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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 4

Meeting Date: October 26, 2004

Subject/Title: Approve a Resolution Approving An Affordable Housing Agreement
between the City of Brentwood and Western Pacific Housing, Inc. for Subdivision 8724, Magnolia Ranch

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 Western Pacific Housing, Inc. for Subdivision 8724, Magnolia Ranch.

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 October 7, 2004 the Housing Subcommittee recommended approval of the Affordable Housing Agreement with Western Pacific Housing, Inc. for Subdivision 8724.

BACKGROUND
Magnolia Ranch, Subdivision 8724, was originally owned by Private Island Homes and the subdivision was approved by the Planning Commission on March 16, 2004. The project was approved with a condition of approval to comply with any affordable housing program adopted by the City (Ordinance 756). Western Pacific Housing, Inc. purchased the project from Private Island Homes and worked with the Housing Division to satisfy their Affordable Housing requirement. The subdivision has 84 planned units with an affordable housing obligation under the 12-month phase-in exemption of the Ordinance of 4 units—1 very-low and 3 low income units. The 12-month phase-in exemption allows developers to comply with the Ordinance at 50% of the required 10% of their units. As such, the following was negotiated with Western Pacific Housing, Inc. to provide affordable housing for Subdivision 8724:

• Western Pacific Housing, Inc. shall construct two (2) duets (4 units total), one (1) unit will be sold as a very-low income unit, and the remaining three (3) units sold as low-income units.

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 WESTERN PACIFIC HOUSING, INC FOR SUBDIVISION 8724, MAGNOLIA RANCH

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, Western Pacific Housing, Inc. is in the process of having a final map recorded for Subdivision 8724; and

WHEREAS, Western Pacific Housing, Inc. 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 construct four (4) affordable units on the project site as required by the twelve-month phase-in exemption of Ordinance 756;

