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Current Council Agenda and Past Meeting Information

CITY COUNCIL AGENDA ITEM NO. 4

Meeting Date: May 24, 2005

Subject/Title: Approve a Resolution Approving An Affordable Housing Agreement between the City of Brentwood and Ashford Park Investors, LLC for Subdivision 8763 – Ashford Park II

Prepared by: Kwame P. Reed, Housing Analyst

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
Approve a Resolution approving an Affordable Housing Agreement between the City of Brentwood and Ashford Park Investors, LLC for Subdivision 8763 – Ashford Park II.

PREVIOUS ACTION
Ordinance 790 was adopted by the City Council on January 11, 2005 amending the City of Brentwood Affordable Housing Program. At its meeting of April 21, 2005, the Housing Subcommittee recommended approval of the Affordable Housing Agreement with Ashford Park Investors, LLC for Subdivision 8763.

BACKGROUND
Ashford Park Investors, LLC for Subdivision 8763 was approved (Rezone, Tentative Map and Design Review) by the Planning Commission on December 7, 2004. The Housing Division staff has negotiated an agreement with the Developer to pay the associated in-lieu fees for the 1-unit obligation. The negotiated agreement was based on the “phase-in” portion of Ordinance 790 allowing 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 if the project had an approved RGMP allocation prior to the adoption of Ordinance 790.

The Housing Subcommittee is recommending the included agreement to City Council for approval. With the average lot size over 9,000 square feet, the developer has agreed to pay the following in lieu fees upon approval of this agreement to meet their affordable housing obligation.

• 11 units x 10% = 1.1 unit or 1 units X 50% = .5 unit, say 1 unit

For projects that generate one unit and have the ability to fee out, the in-lieu fee shall be calculated as follows:

• In-Lieu Fees for 1 VL unit ($235,000) x 30% = $70,500
• In-Lieu Fees for 1 L unit ($176,000) x 70% = $123,200
• Total Fees = $193,700

Please note: The above fee is an estimate. The actual fee in effect at the time of building permit will be calculated.

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 ASHFORD PARK INVESTORS, LLC FOR SUBDIVISION 8763

WHEREAS, on January 11, 2005, the City Council adopted Ordinance 790, 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, Ashford Park Investors, 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 effect at the time of building permit based on the following formula:
Very-Low Unit In-Lieu Fee x 70%
Low Unit In-Lieu Fee x 30%

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve an Affordable Housing Agreement with Ashford Park Investors, LLC for Subdivision 8763 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 24th day of May, 2005 by the following vote

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

ATTEST:
__________________________________
Cynthia Garcia,
Interim City Clerk

RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:

City of Brentwood
150 City Park Way
Brentwood, California 94513
Attn: City Clerk

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 THE MARK PRINGLE COMPANY, 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 8763 (APN 019-100-016 and described in Exhibit A, attached hereto and incorporated herein by reference (the “Site”). Developer proposed to construct on the Site a single-family residential development consisting of approximately 11 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 General Plan, Ordinance No. 790 (Brentwood Municipal Code Chapter 17.725) (the "Ordinance") and any implementing regulations (collectively, the "City Inclusionary Housing Requirements"), and Developer agrees to comply with the City Inclusionary Housing Requirements.
C. As a project with an application for a Residential Growth Management Program allocation that was deemed complete by the City between October 9, 2003, and the effective date of the Ordinance, the Project is subject to the phase-in provisions of the Ordinance. Further, since the minimum lot size associated with the Project is over 9,000 square feet, the Developer may elect to pay an in-lieu fee to satisfy its inclusionary obligations. The Developer has elected to comply with the City Inclusionary Housing Requirements by paying an in-lieu fee, as provided in Section 5 of the Ordinance.
AGREEMENT
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
IN-LIEU FEE
1.1 Pursuant to Section 5 of the Ordinance, Developer shall pay to the City the in-lieu fee for one affordable Unit, calculated at 70 percent of the in-lieu fee for low income households in effect at building permit issuance and 30 percent of the in lieu fee for very low income households in effect at building permit issuance (the "In-Lieu Fee"). No earlier than 30 days prior to building permit issuance, Developer shall request, in writing, the City's Housing Manager to calculate the applicable In-Lieu Fee. The City's Housing Manager or designee shall calculate the In-Lieu Fee within ten business days of such written request by Developer and shall notify Developer in writing of the fee amount. The In-Lieu Fee shall be due and payable to the City at the time of building permit issuance.
1.2 Developer’s execution of this Agreement and compliance with the terms and conditions herein, shall be deemed full and final satisfaction of the City Inclusionary Housing Requirements applicable to the Project.
ARTICLE 2
GENERAL PROVISIONS
2.1 Conditions of Approval. This Agreement shall not supercede any conditions of approval for the Project imposed pursuant to the Ordinance or other applicable City Inclusionary Housing Requirements, but is intended to be consistent with the Ordinance and other applicable City Inclusionary Housing Requirements. In the event of any conflict between this Agreement and the City Inclusionary Housing Requirements, the City Inclusionary Housing Requirements shall prevail.
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 or delivered by overnight courier, or(b) one day after postmark if sent postage prepaid by certified mail, return receipt requested.

To City:

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

To Developer:

The Mark Pringle Company, LLC
Attn: Mark Pringle
90 El Camino Real
Burlingame CA 94010
2.3 Amendment. This Agreement may be amended only in writing by City and the Developer.
2.4 No Third Party Beneficiaries. Notwithstanding anything in this Agreement to the contrary, there are no third party beneficiaries of this Agreement.
2.5 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 with respect to the buyer's right, title or interest in or to such Unit.
2.6 Default.
2.6.1 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.
2.6.2 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.
2.6.3 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 deem necessary to protect, assert or enforce any such rights or remedies.
2.6.4 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.
2.6.5 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, pursue any other remedy available to it pursuant to this Agreement or applicable law and/or demand payment of the In-Lieu Fee.
2.7. Successors and Assigns.
2.7.1 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 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. In the event that Developer transfers the Site to more than one successor in interest, all successors in interest shall be collectively required to comply with the provisions of this Agreement and shall be jointly and severally liable for any breach or failure to comply, unless each successor and City enter into an agreement outlining the specific obligations of each successor for compliance with this Agreement. The covenants shall run in favor of City and its successors and assigns for the entire period during which such covenants shall be in force and effect.
2.7.2 Transfer by Developer of Site. Except as expressly permitted by this Section 2.7.2, Developer shall not sell, transfer, convey, assign or ground lease the Site or any part thereof or interest therein (a "Transfer") during the period between the date of recordation of this Agreement and the payment of the In-Lieu Fee without prior written approval of the City. The City's approval shall not be unreasonably withheld or delayed. This restriction shall not apply to (i) any Transfer of a Unit to an individual homebuyer, (ii) 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, or (iii) any Transfer after the payment of the In-Lieu Fee. 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.
2.8 California Law. This Agreement shall be construed in accordance with and be governed 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.
[Signature page follows]

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

"CITY"
APPROVED AS TO FORM:

City Attorney
Date: THE MARK PRINGLE COMPANY, 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 the Site
[To be inserted]
 

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