HomeMy WebLinkAboutCC RES 12-97RESOLUTION NO. 12-97
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN
APPROVING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE
BONDS FOR THE PURPOSE OF FINANCING THE ACQUISITION AND
CONSTRUCTION OF THE ANTON LEGACY APARTMENTS
WHEREAS, the California Statewide Communities Development Authority (the
"Authority") is authorized by the laws of the State of California (the "Law") to execute
and deliver multifamily housing revenue obligations for the purpose of financing the
acquisition, construction/rehabilitation and development of multifamily residential rental
facilities located within the area of operation of the Authority which are to be occupied,
in part, by very low and low income tenants; and
WHEREAS, Anton Legacy Tustin L.P. (the "Borrower"), a California limited
partnership Capital, has requested the Authority issue and deliver multifamily housing
revenue obligations in the anticipated principal amount of $34,000,000 (the
"Obligations"), the proceeds of which may only be used for the purpose of financing the
acquisition and construction of a 225-unit multifamily residential rental facility to be
located at the Southeast corner of the intersection of Tustin Ranch Road and Legacy
Road in the City of Tustin, California (the "Project"); and
WHEREAS, the City of Tustin is a member of the Authority;
WHEREAS, the Obligations which are expected to be issued and delivered to
finance the acquisition and construction of the Project would be considered "qualified
exempt facility bonds" under Section 142 (a) of the Internal revenue Code of 1986, as
amended (the "Code"), and Section 147(f) of the Code requires that the "applicable
elected representatives" with respect to the jurisdiction in which the Project is located
hold, or cause to be held, a public hearing with respect to the issuance and delivery of
the Obligations; and
WHEREAS, the City Council of the City of Tustin, as the "applicable elected
representatives" of the City of Tustin, has held said public hearing at which all those
interest in speaking with respect to the proposed financing of the Project were heard.
NOW, THEREFORE, BE IT RESOLVED as follows:
Section 1. The City Council hereby finds and determines that the foregoing
recitals are true and correct.
Section 2. For purposes of the requirements of the Code only, the City Council
hereby approves the proposed financing of the Project by the Authority with the
proceeds of the Obligations; provided, however, that such approval is expressly
conditioned upon the requirement that the Borrower prior to receipt of any bond
Resolution 12-97
Page 1 of 3
proceeds from the Authority first enter into a Declaration of Affordable Housing
Covenants and Regulatory Agreement with the City of Tustin and the Tustin Housing
Authority, attached as Exhibit A incorporated herein. I
Section 3. The issuance and delivery of the Obligations shall be subject to the
approval of and execution by the Authority of all financing documents relating thereto to
which the Authority is a party and subject to the sale of the Obligations by the Authority.
Section 4. The adoption of this Resolution is solely for the purpose of meeting
the requirements of the Code and shall not be construed in any other manner, the City
nor its staff having fully reviewed or considered the financial feasibility of the Project or
the expected financing or operation of the Project with regards to any State of California
statutory requirements, and such adoption shall not obligate (i) the City to provide
financing to the Borrower for the acquisition, construction and development of the
Project or to issue the Obligations for purposes of such financing; or (ii) the City, of or
any department of the City, to approve any application or request for, or take any other
action in connection with, any environmental, General Plan, zoning or any other permit
or other action necessary for the acquisition, construction, development or operation of
the Project.
Section 5. The City Clerk of the City shall forward a certified copy of this
Resolution and a copy of the affidavit of publication of the notice of public hearing to: LIMM
Thomas A. Downey
The Orrick Building
Orrick, Herrington & Sutcliffe LLP
405 Howard Street
San Francisco, California 94105
Section 6. The City Clerk shall certify to the adoption of this Resolution, and
thenceforth and thereafter the same shall be in full forth and effect.
Resolution 12 -97
Page 2 of 3
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN
1, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, do hereby certify that the whole number of the members of the City Council
of the City of Tustin is five; that the above and foregoing Resolution No. 12-97 was duly
passed and adopted at a regular meeting of the Tustin City Council, held on the 20th day
of November, 2012, by the following vote:
•
Nielsen, Murray, Amante, Gavello, Gomez (5)
None
None
None
-11-1111W 6W
PAMELAA STOKI�R-
City Clerk
Resolution 12-97
Page 3 of 3
(0)
(0)
(0)
RESOLUTION NO. 12 -97
Declaration of Affordable Housing Covenants and Regulatory Agreement
��ru
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST DOCUMENT
BE RECORDED AND EXEMPT FROM
RECORDING FEES PER
GOVERNMENT CODE SECTION 6103
AND SECTION 27383
I :
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Tustin Housing Authority
City Clerk
- [SPACE ABOVE LINE FOR RECORDER'S USE ONLY]
DECLARATION OF AFFORDABLE HOUSING COVENANTS AND
REGULATORY AGREEMENT
THIS DECLARATION OF AFFORDABLE HOUSING COVENANTS AND
REGULATORY AGREEMENT (this "Housing Agreement" ) is made and entered into as of
2012, by and between the TUSTIN HOUSING AUTHORITY, a
California Housing Authority (the "Authority") and the CITY OF TUSTIN, a municipal f I
corporation and public body corporate and politic of the State of California (together with any
successor of City, the "City;" and the City together with the Authority sometimes collectively
referred to as "Tustin") and ANTON LEGACY TUSTIN L.P., a California limited partnership
(as further defined in Exhibit "B ", "Owner"). Tustin and Owner are sometimes referred to
herein individually as a "Party" and collectively as the "Parties." All capitalized terms set forth
in this Agreement that are not otherwise defined below have the meanings for the same set forth
in the Glossary of Defined Terms in Exhibit "B" attached hereto.
RECITALS
A. The City and Owner have entered into that certain Tustin Legacy Disposition and
Development Agreement for Parcel IA North, dated as of 2012 (the "DDA"),
pursuant to which Owner is required to construct a certain number of Affordable Housing Units
(defined in Exhibit. B, Glossary of Defined Terms) and to provide for the rental of these
Affordable Housing Units to Qualified Households at rents that do not exceed the applicable
Maximum Monthly Affordable Rents (defined in Exhibit B).
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
B. Owner holds fee title to that certain real property consisting of an approximately
acre site, legally described in Exhibit "A", attached hereto (the "Property"). Owner
acquired its fee title to the Property by that certain Quitclaim Deed from the City, dated
, 201_, recorded _, 201_ as Instrument No. in the
Official Records in the Orange County Recorder's Office (the "Official Records").
