August 19, 2004.

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. The original Affordable Housing Agreement included a four-plex to be developed and dedicated to the City as rental units and also the payment of the in-lieu fee for the two very-low income units.

Staff heard from neighbors about their concerns regarding the proposed four-plex and staff then requested the item be removed from the agenda in order to address those concerns. Staff subsequently met with the developer and renegotiated the Affordable Housing Agreement so that it no longer contains the development of a four-plex for this subdivision.

On May 25, 2004, the City council approved interim implementation procedures for the Affordable Housing program. One of the approved interim procedures allowed developers of subdivisions with average lot sizes of over 8500 square feet to “fee out” of both their very-low income unit obligation and their low income unit obligation. This subdivision falls into that category. The average lot size is well over 9,000 square feet. Therefore, the developer has agreed to pay the following in lieu fees upon approval of this agreement to meet their affordable housing obligation.

• In-lieu fees for very-low income obligation –
o 2 units X $106,044 = $212,088

• In-lieu fees for low income obligation –
o 6 units X $75,179 = $451,075

The in-lieu fee payment would total $663,163. The developer would be credited with their prior in-lieu fee payment of $39,150 for a total payment due upon the approval of this agreement of $624,013.

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 BETWEEN THE CITY OF BRENTWOOD AND AMBER PARK LLC (MISSION PEAK HOMES) FOR SUBDIVISION 8470

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 Subdivisions 8470; and

WHEREAS, Amber Peak, 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 $624,013 upon execution and approval of this Agreement;

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.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 14th day of September, 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 and low obligations.
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 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 and for six Restricted Units set aside for Low Income Households, in the amount as set forth in Exhibit A, 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.
1.2 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.
1.3 Exhibit B permits the Developer to be in compliance with the Program by satisfying one-half (1/2) of the production requirements otherwise set forth in the Program and/or paying a fee in lieu of constructing the required number of affordable units pursuant to the terms of the program, provided that Developer and City enter into this Agreement.
ARTICLE 2
GENERAL PROVISIONS
2.1 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.
2.2 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.
2.3
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
2.4 Amendment. This Agreement may be amended only in writing by City and the Developer.
2.5 No Third Party Beneficiaries. Notwithstanding anything in this Agreement to the contrary, there are not third party beneficiaries of this Agreement.
2.6 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.
2.7 Default.
2.7.1 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.
2.7.2 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.
2.7.3 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.
2.7.4 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.
2.7.5 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.
2.7.6. 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.
2.8. California Law. This Agreement shall be construed in accordance with and be government by the laws of the State of California.
2.9 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.
2.10 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.
2.11 Incorporation of Exhibits. All exhibits referred in this Agreement are incorporated herein by reference.
2.12 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.
2.13 Effective Date. The Effective Date if this Agreement shall be the date this Agreement is executed by both parties.
2.14 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”

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

2 VL $106,044 $ 212,088
6 L 75,179 451,074
$ 663,162
( 39,011)*
$ 624,151

* Applicant has already made an initial in-lieu fee payment of $39,011


EXHIBIT “B”

RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Brentwood
150 City Park Way
Brentwood, California 94513
Attn: Housing Manager

Space Above Line for Recorder's Use Only
IMPLEMENTATION AGREEMENT
This Implementation Agreement (the "Agreement") is entered into this 14th day of September, 2004 by and between the City of Brentwood (the "City") and Amber Park LLC (the "Developer").
Recitals
A. The City Council of the City of Brentwood (the "City Council") adopted and approved the Affordable Housing Program for the City (the "Program") by Ordinance No. 756 on September 9, 2003. The Program requires that all developers of new residential subdivisions or development projects of four or more lots or residential dwelling units designed and intended for residential occupancy in the City's Planning Area produce a certain number of residential units that are set aside for low- and very-low income households.
B. The Developer has submitted a development application to the City in connection with certain real property located at _______________, Brentwood, California, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"). The City has determined that development of the Property is subject to compliance with the Program requirements.
C. The Program permits the Developer to be in compliance with the Program by satisfying one-half (1/2) of the production requirements otherwise set forth in the Program and/or paying a fee in lieu of constructing the required number of affordable units pursuant to the terms of the Program, provided that Developer and City enter into this Agreement.
D. Developer has requested of the City that it be permitted pay a fee in lieu of constructing units and the City has approved such request.
E. The parties therefore desire to enter into this Agreement.
Agreements
NOW THEREFORE, based on the above recitals and in consideration of the matters set forth below, the Developer and City agree as follows:
Section 1. Developer Obligations. The Developer shall be deemed to have fulfilled its obligations under the Program by satisfying one-half (1/2) of the production requirements otherwise set forth pursuant to the Program. More specifically the Developer shall (i) pay an in-lieu fee in the amount of $624,013 to the City, all as set forth in more detail in the Affordable Housing Agreement between Developer and City dated ____________, and recorded against the Property (the “Affordable Housing Agreement”).
Section 2. Covenant Not to Sue. The Developer agrees that it will not raise any objections to or initiate or participate in, directly or indirectly, any litigation with regard to the Program, the Affordable Housing Agreement or this Agreement, or Developer's obligations hereunder or thereunder.
Section 3. Successors and Assigns. The covenants contained in this Agreement shall be binding upon the parties and any successor in interest, heirs and assigns. Upon the transfer by Developer of all of its interest in the Property, all references in this Agreement to Developer thereafter shall mean and refer to such successor in interest of Developer as may then be the owner of the Property. Nothing contained herein shall amend, alter or modify any the terms of any other agreement limiting Developer’s right to transfer the Property, or part or interest therein.
Section 4. Remedies. In the event of any breach of any covenant contained herein, the non-defaulting party 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 proper proceedings to enforce the curing of such breach. Notwithstanding the foregoing, the event of a breach by Developer hereunder, the City's rights and remedies shall include, without limitation, the right to terminate this Agreement, in which case the Developer shall be obligated to comply with one hundred percent (100%) of the affordable unit production requirements set forth pursuant to the Program.
Section 5. California Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of California.
Section 6. 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.

[SIGNATURE PAGE FOLLOWS]

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

Date:_______________________ CITY:
THE CITY OF BRENTWOOD
By:________________________________
City Manager
ATTEST:
By:________________________________
City Clerk

APPROVED AS TO FORM:
__________________________
City Attorney

Date:_______________________ DEVELOPER:
___________________________, a California _____________
By:_________________________________
Its:_________________________________

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 the Property
“A portion of the Southwest ¼ of section 2, Township 1 North, Range 2 East, Mount Diablo Base and Meridian, situated in the City of Brentwood, County of Contra Costa, State of California, generally known and described as “Subdivision 8470, Amber Park”

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