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve an Affordable Housing Agreement with Western Pacific Housing, Inc. for Subdivision 8724, Magnolia Ranch 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 26th day of October, 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
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (the "Agreement") is entered into as of the ___________ day of _____________, 200__, by and between Western Pacific Housing, Inc., a Delaware corporation ("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 located near Neroly Road and O’Hara Avenue and identified as Assessor Parcel Number 018-020-002 & 018-020-003 ("Site"). Developer proposes to construct on the Site a residential development (the "Development") consisting of eighty (80) single family detached homes and two (2) “duet” units on eighty-four (84) separate legal lots (each lot, together with all improvements thereon and membership and other rights appurtenant thereto, being referred to singly 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"), and Developer agrees to comply with the City Inclusionary Housing Requirements in accordance with and to the extent required by this Agreement.
C. Developer and City agree that four (4) Units on the Site, as described in Legal Description of Restricted Units, attached as Exhibit A hereto and incorporated herein by reference, shall be subject to the conditions and restrictions, and the rights of City as specified below ("Restricted Units").
NOW, THEREFORE, Developer and City agree as follows:
ARTICLE 1
SALE OF INDIVIDUAL RESTRICTED UNITS
1.1 Defined Terms. The following terms shall have the meanings set forth in this Section 1.1:
A. "Affordable Housing Cost" shall be as defined in Health and Safety Code Section 50052.5 or any successor statute thereto. If the statute is no longer in effect and no successor statute is enacted, the City shall establish the Affordable Housing Cost for purposes of this Agreement. For purposes of determining the Affordable Housing Cost: (i) the purchase price for a 2-bedroom Restricted Unit shall be established using the assumption that the Eligible Household purchasing the Unit is comprised of three persons, (ii) the purchase price for a 3-bedroom Restricted Unit shall be established using the assumption that the Eligible Household purchasing the Unit is comprised of four persons; and (iii) the purchase price for a 4 bedroom Restricted Unit shall be established using the assumption that the Eligible Household purchasing the Unit is comprised of five or more persons.
B. "Eligible Households" shall mean and include persons and families meeting the definitions of "Very Low Income Households" and "Low Income Households" under this Section 1.1.
C. "Very Low Income Household" shall mean a person or household whose annual gross income does not exceed 50% (which percentage shall be adjusted as provided in Title 25, Section 6932 of California Code of Regulations) of the Median Income (as defined below) and who otherwise meets Developer's standard criteria for determining eligibility for occupancy. These occupancy criteria may include an evaluation of the applicant's ability to pay mortgage, employment status and credit history. These specific standards may vary from time to time, but must be uniformly applied at all times.
D. "Low Income Household" shall mean a person or household whose annual gross income does not exceed 80% (which percentage shall be adjusted as provided in Title 25, Section 6932 of California Code of Regulations) of the Median Income (as defined below) and who otherwise meets Developer's standard criteria for determining eligibility for occupancy. These occupancy criteria may include an evaluation of the applicant's ability to pay mortgage, employment status and credit history. These specific standards may vary from time to time, but must be uniformly applied at all times.
E. "Median Income" is the area wide median gross yearly income in Contra Costa County, adjusted for household size, as established from time to time by the U.S. Department of Housing and Urban Development ("HUD"). In the event that such income determinations are no longer published or are not updated for a period of at least 18 months by HUD, Median Income shall mean the area wide median gross income for households in Contra Costa County, adjusted for family size, as published from time to time by the California Department of Housing and Community Development ("HCD"). In the event that such income determinations are no longer published, or not updated for a period of at least 18 months, the City shall provide Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD or HCD.
1.2 Affordability Requirements and Restrictions
A. Four (4) of the Units shall be sold to and occupied by Eligible Households ("Restricted Units"). One (1) of the four (4) Restricted Units shall be sold to and occupied by Very Low Income Households (as defined in Section 1.1 above), and the remaining three (3) Restricted Units shall be sold to and occupied by Low Income Households (as defined in Section 1.1 above). The Restricted Units are legally described on Exhibit A, attached hereto and incorporated herein by this reference.
B. The income of all persons residing in the Restricted Unit shall be considered for purposes of calculating the applicable income of the Eligible Household.
C. Developer shall use reasonable efforts to verify the income levels of all applicants for Restricted Units. This process may include obtaining a copy of each applicant's most recent income tax return, verifying the applicant's employment or income source, and conducting a credit search. Developer shall have the right to rely on the authenticity, truth and accuracy of all information and materials provided by or on behalf of an applicant.
D. There shall be no physical concentration of the Restricted Units. The Restricted Units shall be dispersed throughout the Site as designated by Developer in accordance with Section 1.2.F and approved by the City, which approval shall not be unreasonably withheld. The Restricted Units shall not be identifiable from the exterior. Comparable non-Restricted Units and Restricted Units shall, at the time of initial construction, be identical in exterior quality, design and materials.
E. The Restricted Units shall be constructed in the location and in accordance with the phasing of construction as stated in Exhibit B, Location of Restricted Units and Phasing of Construction. The building permits for the last ten percent (10%) of the non-Restricted Units shall not be issued until the last Restricted Unit has been issued a building permit and construction of the last Restricted Unit has begun. The closing of any sale or the occupancy of the last ten percent (10%) of the non-Restricted Units shall not be permitted until the last Restricted Unit is complete and ready for occupancy, as evidenced by an occupancy permit issued by the City.
F. Developer shall make a written designation to City, at the time the final subdivision map for the Site is recorded, of those Units that shall be Restricted Units. The total number of Restricted Units being offered for sale in accordance with this Article 1 shall be as required by Section 1.2.A. above. During the Term (as defined in Section 3.3) of this Agreement, the Restricted Units shall be subject to all of the requirements of this Agreement, including without limitation the following additional restrictions and requirements:
1. The Restricted Units shall only be sold to and be occupied by Eligible Households. More specifically, the Restricted Units that are set aside for Very Low Income Households shall only be sold to and occupied by Very Low Income Households at a price that does not exceed the Affordable Housing Cost for Very Low Income Households, and the Restricted Units that are set aside for Low Income Households shall only be sold to and be occupied by Eligible Households at a price that does not exceed the Affordable Housing Cost for Low Income Households.
2. At least ninety (90) calendar days prior to the closing of any proposed sale or other transfer of any of the Restricted Units during the Term of this Agreement, Developer shall submit to the City a copy of the written agreement of purchase and sale, together with the prospective purchaser's/transferee's income certification and a certification of all assets owned by the prospective purchaser/transferee or other financial information in a form reasonably approved by the City along with the income certification to be provided to any lender making a loan on the Restricted Unit. The City may require documentation reasonably evidencing and supporting the income and other financial information contained in the certifications. Within thirty (30) calendar days from receipt of the certifications, City shall render a decision of eligibility or noneligibility. If the prospective purchaser/transferee qualifies as an Eligible Household and the purchase price of the Restricted Unit is within the definition of Affordable Housing Cost, the City shall so certify in writing within such thirty (30) calendar days, and upon request shall execute a certificate, in recordable form, confirming that the proposed transaction complies with the requirements of this Article 1. If the prospective purchaser/transferee does not qualify as an Eligible Household or the purchase price of the Restricted Unit is not within the definition of Affordable Housing Cost, the City shall so notify the Developer in writing, within such thirty (30) calendar days, stating the basis for its determination in reasonable detail and the Developer shall not sell the Restricted Unit to such non-Eligible Household.
3. THE SALE OR OTHER TRANSFER BY DEVELOPER OF EACH RESTRICTED UNIT SHALL NOT BE COMPLETED WITHOUT THE WRITTEN CERTIFICATION BY THE CITY THAT THE PURCHASER / TRANSFEREE IS AN ELIGIBLE HOUSEHOLD AND THE PURCHASE PRICE OF THE RESTRICTED UNIT IS WITHIN THE DEFINITION OF AFFORDABLE HOUSING COST. ANY SALE OR OTHER TRANSFER OF THE RESTRICTED UNIT IN VIOLATION OF THIS AGREEMENT SHALL BE VOID.
4. EACH PURCHASER OF A RESTRICTED UNIT FROM DEVELOPER SHALL ENTER INTO AND RECORD AT THE CLOSE OF ESCROW A REFINANCE AND RESALE LIMITATION AGREEMENT, IN A FORM SIMILAR TO EXHIBIT D, ATTACHED HERETO, SUPPLIED BY AND APPROVED BY THE CITY, AND FOR THE BENEFIT OF THE CITY. UPON RECORDATION OF THE REFINANCE AND RESALE LIMITATION AGREEMENT: (A) THIS AGREEMENT SHALL HAVE NO FURTHER FORCE OR EFFECT AS AN ENCUMBRANCE AGAINST THE RESTRICTED UNIT; AND (B) DEVELOPER SHALL HAVE NO FURTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE RESTRICTED UNIT, 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 SIGNED BY PURCHASER, PROVIDED THAT DEVELOPER HAS COMPLIED WITH THE TERMS OF THIS AGREEMENT.