C. On February 3, 2003, the City adopted an ordinance approving the Marine Corps
Air Station-Tustin Specific Plan/Reuse Plan, setting forth the zoning and entitlement framework
for future development of the former Marine Corps Air Station, Tustin ("Tustin Legacy"),
including the Property. Since its initial adoption, the City has approved numerous Specific Plan
Amendments. All references in this Agreement to the "S;1ecific Plan" shall be deemed to refer
to the MCAS Tustin Specific Plan/Reuse Plan, as amended and as the same may be amended
from time to time.
D. Pursuant to the City's Ordinance No. , City Council Resolution No. CC
and Planning Commission Resolutions No. and _, the City approved the
following entitlements for the Property (the "Entitlements "): (i) [site plan and design review
approval as approved by the Planning Commission by Resolution No. 1; (ii) a combined
density bonus for the Property and the Parcel 2A Property that would allow the transfer of
Affordable Housing Units from Lots 29, 38 and 39 of Tentative Tract Map No. 17404 (the
"Parcel 2A Property") to the Property and the development of two hundred twenty-five (225)
Affordable Rental Housing Units on the Property, including 88 Very Low Income Units, 73 Low
Income Units, and 64 Moderate Income Units (the "2roje�t"), pursuant to SB 1818
(Government Code Sections 65915 to 65918, the "Reirsity Bonus Law") and the Tustin City
Code (the "City Code") Article 9, Chapter I {the "llensity Bonus Ordinance"); and (iii) a
development agreement between the City and Owner, for development of the Project, pursuant to
which Owner provides certain benefits to the City in consideration of the vested rights and other
consideration set forth in such development agreement.
E. The City has recorded against title to the Property those certain Special
Restrictions, dated as of , 2012 (the "Special Restrictions"), recorded in the
Official Records on _, 2012 as Instrument No. pursuant to which Owner is
required to comply with certain restrictions, obligations and limitations related to the ownership
and use of the Property.
F. The City and Owner have entered into that certain Development Agreement for
Parcel fA North, dated as of 1 2012 (the "DA"), pursuant to which Owner is
required to perform certain obligations and provide certain benefits to the City. The DA and the
DDA are sometimes collectively referred to as the "Development Agreements."
G. The Density Bonus Law and the Density Bonus Ordinance, among other matters,
provide for the following:
2
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
Luinaamvi
SW
(1) Pursuant to City Code Section 9122, the City must, upon the request of an
applicant, grant a density bonus of up to thirty-five percent (35%) (the "Mandatory Density
Bonus") when an applicant proposes to restrict twenty percent (20%) of the Base Unit Count to
Low Income Units. In the aggregate, there are 161 Very Low Income Units and Low Income
Units proposed to be constructed on the Property, thus exceeding the percentage of Affordable
Housing Units required to obtain the maximum Mandatory Density Bonus.
(2) The maximum residential density that is permitted by the Specific Plan to
be constructed on both the Property and the Parcel 2A Property, on a combined basis, is 192
residential units on the Property and 375 residential units on the Parcel 2A Property (in the
aggregate, the 567 residential units permitted on the two properties are the "Base Unit Count,").
With application of the 33.7% Mandatory Density Bonus a total of 191 additional residential
units may be constructed on the combined parcels of the Property and the Parcel 2A Property.
(3) Accordingly, after application of the Mandatory Density Bonus, the
Property and the Parcel 2A Property, on a combined basis, may contain an aggregate of 758
residential units.
(4) The City has allocated the total residential units between the Property and
the Parcel 2A Property as follows: (i) the Property shall contain 225 affordable residential units
as further described in this Agreement and (ii) provided that 37 units at the Parcel 2A Property
are restricted to Moderate Income Households, the Parcel 2A Property may contain up to 533
residential units.
(5) The City has also allocated the total affordable residential units between
the Property and the Parcel 2A Property as follows: (i) the Property shall contain 88 Very Lo�v
Income Units, 73 Low Income Units, and 64 Moderate Income Units and (ii) the Parcel 2A
Property shall contain 37 Moderate Income Units.
(6) When an applicant seeks a density bonus on a project that proposes to
restrict fifteen percent (15%) of the Base Unit Count to Very Low Income Households, pursuant
to Section 9123 of the Tustin City Code the City must, upon the request of an applicant, grant a
total of up to three (3) incentives or concessions. The project proposed for the Property will
include 88 Very Low Income Units, out of a total of 567 residential units that are the Base Unit
Count on the Property and the Parcel 2A Property. Thus, sixteen percent (16%), rounded up, of
the Base Unit Count will be Very Low Income Units and the projects are entitled to three (3)
concessions. In addition, Section 9125 of the Tustin City Code the City provides that the City
Council may grant additional assistance to a project to ensure that the development of affirdable
housing is facilitated, including the granting of concessions.
i. One concession requested by the applicant for the Property is an
increase in the maximum height of certain structures beyond the 45 foot maximum building
height for the Property under the Specific Plan.
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
K. Conditions of the DDA and the Entitlements require that Owner agree to enforce
certain affordable housing restrictions to ensure the affordability of the Affordable Housing
Units in the Project.
M
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
ii. A second concession requested by the applicant for the Property is
a reduction in the setback on Park Avenue, through an encroachment of 4.5 feet into the Specific
Plan required 30-foot building setback.
iii. A third concession requested by the applicant for the Property is
the allowance of the following parking spaces for the Project: (A) 434 spaces instead of the 467
spaces required by the Specific Plan; (B) 88 compact spaces that are not permitted by the
Specific Plan for residential projects; and (C) 225 covered parking spaces instead of the 372
carports and garages required by the City Code.
iv. A fourth concession requested by the applicant for the Property is
the reduction in the gross area of on-site Common Open Space such that the Project would
contain 87,822 square feet of on-site Common Open Space instead of the 90,000 square feet of
on-site Common Open Space required under the Specific Plan.
H. In accordance with the allocated affordable dwelling units described above, and in
connection with density bonus for the Property and the Parcel 2A Property granted to the City (as
the prior owner of those parcels) the City has received approval for a housing incentive
agreement required by Section 9142 of the Density Bonus Ordinance, which includes approval of
the following: (i) 225 dwelling units in the Project at the Property, of which all 225 units will be
reserved for Affordable Housing Units as follows: 88 Very Low Income Units, 73 Low Income
Units, and 64 Moderate Income Units; (ii) the concessions described in Recital G above.
I. Resolution No. CC requires that prior to recordation of the first final map
9-7
ry
including, conveyance map, or first building permit, whichever occurs first, the City (and Owner
as the successor in interest to the City pursuant to the Quitclaim Deed) is required to enter into a
Housing Agreement with Tustin to ensure implementation of the Affordable Housing
Requirements of the Specific Plan, the City's Density Bonus Ordinance, the City-approved
"Affordable Housing Plan, Density Bonus Application," the City's "Affordable Housing Policy",
compliance with California Health and Safety Code Section 33413(b)(2), and that the entire
Project remain a rental apartment project for the entire Term of this Housing Agreement.
J. Tustin and Owner enter into this Housing Agreement pursuant to and in
accordance with the Density Bonus Law and the Density Bonus Ordinance. This Housing
Agreement constitutes the housing incentive agreement required by Section 9142 of the Density
Bonus Ordinance. The City has determined that the provisions of this Housing Agreement
comply with the Specific Plan, the Density Bonus Ordinance, California Government Code
Section 65915, and California Health and Safety Code Sections 33334.3, 33413(b) and
33334.14, and that this Housing Agreement fully satisfies the above-mentioned ordinances and
State statutes.
K. Conditions of the DDA and the Entitlements require that Owner agree to enforce
certain affordable housing restrictions to ensure the affordability of the Affordable Housing
Units in the Project.
M
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
L. In consideration of Tustin's agreement to support the Project pursuant to Owner's
commitments under the Development Agreements and subject to the Special Restrictions and the
Entitlements, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Tustin and Owner now desire to enter into this Housing Agreement to
set forth their agreement regarding the affordable housing restrictions for the Project and to cause
said affordable housing restrictions to run with the land for the benefit of Tustin.
A G R,E E M E -N T
NOW, THEREFORE, Tustin and Owner hereby agree as follows:
1. Local. State and Federal Law. Owner shall carry out the construction of the
Project in conformity with the City Code, the Specific Plan, the Special Restrictions, and all
applicable Governmental Requirements.
2. Covenants Related to Affordable Housing. Owner, for itself and for all Successor
Owners, makes the agreements, representations, warranties and covenants set forth below in this
Section 2.
2.1. Construction of Affordable Units. Owner shall construct on the Property
a multi-family rental housing Project containing 225 dwelling units. The Project shall include 88
Very Low Income Units, 73 Low Income Units, and 64 Moderate Income Units to be rented to,
occupied by, or held available only for rental to Qualified Households at an Affordable Rent
subject to the occupancy restrictions contained in this Section 2.
2.2. Identification and Location of Affordable, Housing Units.
2.2.1. NO. Concentration .of Affordable Units. During the Qualified
Project Period, the Affordable Housing Units shall be located in various buildings and on various
floors of the buildings throughout the Project in a manner consistent with the requirements of
IRC Sections 42 and 143 and the TCAC Procedures so that the Affordable Housing Units are not
concentrated all on a few floors of a building or within a single building in the Project.
2.2.2. Affordable Housing Unit Types. During the first twelve months
of the Qualified Project Period, all Affordable Housing Units proposed to be leased by Owner
shall first be approved in writing by the Program Administrator as to location of the unit in the
Project to ensure compliance with Section 2.2.1.
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
M
2.2.3. Allocation of Affordable Unit Types. The Affordable Housing
Units shall be allocated among the units in the Project as follows:
Affordable Housing
Unit Types
Very Low
Income Units
Low Income
Units
Moderate Income
Units
Studio Units
0
0
0
1 Bedroom Units
30
25
23
2 Bedroom Units
46
38
33
3 Bedroom Units
12
10
8
Totals
88
73
64
2.3. Limitations on Tenants and Occupancy of Affordable Housing Units.
Owner, for itself and all Successor Owners, hereby covenants that the Affordable Housing Units
shall be rented to Qualified Households and in accordance with the following terms:
2.3.1. Owner may not charge or collect any Rent Consideration for an
Affordable Housing Unit in excess of an Affordable Rent for such Affordable Housing Unit.
2.3.2. Only one Qualified Household shall be permitted to occupy and
reside in an Affordable Housing Unit at any one time. The Affordable Housing Unit shall be
used as the principal residence of the adult members of the Qualified Household during the term
of any lease and for no other purpose. Neither Owner nor a Qualified Household may lease,
E-101
NOW
,1 1111
ME
sublease, or grant a license or any other right to any other persons to occupy the Affordable
Housing Unit, or permit persons who are not members of the one Qualified Household to occupy
the Affordable Housing Unit.
2.3.3. The number of persons permitted to occupy the Affordable
Housing Unit shall not exceed the occupancy permitted by law.
2.3.4. Owner shall use its best efforts to fill with a Qualified Household
each vacancy of the Affordable Housing Units as soon as possible following the date that an
Affordable Housing Unit becomes vacant so that at all times there are 225 Qualified Households
occupying 225 Affordable Units. The Parties acknowledge that Affordable Housing Units may
change their type from time to time (such as a Very Low Income Unit becoming a Low Income
Unit) in accordance with this Agreement. Owner is not required to maintain a particular
Affordable Housing Unit in a particular location in the Project at all times. However, Owner
shall use its best efforts to lease vacant Affordable Housing Units so that the number, income
level, and number of bedrooms in all of the Affordable Housing Units in the Project most closely
match the requirements in Section 2.2.3.
City of Tustin / St. Anton MINIM
Declaration of Affordable Housing Covenants
ra
LIEN
2.3.5. If multiple households apply to Owner to occupy a vacant
Affordable Housing Unit, and if such prospective tenants are all Qualified Households, then
Owner shall lease the Affordable Housing Unit to one such Qualified Household on a first-come,
first-served, and non-discriminatory basis, which may be determined by the interest list
maintained by Owner.
2.3.6. Owner shall notify the Program Administrator of any Affordable
Housing Unit that either (a) fails to be leased to a Qualified Household within thirty (30) days
after the issuance of a certificate of occupancy for the Affordable Housing Unit (the "Initial
Leasing Period"), or (b) becomes available as a result of a tenant vacating the premises.
2.3.7. During the Initial Leasing Period, Owner shall create and
maintain an "interest list" which includes all those potential tenants who have expressed an
interest in leasing an Affordable Housing Unit within the Project and who are Qualified
Households. The interest list shall be maintained with an order of priority based on a first-come,
first-priority basis. Pursuant to Section 2.9. 10, the interest list shall also designate whether a
Qualified Household is eligible under the City of Tustin's Local Workforce Housing Preference
Policy.