ARTICLE 2
MAINTENANCE AND MANAGEMENT
2.1 Maintenance and Management. During the Term of this Agreement, and prior to the sale of the Restrict Units to Eligible Households, Developer agrees to maintain the improvements and 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.
2.2 Effect of Article 2. This Article 2 shall terminate and be of no further force and effect upon the first to occur of: (a) the last day of the Term as set forth in Section 3.3 below; or (b) the closing of the sale by Developer of, and the transfer of title to, the last Restricted Unit pursuant to Article 1 above.

ARTICLE 3
GENERAL PROVISIONS

3.1 Conditions of Approval. This Agreement shall not supercede any conditions of approval for the Development pursuant to the Ordinance or other applicable City Inclusionary Housing Requirements, but rather is consistent with the Ordinance and other applicable City Inclusionary Housing Requirements.

3.2 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 FedEx) 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:
To City:

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

Western Pacific Housing, Inc.
6658 Owens Drive
Pleasanton, CA 94588

Any notice sent in accordance with this Section 3.2 shall be deemed delivered on actual receipt or refusal of delivery.

3.3 Duration. The covenants set forth herein on the Restricted Units shall be covenants running with the land and shall inure to the benefit of the City and its successors and assigns, and subject to any shorter time limitations specifically set forth herein shall be enforceable by the City and its successors and assigns, for a period of forty-five (45) years from the date of recording this Agreement (the “Term”). The parties agree that for the Term of this Agreement, all future deeds or transfers of interest shall show or reference the applicable restrictions of this Agreement. Upon recordation of the Refinance and Resale Limitation Agreement, attached hereto as Exhibit D, this Agreement shall have no further force or effect as an encumbrance against the Restricted Unit to which such Refinance and Resale Limitation Agreement pertains, and Developer shall have no further obligations or liabilities with respect to the Restricted Unit, 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.
3.4 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. The preceding sentence shall not be construed to hold Developer or it successors and assigns accountable or responsible for the conduct of any homebuyer.