2.3.8. During the initial Leasing Period, to the extent permitted by law,
Owner shall first offer Affordable Housing Units to persons on the interest list and with any
preferential status that may be applicable pursuant to Section 2.9. 10 under the City of Tustin's
Local Workforce Housing Preference Policy.
2.3.9. Each Qualified Household which occupies an Affordable
Housing Units at the expiration of the Qualified Project Period and who remains a Qualified
Household for the Affordable Housing Unit it occupies on such date shall be permitted to
continue to occupy its Affordable Housing Unit for a period of one (1) year, beginning on the
first day after the expiration of the Qualified Project Period; provided that the annual rent
increase during such one (1) year period shall not exceed an amount equal to the sum of (i) the
rent for such unit on the last day of the Qualified Project Period plus (ii) an amount equal to the
greater of five percent (5%) or the increase that would have been permitted had the Qualified
Project Period not expired. Except as provided in the preceding sentence, upon the expiration of
the Qualified Project Period, the AtTordable Housing Units shall no longer be subject to the
provisions of this Section 2.
2.3.10. Owner shall deliver written notice to all occupants of the
Affordable Housing Units within the Project stating each rent increase, and stating that such rent
increase has been made pursuant to all applicable Governmental Requirements, including the
TCAC Procedures.
2.3.11. Prior to entering into a lease with a tenant for an Affordable
Housing Unit, Owner shall first make a determination that such tenant is a Qualified Household
in accordance with Section 2.9.
7
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.3.12. Voucher Holders. Owner shall not refuse to lease a Very Low
Income Unit or a Low Income Unit to a Qualified Household if such Qualified Household is a
holder of a certificate or voucher under 24 CFR Part 982 Section 8 Rental Certificate Program or
Section 8 Rental Voucher Program or to the holder of a comparable document evidencing
participation in a tenant -based assistance program, solely because of the status of the Qualified
Household as a holder of such certificate of family participation, rental voucher, or comparable
tenant -based assistance document.
2.4. Rental Rates and Changes to Rent.
2.4.1. Maximum Monthly Affordable Rent. Each Affordable Housing
Unit shall be leased to a Qualified Household for monthly Rent Consideration in an amount not
to exceed the applicable Maximum Monthly Affordable Rent for such Affordable Housing Unit,
calculated in accordance with the definition for "Maximum Monthly Affordable Rent" in
Exhibit "B" and as described in Section 2.4.2. The Maximum Monthly Affordable Rent for each
Affordable Housing Unit shall be calculated initially as of the date an Affordable Housing Unit
is leased to a tenant, and annually thereafter, but not later than the Outside Rent Calculation
Date. The "Outside Rent Calculation Date" for each calendar year means the date that is sixty
(60) days after the date on which the California Department of Housing and Community
Development publishes its list of maximum affordable rents (the "HCD List ") during such
calendar year. Owner shall deliver to the City their proposed list of Maximum Monthly
Affordable Rent for each Affordable Housing Unit in the Project (the "Proposed List ") no later
than the Outside Rent Calculation Date. The City shall have thirty (30) days after receipt of the
Proposed List to approve the Proposed List or to provide Owner with suggested corrections to
the Proposed List so that the Proposed List will comply with the maximum affordable rents
permitted under this Agreement. Owner shall modify the Proposed List and resubmit the same to
the City for approval to address any corrections suggested by the City. If the City fails to
approve or provide corrections to a Proposed List within thirty (30) days after receipt of the
same, then the Proposed List shall be deemed to be approved on the thirty -first day after receipt
by the City; but only to the extent the Proposed List otherwise complies with the maximum
affordable rents that would be permitted under the HCD List. Owner shall not charge Rent
Consideration for an Affordable Housing Unit that exceeds the applicable Maximum Monthly
Affordable Rent for such Affordable Housing Unit set forth on the most recently approved (or
deemed approved) Proposed List.
2.4.2. Adjustments to Rent. Owner shall, in accordance with
Section 2.9, re- examine the income of each Qualified Household that is a tenant living in an
Affordable Housing Unit at least annually to confirm that such tenant household remains a
Qualified Household. The Maximum Monthly Affordable Rent shall be recalculated by Owner
and reviewed and approved by the Program Administrator annually, and may change as changes
in the applicable gross rent amounts, the income adjustments, or the monthly allowance for
utilities and services warrant. Owner shall not impose on a tenant an increase in rent approved
by the Program Administrator if that increase is not permitted to be imposed under the lease
between Owner and the tenant. Owner shall provide not less than thirty (30) days prior written
8
City of Tustin t St. Anton
Declaration of Affordable Housing Covenants
notice to affected tenants before implementing any increase in rents. In establishing Maximum
Monthly Affordable Rent for each household, Owner shall not exceed the rental amounts
specified on the City Maximum Rent List, unless such list is not published on or before the date
that is 45 days following the publication of the HCD List, in which event Owner shall not exceed
the rental amounts specified on the HCD List.
2.5. Minimum Rents. Notwithstanding the other provisions of this Section 2,
the Maximum Monthly Affordable Rent for each Affordable Housing Unit shall not be'less than
the Maximum Monthly Affordable Rent for such Affordable Housing Unit that Owner would
have been permitted to charge for such Affordable Housing Unit on the date of this Housing
Agreement, assuming that such Affordable Housing Unit was occupied by a Qualified
Household of a size equal to one person per bedroom in such Affordable Housing Unit.
2.6. Rent Schedule and Utility Allowances. The Program Administrator shall
annually review and approve rents proposed by Owner for the Affordable Housing Units to
determine that Owner has properly applied the restrictions contained in this Section 2. , The
Program Administrator shall from time to time provide Owner with a schedule establishing the
monthly allowances for utilities and services to be paid by the Qualified Households who occupy
the Affordable Housing Units.
2.7. Increases in Tenant Income.
2.7.2. Over-Income Moderate Income Units. If, as a result of the
annual re-examination of incomes required pursuant to Section 2.9.5, Owner determines that the
income of a tenant in an Affordable Housing Unit exceeds the income to qualify as a Moderate
Income Household, then the dwelling unit occupied by such household shall remain an
Affordable Housing Unit until the next annual Income Verification. If, at the subsequent Income
we
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.7.1. Over-Income Units. If, as a result of the annual verification of
NONE?
incomes required pursuant to Section 2.9.5, Owner determines that a household occupying a
RE
r
Very Low Income Unit or a Low Income Unit has Income that exceeds 140% of the then
applicable income limit for such Unit, then such Unit shall be an "Over-income Unit". An
Over-Income Unit shall remain an Affordable Housing Unit; provided that such Unit shall be
deemed to be a Low Income Unit or a Moderate Income Unit, as applicable, based upon the
actual Income for such household at the time of the Income Verification. In such event, Owner
shall lease the next available Affordable Housing Unit in the Project (regardless of its previous
characterization) to a Qualified Household that is a Very Low Income Household if the Over-
Income Unit was previously a Very Low Income Unit, or to a Low Income Household if the
Over-Income Unit was previously a Low Income Unit. As an example of the foregoing and not
in limitation thereof, if a tenant is a Very Low Income Household when such tenant first leased a
Very Low Income Unit, and such tenant subsequently provides an Income Verification that
shows such tenant to have the income of a Moderate Income Household, then the Affordable
Housing Unit occupied by such tenant shall be a and shall thereafter be deemed to be a Moderate
Income Unit.
2.7.2. Over-Income Moderate Income Units. If, as a result of the
annual re-examination of incomes required pursuant to Section 2.9.5, Owner determines that the
income of a tenant in an Affordable Housing Unit exceeds the income to qualify as a Moderate
Income Household, then the dwelling unit occupied by such household shall remain an
Affordable Housing Unit until the next annual Income Verification. If, at the subsequent Income
we
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
Verification, the income of the tenant occupying the unit again does not qualify, then Owner KEEN
shall request that such tenant vacate the Unit within one hundred eighty (180) days after such
subsequent Income Verification date. If such tenant fails to consensually vacate the Unit within
such 180-day period, then Owner shall commence eviction proceedings and shall prosecute such
proceedings to completion, causing the tenant to vacate the Unit.
2.7.3. Vacant Units. At all times, Owner shall attempt to lease vacant
Affordable Housing Units so that the number, income level, and number of bedrooms in all of
the Affordable Housing Units in the Project most closely match the requirements in
Section 2.2.3. Notwithstanding anything in this Section 2.7 to the contrary, at all times during
the Term of this Housing Agreement, there shall never be fewer than 225 Affordable Housing
Units in the Project either (a) rented to Qualified Households in accordance with the
requirements of Section 2 or (b) available for rent pursuant to Section 2 and of a type and in a
location consistent with Section 2.2. A vacant Affordable Housing Unit will continue to be
treated as an Affordable Housing Unit provided that (1) reasonable attempts are made to rent the
dwelling unit, and (2) no other Units of comparable or smaller size in the building are rented to
persons who are not Qualified Households.
2.7.4. Allocation of Units. Notwithstanding the foregoing provisions, it
is the intent of this Housing Agreement that all of the Affordable Housing Units shall be
allocated among Moderate Income Units, Low Income Units, and Very Low Income Units and
positioned within the Project, as provided in Section 2.2. In the event the application of the
provisions in this Section 2 result in an allocation of Affordable Housing Units different from
that provided in Section 2,2.3, Owner shall lease the next available Affordable Housing Unit to a
51 IN
117tim-1-1
Qualified Household (whether Moderate Income Household, Low Income Household, or Very
Low Income Household, as the case may be), in order to correct the allocation.
2.8. Rental Agreements for Affordable Housing Units.
2.8.1. Rental Agreement.
2.8.1.1. The rental agreement for an Affordable Housing
Unit must be for an initial term of not less than six (6) months, unless the Program Administrator
provides prior written approval.
2.8.1.2. The rental agreement for an Affordable Housing
Unit shall prohibit the tenant from subleasing or licensing the premises and shall prohibit the
tenant from allowing any persons who are not members of the Qualified Household that is the
tenant from occupying the unit.
2.8.1.3. The rental agreement for an Affordable Housing
Unit shall include the right of Tustin to inspect the interior of the Affordable Housing Unit with
prior notice of not less than forty-eight (48) hours.
El
City of Tustin / St. Anton MINIM
Declaration of Affordable Housing Covenants
2.8.2. Tenant Protections The rental agreement for an Affordable
Housing Unit may not contain any of the following provisions:
2.8.2.1. Any agreement by the tenant to admit guilt or to a
judgment in favor of Owner in a lawsuit brought in connection with the lease.
2.8.2.2. Any agreement by the tenant that Owner may take,
hold, or sell personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an agreement
by the tenant concerning disposition of personal property remaining in the Unit after the tenant
has moved out of the Unit. Owner may dispose of such personal property in accordance with
applicable State law.
2.8.2.3. Any agreement by the tenant not to hold Owner or
its agents legally responsible for any action or failure to act, whether intentional or negligent.
2.8.2.4. Any agreement of the tenant that Owner may evict
the tenant or household members without notice to the tenant.
2.8.2.5. Any agreement by the tenant that Owner may evict
the tenant or household members without instituting a civil court proceeding in which the tenant
has the opportunity to present a defense, or before a court decision on the rights of the parties.
trial by jury. 2.8.2.6. Any agreement by the tenant to waive any right to a
2.8.2.7. Any agreement by the tenant to waive the tenant's
right to appeal, or to otherwise challenge in court, a court decision in connection with the lease.
2.8.2.8. Any agreement by the tenant to pay attorney's fees
or other legal costs even if the tenant wins in a court proceeding by Owner against the tenant.
The tenant, however, may be obligated to pay costs if the tenant loses.
2.8.3. Termination of Tenancy. Owner may not terminate the tenancy
or refuse to renew the lease of a Qualified Household except for violation of the terms and
conditions of the lease; for violation of applicable federal, State, or local law; or for other good
cause. Any termination or refusal to renew must be preceded by not less than sixty (60) days by
Owner's service upon the tenant of a written notice specifying the grounds for the action.
2.9• Oualified Households: Records and Rgports.
2.9.1. Certificate Regarding Affordability Commencement Date.
Within thirty (30) days after the Affordability Commencement Date has occurred, Owner shall
execute and deliver to the Program Administrator a copy of a certificate identifying the
Affordability Commencement Date and the last day of the Qualified Project Period, which
11
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
IN
I
certificate shall be in the form provided by Program Administrator or otherwise approved by L
MINE—
Program Administrator. Owner shall record a copy of such certificate against title to the
Property in the Official Records.