3.5 Amendment. This Agreement may be amended only in writing by City and the Developer.
3.6 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 Site 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.
3.7. Successors and Assigns.
A. Binding Effect; Covenants Run with Land. The covenants contained in this Agreement shall inure to the benefit of the City and its successors and assigns and, subject to Section 3.8 and any other limitations contained herein, shall be binding upon Developer and any successor in interest as owner of fee title to the Site, or any part thereof. Upon the transfer by Developer of all of its interest in the Site, 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 Site. The covenants shall run in favor of the City and its successors and assigns for the entire period during which such covenants shall be in force and effect. The City, and its successors and assigns, in the event of any breach of any such covenants, 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.
B. Transfer by Developer of Site. Except as expressly permitted by this Section 3.7.B, Developer shall not complete the sale, transfer, conveyance, assignment or ground lease of the Site or any part thereof or interest therein (a "Transfer") during the period between the date of recordation of this Agreement and the closing date for the sale of the last Restricted Unit to be sold pursuant to Article 1 above without prior written approval of the City as provided in Section 1.2.F.3 above. The City's approval shall not be unreasonably withheld or delayed. This restriction shall not apply to any Transfer of any Unit to individual homebuyers or any Transfer of Developer's interest in the Site to any trust, partnership, corporation, limited liability company or other entity that is managed and controlled by Developer whether through any trust, partnership, corporation, limited liability company or other entity, and shall not apply to any Transfer after the closing date for the last Restricted Unit sold pursuant to Article 1 above. This restriction on Transfer shall not be deemed to limit or restrict the making of dedications or granting of easements or permits to facilitate the development of the Site, or to limit or restrict the sale of any individual Units. This restriction on Transfer shall also not be deemed to prohibit, limit or restrict the assignment or granting of any security interests in the Site for the purpose of securing loans or funds to be used for financing the construction of the improvements on the Site, or the exercise by any lenders of their rights and remedies, including without limitation foreclosure, under the agreements and instruments evidencing or securing any such financing.
3.8 No Third Party Beneficiaries. Notwithstanding anything in this Agreement to the contrary, there are no third party beneficiaries of this Agreement.
3.9 Effect of Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall have any force or effect on any buyer of a single Unit or its right, title or interest in or to such Unit, except that buyers of Restricted Units shall execute and be subject to the Refinance and Resale Limitation Agreement attached hereto as Exhibit D. The foregoing exemption and release shall be self-executing and require no further instruments or assurances to be effective.
3.10 Default.
a. Any failure by Developer to perform any term or provision of this Agreement shall constitute an "Event of Default" if Developer does not cure such failure within thirty (30) days following written notice of default from the City; provided that if such failure is of a nature which cannot reasonably be cured within such thirty (30) day period, an “Event of Default” shall be deemed to have occurred only if 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.
b. 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.
c. 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 deem necessary to protect, assert or enforce any such rights or remedies.
d. In the event of an 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.

e. Notwithstanding the foregoing, failure by Developer to comply with the terms of this Agreement shall be grounds for the City to suspend issuance of building permits for non-Restricted Units, to suspend building inspections of non-Restricted Units, to not issue occupancy permits for non-Restricted Units, or pursue any other remedy available to it.

3.11 California Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of California.

3.12 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:__________________________ 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: _________________________ WESTERN PACIFIC HOUSING, INC. , a Delaware Corporation
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

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

EXHIBIT B
Location of Restricted Units and Phasing of Construction
(to be inserted)
(to be created by Developer and agreed to by City)
EXHIBIT C
In Lieu of Constructing Affordable Housing Fee
Number of Reserved Units
Subject to Fee Fee Amount Total Fee Due City
$

THIS PAGE LEFT BLANK INTENTIONALLY

EXHIBIT D
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Brentwood
150 City Park Way
Brentwood, California 94513
Attn.: City Clerk