2.9.2. Verification of Income. Prior to considering a household as a
tenant for an Affordable Housing Unit, Owner shall obtain from the applicant a complete
verification of income qualification, on a form that contains all of the information required by
IRC Sections 42 and 143 and the TCAC Procedures or in some other manner approved in writing
by the Program Administrator (the "Veriflczflon of tnzonte"). Prior to the renewal or extension
of the term of any lease for an Affordable Housing Unit, Owner shall obtain from the Qualified
Household a current Verification of Income. The Parties agree that so long as the Verification of
Income is performed prior to the renewal or extension of the term of any lease, if Owner
complies with the income verification procedures established by TCAC from time to time as
contained in California Code of Regulations, Title 4, Division 17, Chapter 1, as amended from
time to time, and as set forth on the website (http://www.treasurer.ca.gov/ctcac/compliance.asp),
or any successor website or other published set of procedures, as may exist from time to time
(collectively, the "TCAC Procedures"), then Owner's compliance with the TCAC Procedures
shall be deemed to be compliance with the requirements in this Section 2.9.2.
2.9.3. Procedure. Owner shall make a diligent and good-faith effort to
verify that the information provided by an applicant in the Verification of Income is accurate by
taking the following steps, as a part of the verification process: (1) copy of driver's license or
Government issued identification card for all adult household members; (2) obtain pay stubs for
the most recent one-month period; (3) obtain income W-2 Wage and Earning Statements and tax
returns for the most recent tax year; (4) obtain proof of legal residency (unless requiring proof of
legal residency is prohibited by law); and (5) obtain any other information or documents that
may then be required under IRC Sections 42 and 143 and/or the TCAC Procedures. In the
alternative, if approved by the Program Administrator, the following may be submitted (a) proof
of residency (unless requiring proof of legal residency is prohibited by law) and (b) either (i)
income verification from the Social Security Administration and/or the California Department of
Social Services if the applicant receives assistance from either of such agencies; or (ii) if the
applicant is unemployed, does not have income tax returns or is otherwise unable to provide
other forms of verification as required above, obtain another form of independent verification
satisfactory to the Program Administrator. The Parties agree that so long as Owner obtains proof
of legal residency as part of the Income Verification, then Owner's additional compliance with
the TCAC Procedures shall be deemed to be compliance with the requirements in this
Section 2.9.3-, provided that if requiring proof of legal residency is prohibited by law, then
Owner's additional compliance with the TCAC Procedures alone shall be deemed to be
compliance with the requirements in this Section 2.9.3.
12
City of Tustin / St. Anton 101,
Declaration of Affordable Housing Covenants
IN
2.9.4. Qualified Household. A "Qualified Household" is any
household of persons that has completed the Verification of Income qualification and for which
Owner, in good-faith pursuant to Section 2.9.3, has confirmed that such household is either (a) a
Moderate Income Household if a potential tenant for a Moderate Income Unit, (b) a Low Income
Household if a potential tenant for a Low Income Unit, or (c) a Very Low Income Household if a
potential tenant for a Very Low Income Unit, in each case calculated using the definition of
Income set forth in Exhibit "B" to this Agreement.
2.9.5., Files. Owner shall obtain, complete and maintain on file
Verifications of Income qualification, from each Qualified Household that executes a lease for an
Affordable Housing Unit, including (i) a Verification of Income dated immediately prior to the
date of initial occupancy by such Qualified Household and (ii) thereafter, annual Verifications of
Income which must be dated as of June I st of each year, or such other date as may be mutually
agreed upon by the Program Administrator and Owner. Annual Verifications of Income shall be
obtained by Owner for each tenant occupying an Affordable Housing Unit not less than once in
every twelve-month period following such Qualified Tenant's occupancy of a unit in the Project.
2.9.6. Certificate of Continuing Program Compliance. A copy of the
most recent Verification of Income for Qualified Household for each occupied Affordable
Housing Unit shall be attached to the Certificate of Continuing Program Compliance, in the form
provided by Program Administrator or otherwise approved by Program Administrator, which is
to be filed with the Program Administrator no later than the fifteenth (15;x') day of each month
following the receipt by the Program Administrator of the Completion Certificate to and
including the month in which the Affordability Commencement Date has occurred. After the
Affordability Commencement Date, the Certificate of Continuing Program Compliance shall be
delivered by Owner to the Program Administrator no later than June I of each calendar year
during the Qualified Project Period.
2.9.7. Records. Owner will maintain complete and accurate records
pertaining to the Affordable Housing Units and will permit any duly authorized representative of
Tustin, without limitation, to inspect the books and records of Owner pertaining to any of the
following: (a) the occupancy of the Affordable Housing Units,; (b) the Verification of Income;
(c) the calculation of the Administrative Fee; and (d) the calculation of the Net Operating
Income.
29.8. Contents of Certificate. Owner will prepare and submit to the
Program Administrator no later than June I of each calendar year during the Qualified Project
Period, a Certificate of Continuing Program Compliance executed by Owner with the following
information:
29.8.1. The number of the dwelling units of the Project
which were occupied, pursuant to Section 2.1 above, by Qualified Households during such
period and such other tenant information as may be reasonably required as stated on the form of
the Certificate of Continuing Program Compliance acceptable to the Program Administrator; and
13
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.9.8.2. A statement that either (i) no uncured default has
occurred under this Housing Agreement or (ii) a default has occurred, in which event the
Certificate shall describe the nature of the default in detail and set forth the measures being taken
by Owner to remedy such default.
2.9.9. Lease Provisions. Each lease or rental agreement for an
Affordable Housing Unit shall contain a provision to the effect that Owner has relied on the
Verification of Income and supporting information supplied by the teftancin determining -
qualification for occupancy of the particular Affordable Housing Unit and that any material
misstatement in such verification (Whether or not intentional) will be cause for immediate
termination of such lease or rental agreement. Each such lease or rental agreement shall also
provide that the tenant's income is subject to annual verification in accordance with this
Section 2.9, and that, if Owner obtains a Verification of Income from any household and
determines that such household's income exceeds the income limit for a Moderate Income
Household, then such tenant's lease shall be subject to termination in accordance with
Section 2.7.2 on such prior notice as the Program Administrator deems reasonable or may be
subject to rent adjustment pursuant to Section 2.7.