SPACE ABOVE LINE FOR RECORDER'S USE
REFINANCE AND RESALE LIMITATION AGREEMENT
For valuable consideration, the receipt of which is hereby acknowledged, _____________________________________________ (individually or collectively, "Owner"), and THE CITY OF BRENTWOOD and THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD (collectively defined herein as "City") agree as follows, with reference to the following facts:
RECITALS
A. Owner owns that certain real property located at _____________, Brentwood, California and more particularly described in Exhibit A attached hereto and incorporated herein. The real property, which includes the land, the residence and all other improvements thereon, and all membership and other rights appurtenant thereto, is referred to in this Agreement as the "Restricted Unit." The Restricted Unit is part of a ____-unit residential community referred to herein as the "Project."
B. City has acted to enforce the inclusionary housing requirements set forth in Ordinance No. 756 by establishing an affordable housing program for the City of Brentwood. As part of the affordable housing program, City has procured assurances that the Restricted Unit will be sold, owned and occupied only by members of Eligible Households (as defined below), and will be sold only for a price that does not exceed the Affordable Housing Cost (as defined below).
C. Owner has received the benefit of these assurances in purchasing the Restricted Unit, and is providing the same assurances for the benefit of the City by entering into this Agreement. Owner and City therefore agree that the Restricted Unit shall be subject to the terms, conditions and restrictions, and the rights of City, as specified in this Agreement.
NOW, THEREFORE, in this factual context, for good and valuable consideration, Owner and City agree as follows:
1. Principal Residence. Owner shall occupy the Restricted Unit as his or her principal and legal residence. Upon request by the City, the Owner shall submit an affidavit to the City certifying that the Restricted Unit is the Owner's principal and legal residence. If Owner, without the City's prior written consent: (i) transfers, or attempts to transfer, the Restricted Unit in violation of the terms of this Agreement contained hereinbelow, (ii) vacates or leases the Restricted Unit, or (iii) otherwise does not occupy the Restricted Unit as Owner's principal and legal residence, the City may purchase the Restricted Unit at a price (“Option Price”) equal to the lesser of (a) the fair market value of the Restricted Unit (as determined by agreement of the parties or in the absence of an agreement, by an appraisal acceptable to the City) or (b) the Affordable Housing Cost, using the maximum housing cost for the Eligible Household, as adjusted for the applicable unit size as defined in Health and Safety Code Section 50052 or any successor thereto. This option shall be exercised by the City giving the Owner notice (the “Principal Residence Restriction Breach Exercise Notice”). The City may designate another governmental entity, a nonprofit organization or an Eligible Household to purchase the Restricted Unit.
2. Debt and Refinance Limitations. Without the City's prior written consent, Owner shall not obtain or refinance any loan in connection with the Restricted Unit (a "Loan") that causes Owner's indebtedness (i.e. the total amount borrowed by Owner) in connection with the Restricted Unit to exceed the Affordable Housing Cost (as defined in Section 4(a) below). If Owner, without the City’s prior written consent, obtains or refinances any loan in connection with the Restricted Unit that causes Owner’s indebtedness in connection with the Restricted Unit to exceed the Affordable Housing Cost, the City may purchase the Restricted Unit at the Option Price. This option shall be exercised by the City giving the Owner notice (the “Debt Restriction Breach Exercise Notice”). The City may designate another governmental entity, a nonprofit organization or an Eligible Household to purchase the Restricted Unit.
IF THE CITY EXERCISES SUCH RIGHT, ANY LOAN TO THE EXTENT IN EXCESS OF THE OPTION PRICE SHALL BE NULL AND VOID AND NOT AN ENCUMBRANCE AGAINST THE RESTRICTED UNIT.
3. Submission of Loan or Refinance Information to City. Not less than forty-five (45) days prior to a Owner obtaining or refinancing a Loan that requires City's approval, Owner shall submit to the City a copy of the proposed loan's terms together with any and all other information reasonably requested by the City, including without limitation a copy of the loan application and Good Faith Estimate. Within fifteen (15) business days from receipt of the income certifications, City shall render a decision. If the City does not approve the Loan, the City shall so notify Owner in writing within such fifteen (15) business days, stating the basis for its determination in reasonable detail.
4. Resale Limitations. Except as otherwise provided in this Agreement during the Term of this Agreement, the Restricted Unit shall only be sold to an Eligible Household and only for an amount that does not exceed the Affordable Housing Cost. As used in this Agreement:
a. "Affordable Housing Cost" shall be as defined in Health and Safety Code Section 50052.5 or any successor statute thereto. If the statute is no longer in effect and no successor statute is enacted, the City shall establish the Affordable Housing Cost for purposes of this Agreement. For purposes of determining the Affordable Housing Cost: (i) the purchase price for a 2 bedroom Restricted Unit shall be established using the assumption that the Eligible Household purchasing the Unit is comprised of three persons; (ii) the purchase price for a 3 bedroom Restricted Unit shall be established using the assumption that the Eligible Household purchasing the Unit is comprised of four persons; and (iii) the purchase price for a 4 bedroom Restricted Unit shall be established using the assumption that the Eligible Household purchasing the Unit is comprised of five persons.
b. "Eligible Household" shall mean and include a person or household whose annual gross income does not exceed [insert "50%" for very-low income household or "80% for low income household"] of the Median Income, as defined below (which percentage shall be adjusted as provided in Title 25, Section 6932 of California Code of Regulations).
c. "Median Income" shall mean the area wide median gross yearly income in Contra Costa County, adjusted for household size, as established from time to time by the U.S. Department of Housing and Urban Development ("HUD"), or, by the California Department of Housing and Community Development ("HCD") if HUD ceases to establish such income standards. In the event that neither HUD nor HCD are establishing such income standards, the City shall provide Owner with income standards which are determined in a manner reasonably similar to the methods of calculation previously used by HUD or HCD.
5. Submission of Resale Information to City. Not less than forty-five (45) days prior to any proposed sale or other transfer of the Restricted Unit during the Term of this Agreement, Owner shall submit to the City a copy of the written agreement of purchase and sale, together with the prospective purchaser's/transferee's income certification, a list of all assets owned by the prospective purchaser/transferee or other financial information in a form reasonably approved by the City along with the income certification to be provided to any lender making a loan on the Restricted Unit and The Notice of Intent to Transfer attached to this document as “Exhibit B”. The City may require documentation reasonably evidencing and supporting the income and other financial information contained in the certifications. Within fifteen (15) business days from receipt of the income certifications, City shall render a decision of eligibility or noneligibility. If the prospective purchaser/transferee qualifies as an Eligible Household and the purchase price of the Restricted Unit is within the definition of Affordable Housing Cost, the City shall so certify in writing within such fifteen (15) business days, and upon request shall execute a certificate, in recordable form, confirming that the proposed transaction complies with the requirements of this Agreement. If the prospective purchaser/transferee does not qualify as an Eligible Household or the purchase price of the Restricted Unit is not within the definition of Affordable Housing Cost, the City shall so notify Owner in writing, within such fifteen (15) business days, stating the basis for its determination in reasonable detail.