2.9.10. Local Workforce Housing Preference Policy. To the extent
permitted by law, in marketing and renting units to Qualified Households, Owner shall establish
a priority system that ensures that prospective rental applicants who are currently employed in or
currently residing in the City of Tustin have priority over other applicants who do not currently
reside or are not employed in the City of Tustin (hereinafter referred to as the "Local Preference
Policy", adopted by the Tustin City Council on November 6, 2007). For a prospective tenant to ONE-
be granted priority in leasing an Affordable Housing Unit under the Local Preference Policy, the
applicant shall demonstrate to Owner a minimum of six months of current employment or
current residency in the City. Owner shall refer to the Local Preference Policy for detailed
information required to be submitted by Owner for verification of residency and local
employment and to ensure Owner's compliance with the Local Preference Policy.
2.10. Termination of Affordable Housing` Covenants. The provisions of this
Section 2 shall terminate in their entirety on the date that is 365 days after the last day of the
Qualified Project Period.
2.11. Payment of Fees and Tax Equivalent Payments.
2.11.1. Administrative Fee. From and after the Completion of
Construction, if there is a Property Tax Exemption in any Fiscal Year during the Tenn of this
Agreement, then on April I immediately following such Fiscal Year, Owner shall pay to the City
an administrative fee (the "Administrative Fee") in an amount equal to $7,853.00 (as such
amount will be increased as set forth below). The Administrative Fee shall increase each
calendar year by two percent (2%) and shall be payable in each year until the date that the
Property Tax Exemption ceases to apply to the Property.
14
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.11.2. Administrative Fee Payable from Net Operating Income. Owner
shall only be obligated to pay the Administrative Fee from Net Operating Income (defined
below). If the Net Operating Income in any calendar year is insufficient to allow Owner to pay
some or all of the then unpaid Administrative Fee, then the unpaid portion of the Administrative
Fee shall not be payable and shall not accrue or cumulate and Owner shall not be obligated to
pay such Administrative Fees out of future Net Operating Income.
2.11.3. Net Operating Income. "Net Operating Income" for purposes
of this Section 2.11 means Gross Revenues less Operating Expenses.
2.11.3.1. "Gross Revenu ' es" means all gross income and all
revenues of any kind from the Project in a calendar year, including without limitation, Rent
Consideration, late charges, vending machine income, commercial income (if any), proceeds of
business interruption insurance, and any other revenues of whatever kind or nature from the
Project; except that interest on security deposits and required reserves, and the proceeds of loans,
advances from any partner of Owner, refinancings, condemnation, insurance claims (other than
business interruption insurance), and partner capital contributions, shall not be considered Gross
Revenue.
2.11.3.2. "Operating Expenses" means actual, reasonable,
and customary costs, fees and expenses directly incurred, paid, and attributable to the operation,
maintenance and management of the Project in a calendar year, calculated on an accrual basis,
including: payment of any required financial obligation including but limited to debt service on
any loan or advance required under any agreement with Owner, painting, cleaning, repairs,
maintenance, alterations, landscaping, utilities, refuse removal, certificates, permits and licenses,
sewer charges, real and personal property taxes, assessments, insurance, security, advertising and
promotion, janitorial services, cleaning and building supplies, purchase, repair, servicing and
installation of appliances, equipment, fixtures and furnishings which are not paid from the capital
replacement reserves, air monitoring expenses (if applicable), property and partner management
fees, development fees, and fees and expenses of accountants, attorneys and other professionals,
and establishment and maintenance of any required reserves under the Loan Documents (or as
may be required by a qualified tax credit investor in Owner) and such reserves shall not exceed
2% of the applicable year's Gross Revenues. The Operating Expenses shall not in include non-
cash expenses such as depreciation or amortization or accrued principal and interest expense on
deferred payment debt or any capital expenditure that is part of the initial development costs of
the Project.
2.11.4. Pavment of Administrative Fee. The Administrative Fee shall be
payable to the City of Tustin, c/o the Office of the City of Tustin Finance Director, at 300
Centennial Way, Tustin, California 92780, or at such other place or places as the City from time
to time may designate by written notice to Owner.
15
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
3.1.1. In deeds:
"The grantee herein covenants by and for itself, its successors and assigns, and all Ellis!
persons claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color, creed, religion,
sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor
shall the grantee 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, subtenants, sublessees or vendees
in the land herein conveyed. The foregoing covenants shall tun with the land."
3.1.2. In leases:
"The lessee herein covenants by and for itself, its successors and assigns, and all persons
claiming under or through them, and this lease is made and accepted upon and subject to
the following conditions:
"That there shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry in the leasing, subleasing, renting, transferring, use,
11M
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.11.5. Interest on Late Administrative Fees. If the Administrative Fee
0_1
is not paid when due then Owner shall also pay to the City interest on the unpaid Administrative
Fee calculated at the rate of eight (8%) simple interest per annum, until paid.
2.11.6. Late Payment Penalty. If the Administrative Fee is not paid
when due, then Owner shall also pay to the City a penalty payment equal to ten percent (10%) of
the unpaid Administrative Fee; provided that this penalty shall not apply to unpaid
Administrative Fees that are no payable due to lack of Net Operating Income as described in
Section 2.11.2.
3. Non-Discrimination Covenants. Owner for itself and all Successor Owners,
hereby represents, warrants and covenants as follows:
3.1. Obligation to Refrain from Discrimination. There shall be no
discrimination against or segregation of any person or group of persons, on account of race,
color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or any portion
thereof, nor shall Owner itself or any person claiming under or through it (including any tenant)
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, subtenants, sublessees or
vendees of the Property or any portion thereof. All deeds, leases or contracts shall contain or be
subject to substantially the following non-discrimination or non-segregation clauses:
3.1.1. In deeds:
"The grantee herein covenants by and for itself, its successors and assigns, and all Ellis!
persons claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color, creed, religion,
sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor
shall the grantee 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, subtenants, sublessees or vendees
in the land herein conveyed. The foregoing covenants shall tun with the land."
3.1.2. In leases:
"The lessee herein covenants by and for itself, its successors and assigns, and all persons
claiming under or through them, and this lease is made and accepted upon and subject to
the following conditions:
"That there shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry in the leasing, subleasing, renting, transferring, use,
11M
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any
person claiming under or through it, establish or permit such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein
leased."
3,13. In contracts:
"There shall be no discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land, nor shall the transferee 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, subtenants, sublessees or vendees of the land."
4. Maintenance of the Protect. Owner and all Successor Owners shall maintain the
Property, at their sole cost, in accordance with the requirements of the Special Restrictions.