6. Ineligible Transfers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE SHALL BE NO SALE OR OTHER TRANSFER OF THE RESTRICTED UNIT WITHOUT THE WRITTEN CERTIFICATION BY THE CITY THAT THE PURCHASER / TRANSFEREE IS AN ELIGIBLE HOUSEHOLD AND THE PURCHASE PRICE OF THE RESTRICTED UNIT IS WITHIN THE DEFINITION OF AFFORDABLE HOUSING COST. ANY SALE OR OTHER TRANSFER OF THE RESTRICTED UNIT IN VIOLATION OF THIS AGREEMENT SHALL BE VOID.
7. Permissible Transfers. The following transfers of title to a Restricted Unit or any interest therein are not subject to the City's prior written approval so long as the transferree's household (i.e., the persons or persons acquiring ownership of the Restricted Unit) qualifies as an Eligible Household and occupies the Restricted Unit in compliance with the terms of this Agreement: (a) transfer by gift, devise or inheritance to the spouse, issue or adopted child of the Owner; (b) transfer resulting from death of an Owner when the transfer is to a co-Owner or joint tenant; (c) transfer by an Owner to any person who becomes a co-Owner of the Restricted Unit provided (i) the Owner retains at least a 33% interest in the Restricted Unit, (ii) the co-Owner and Owner together qualify as an Eligible Household, and (iii) co-owner agrees to be bound by this Agreement by signing a copy of this Agreement and delivering it to the City; (d) transfer of title to a spouse resulting from divorce; (e) decree of dissolution or legal separation or from a property settlement agreement incidental to such a decree in which one of the Owners becomes the sole owner; or (f) acquisition of title to the Restricted Unit or interest therein in conjunction with marriage; (g) a transfer between co-Owners or a transfer by Owner into an inter vivos trust in which Owner is a beneficiary and Owner continues to occupy the Restricted Unit.
8. Effect of Sale. THE PURCHASER OF THE RESTRICTED UNIT FROM OWNER SHALL ENTER INTO AND RECORD AT THE CLOSE OF ESCROW A NEW REFINANCE AND RESALE LIMITATION AGREEMENT, IN A FORM SIMILAR TO THIS AGREEMENT, SUPPLIED AND APPROVED BY THE CITY, AND FOR THE BENEFIT OF THE CITY. IF THE PURCHASER FAILS TO EXECUTE A NEW AGREEMENT, PURCHASER WILL REMAIN SUBJECT TO THIS AGREEMENT. UPON THE CLOSING, AND RECORDATION OF THE NEW REFINANCE AND RESALE LIMITATION AGREEMENT, OWNER SHALL HAVE NO FURTHER OBLIGATIONS OR LIABILITIES TO THE CITY WITH RESPECT TO THE RESTRICTED UNIT, INCLUDING WITHOUT LIMITATION ANY RESPONSIBILITY FOR COMPLIANCE BY THE PURCHASER OR ITS SUCCESSORS WITH THE TERMS AND CONDITIONS OF THE NEW REFINANCE AND RESALE LIMITATION AGREEMENT.
9. City's Option to Purchase. If the Owner cannot in good faith, and despite using best commercially reasonable efforts, locate an Eligible Household to purchase the Restricted Unit at an Affordable Housing Cost, the Owner shall have the right, but not the obligation, to give the City written notice of such circumstances (the "City Option Notice"). However, the Owner may not sell the Restricted Unit for a price that exceeds the Affordable Housing Cost or to a non-Eligible Household without first giving the City an City Option Notice so that the City has the opportunity to exercise the option granted by this Section 9. In the event Owner gives the City a City Option Notice, the City may purchase the Restricted Unit at the Option Price. This option shall be exercised by the City giving the Owner notice, no later than ninety (90) days following City's receipt of the Option Notice, of the City's intent to purchase the Restricted Unit through submittal of the Notice of Exercise attached to this document as “Exhibit C”. The City may designate another governmental entity, a nonprofit organization or an Eligible Household to purchase the Restricted Unit. If City or its designee does not exercise the option to purchase the Restricted Unit, then the terms of Section 12 below shall apply.
10. Escrow. If the City exercises its rights under Sections 1, 2 or 9 above, the closing of the purchase and sale of the Restricted Unit to the City or its designee shall be effectuated in accordance with the following provisions:
a. Close of Escrow. Close of escrow shall occur no later than one hundred twenty (120) days following the receipt by Owner of the Principal Residence Restriction Breach Exercise Notice or Debt Restriction Breach Exercise Notice or the receipt by City of the Option Notice, as applicable. If escrow is required to close on a Saturday, Sunday or Holiday, it shall close on the next business day following the Saturday, Sunday or Holiday.
b. Prorations and Costs. All title insurance premiums, transfer taxes and escrow fees shall be paid according to customary practice in Contra Costa County.
c. Escrow Instructions. The parties shall execute all escrow instructions which the Escrow Holder reasonably requires within fifteen (15) days after the request thereof. All escrow instructions shall be consistent with the provisions of this Agreement.
d. Monetary Liens. The Purchase Price shall be applied to any monetary liens encumbering the Restrict Unit prior to any disbursement to Owner.
11. Notice of Resale. In order to permit the City to enforce its rights under this Agreement, Owner shall provide written notice to the City not less than forty-five (45) days in advance of scheduled close of escrow for the sale of the Restricted Unit. Notice shall be given in the form of Exhibit C.
12. Owner's Right to Sell Free of Restrictions. In the event the City does not exercise the purchase option provided pursuant to Section 9, or the City does exercise the option but fails to close the transaction as provided in Section 10 above for any reason other than a default by Owner, Owner shall have the right, for a period of 180 days after the date the City's option expired or the City failed to close, as the case may be, to sell the Restricted Unit for a market sales price to any buyer, regardless of income, without any obligation on the part of the buyer to enter into and record a new Refinance and Resale Limitation Agreement at closing. In the event of such a sale, this Agreement shall have no force or effect as an encumbrance against the Restricted Unit on and after the closing date. If Owner or the buyer requests, the City shall provide a recordable quitclaim deed at closing in accordance with Section 15 below. If Owner does not close on the sale of the Restricted Unit within the 180 day-period provided herein, the requirements of this Agreement shall again apply to any proposed sale of the Restricted Unit, including without limitation the City option rights.
13. No Discrimination. Owner 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, age, marital status, disability, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Restricted Unit, nor shall the Owner 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 tenants, lessees or vendees in the Restricted Unit.
14. Notices. Notices required to be given to the City or to Owner shall be given by hand delivery, recognized overnight courier (such as UPS, DHL or FedEx) or by 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:
To City:

Housing Manager
City of Brentwood
150 City Park Way
Brentwood, CA 94513
To Owner:

At the address set forth in Recital A.

15. Duration. The covenants set forth herein shall be covenants running with the land and shall inure to the benefit of the City and its successors and assigns, and shall be enforceable by the City, the City of Brentwood or their successors and assigns, without regard to whether the City is or remains an owner of any land or interest to which such covenants relate, until the date that is 45 years after the date this Agreement is recorded (the "Term"). The parties agree that for the Term of this Agreement, all future deeds or transfers of interest shall show or reference the applicable restrictions of this Agreement. Upon expiration of the Term, City shall provide Owner with a quitclaim, release or other instrument, in recordable form, sufficient to confirm the release the Restricted Unit from the effect of this Agreement.
16. Amendment. This Agreement may be amended only in a writing signed by City and the Owner.
17. 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 to Owner as owner of the Unit 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.
18. Successors and Assigns. The covenants contained in this Agreement shall inure to the benefit of the City and its successors and assigns and shall be binding upon Owner and any successor in interest to the Restricted Unit. Provided that Owner has complied with all terms of this Agreement, upon the transfer by Owner of all of its interest in the Restricted Unit, such Owner shall automatically be released from and have no further obligations or liabilities under this Agreement, and all references in this Agreement to Owner thereafter shall mean and refer to such successor in interest of a prior Owner as may then be the owner of the Restricted Unit. The covenants shall run in favor of the City and its successors and assigns for the entire period during which such covenants shall be in force and effect, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants relate. The City, and its successors and assigns, in the event of any breach of any such covenants, 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.
19. No Third Party Beneficiaries. Notwithstanding anything in this Agreement to the contrary, there are no third party beneficiaries of this Agreement.
20. California Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of California.

21. 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 Owner have caused this Agreement to be executed on their behalf by their respective officers thereunto duly authorized.
Dated for reference purposes only as of , 20__.

CITY:
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

OWNER
By:
By:


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

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 Unit

EXHIBIT B
VIA CERTIFIED MAIL – RETURN RECEIPT REQUESTED

To: City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attn:

Date:

Re: Notice of Intent to Transfer

The undersigned Owner(s), , hereby give(s) notice of his/her/their intent to transfer the property located at , Brentwood, California (the “Property”). Owner may be contacted at the Property or at the following address:

Owner’s daytime telephone number is ( )

The proposed transfer of the Property is to the following person(s):

Name:

Address:

Telephone: ( )

The proposed transfer is (check one):

 Sale  Lease
 Other Specify:

Owner(s) signature(s):

EXHIBIT C

Date:

To:
Owner or Transferee

Address

Re: Notice of Exercise

The City of Brentwood (“City”) hereby gives notice that it is exercising its option to purchase the real property located at , Brentwood, California. The option has been granted to the City pursuant to the Refinance and Resale Restriction Agreement and Option to Purchase between Owner and the City dated and recorded on as Instrument No. . [The Authority has assigned its option to purchase the real property to .] An escrow for the purchase will be opened with First American Title Company.

City of Brentwood

By:

Its:

EXHIBIT D

CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code Sec. 27281)

This is to certify that the interest in real property conveyed by the Refinance and Resale Limitation Agreement dated from to the City of Brentwood, a California municipal corporation, is hereby accepted by the undersigned office or agent on behalf of the City of Brentwood pursuant to authority conferred by Resolution No. 2315 dated June 12, 2001 ; and the grantee consents to recordation thereof by its duly authorized officer.

Dated By:
John Stevenson

Its: City Manager

Attest:
Karen Diaz, City Clerk

PAGES AFTER THIS POINT ARE NOT TO BE RECORDED AS PART OF THE REFINANCE AND RESALE AGREEMENT

Order No.
Escrow No.
Loan No.

WHEN RECORDED MAIL TO:
City of Brentwood
Attn: Karen Diaz, CMC, City Clerk
150 City Park Way
Brentwood, CA 94513

SPACE ABOVE THIS LINE FOR
RECORDER’S USE ONLY

Request For Notice Under Section 2924b Civil Code

In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as Instrument No. on , , in the Official Records of Contra Costa County, California, and describing land therein as: executed by , as Trustor, in which is named as Beneficiary, and , as Trustee, be mailed to the City of Brentwood, at City of Brentwood, 150 City Park Way, Brentwood California 94513, Attn: . By:

NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED.

STATE OF CALIFORNIA ) ss.
COUNTY OF )

On , before me,
The undersigned, a Notary Public in and for said State,
Personally appeared

Personally known to me (or proved to me on the basis of
Satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same.

WITNESS my hand and official seal.

Signature (This area for official notarial seal)

DISCLOSURE STATEMENT

THERE ARE RESTRICTIONS ON THE SALE OF THE PROPERTY YOU ARE BUYING. EXCEPT FOR A TRANSFER TO THE CITY FOLLOWING CITY’S EXERCISE OF ITS OPTION TO PURCHASE, THIS PROPERTY MAY ONLY BE SOLD TO AN “ELIGIBLE HOUSEHOLD” AT A PROCE NOT TO EXCEED THE ADJUSTED RESALE PRICE WHICH IS CAPPED AT AN “AFFORDABLE HOUSING COST.”

THIS MEANS THAT YOU MAY NOT SELL THE PROPERTY FOR MARKEY VALUE TO WHOMEVER YOU LIKE.

THESE RESTRICTIONS WILL BE IN EFFECT UNTIL , . ANY SALE OF THE PROPERTY IN VIOLATION OF THE RESTRICTIONS, SHALL BE VOIDABLE AT THE ELECTION OF THE CITY.

TO DETERMINE WHO AN ELIGIBLE HOUSEHOLD IS, AND WHAT THE ADJUSTED RESALE PRICE AND AFFORDABLE HOUSING COST ARE, YOU SHOULD CONTACT THE OF THE CITY OF BRENTWOOD.

YOU SHOULD ALSO READ THE REFINANCE AND RESALE LIMITATION AGREEMENT RECORDED AGAINST THE PROPERTY. YOU MAY OBTAIN A COPY FROM THE CITY OF BRENTWOOD OR FROM THE ESCROW COMPANY.

I HAVE READ THE FOREGOING AND I UNDERSTAND WHAT IT MEANS.

BUYER DATE BUYER DATE
 

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