5. Sale or Transfer of the Project.
5.1. Limitations on Transfers. During the period (the "Initial Period"),
commencing on the date of this Agreement and ending on the later of (a) the date Owner
receives a Certificate of Compliance for the Project under the DDA or (b) the Affordability
Commencement Date, Owner shall not (except for "Permitted Transfers" (as such term is defined
in the DDA)) voluntarily sell, transfer or otherwise dispose of the Property, or any portion
thereof (other than for individual tenant use as contemplated hereunder), without (a) obtaining
the prior written consent of the Program Administrator and (b) having the Successor Owner
assume the Owner's obligations under this Housing Agreement with respect to that portion of the
Property acquired by the Successor Owner.
5.1.1. Reasonable Consent to Transfer. During the Initial Period, if
Owner requests the consent of the Program Administrator for a sale, transfer or disposition of the
Project, the Program Administrator's consent shall not be unreasonably withheld or delayed if
the following conditions are satisfied: (A) (1) Owner is not in default under this Agreement or
the purchaser or assignee undertakes to cure any default of the Owner to Program
Administrator's reasonable satisfaction; (2) the Program Administrator determines that the
operation of the Project by the transferee would comply with the provisions of this Agreement;
(3) either (a) the transferee or its property manager has at least three years' experience in the
ownership, operation and management of comparable rental housing projects, and at least one
year's experience in the ownership, operation and management of rental housing projects
containing below-market-rate units, without any record of material violations of discrimination
restrictions or other state or federal laws or regulations or local governmental requirements
applicable to such projects, or (b) the purchaser or assignee agrees to retain a property
17
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
IV]
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
management firm with the experience and record described in subclause (a) above, or (c) the
Noll-
transferring Owner or its management company will continue to manage the Project for at least
one year following such transfer and during such period will provide training to the transferee
and its manager in the responsibilities relating to the Affordable Housing Units; and (4) the
transferee does not have pending against it, and does not have a history of significant and
material building code violations or complaints concerning the maintenance, upkeep, operation,
and regulatory agreement compliance of any of its projects as identified by any local, state or
federal regulatory agencies; (B) the execution by the transferee of any document reasonably
requested by the City with respect to the assumption of the Owner's obligations under this
Agreement; (C) the delivery to the City of an opinion of the transferee's legal counsel to the
effect that this Agreement is valid, binding and enforceable obligations of the transferee, subject
to bankruptcy and other standard limitations affecting creditor's rights; and (D) the receipt by the
City of all fees and/or expenses then currently due and payable to the City under this Agreement.
5.1.2. Release of Owner Upon Transfer. During the Initial Period, the
written consent of the Program Administrator to any transfer of the Project shall constitute
conclusive evidence that the transfer is not in violation of this Section 5.1. If the approved
transferee as a Successor Owner assumes all of the Owner's obligations under this Housing
Agreement with respect to that portion of the Property acquired by the Successor Owner, then in
such case, the transferring Owner shall be fully released from its obligations hereunder to the
extent such obligations have been fully assumed in writing by the Successor Owner.
5.1.3. Permitted Transfers. During the Initial Period, Owner may make
Permitted Transfers without the Program Administrator's prior consent. The City acknowledges
Li
that a sale or exchange of 50% or more of the capital and profits interests in the Owner in any
twelve-month period will be treated for federal tax purposes as a change in ownership of the
Project at the time the 50% transfer occurs, but shall not be deemed a transfer under this Housing
Agreement if there is no Transfer of Control (as such term is defined in the DDA) of Owner as a
result of such transfer.
5.1.4. Termination of Limitations on Sale. The provisions of
Section 5.1 shall terminate in their entirety on the date that is one (1) day after the end of the
Initial Period. On such termination date for this Section 5. 1, all references to the DDA in this
Section 5. 1, shall be of no further force or effect.
5.2. Assignment of Obligations. If the Program Administrator approves the
sale of the Property, Owner shall cause the purchaser of the Property to assume in writing all of
the obligations of Owner under this Agreement pursuant to an assignment agreement approved
by the Program Administrator (the "Assignment Agreement "), and Owner and the purchaser
shall cause the Assignment Agreement to be recorded in the Official Records of the County of
Orange against the purchaser's portion of the Property. When the approved Assignment
Agreement is recorded as required, then Owner shall be released from the obligations of this
Agreement for that portion of the Property transferred in fee to the purchaser.
IV]
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
6. Effectiveness of Housing Agreement. This Housing Agreement and all and each
of the provisions hereof shall become effective upon its execution and delivery and shall remain
in full force and effect thereafter except as expressly provided herein. The provisions of this
Housing Agreement are intended to survive the expiration or termination of the Development
Agreements. The terms of this Housing Agreement to the contrary notwithstanding, the
requirements of this Housing Agreement, other than Section 2, shall be suspended and shall be of
no further force and effect during the period (the "Suspension- Period ") commencing on the
Involuntary Transfer Date (defined below) and ending on the Suspension End Date (defined
below). On the day after the Suspension Period, all of the requirements of this Housing
Agreement shall again apply to the Owner of the Property.
6.1. Involuntary Transfer Date. "Involuntary Transfer Date" means the date
on which any of the following occur: (i) Owner is prohibited by law from complying with this
Housing Agreement pursuant to a change in federal law or pursuant to new or modified
regulation by a federal agency that specifically prohibits the City from enforcing the material
terms of this Housing Agreement; (ii) substantially all of the Property is taken by a government
agency pursuant to the exercise of powers of eminent domain (in which event there will be no
Suspension End Date); (iii) a Permitted Mortgagee obtains title to the Property pursuant to
foreclosure, transfer of title by deed -in -lieu of foreclosure, or a similar event; provided that this
clause (iii) shall not include the purchase at a foreclosure sale by a third party that is not an
affiliate of the Permitted Mortgagee.
(11 6.2. Suspension End Date. "Suspension Ejad Date" means the date on which
1 '110 any of the following occur: (i) If the Involuntary Transfer Date is pursuant to clause (i) of
N
Is01 Section 61, then the date that the owner of the Property is no longer prohibited by law from
complying with this Housing Agreement; (iii) If the Involuntary Transfer Date is pursuant to
clause (iii) of Section 6. 1, then the date that the a Permitted Mortgagee conveys tide to the
Property to a third party that is not an affiliate of the Permitted Mortgagee.
6.3. Permitted Mortgagees. The obligation of Owner to obtain an Assignment
Agreement from any transferee shall not apply to any transfer of the Property to a Permitted
Mortgagee that obtains title to the Property pursuant to foreclosure, transfer of title by deed-in-
lieu of foreclosure, or a similar event; provided that any subsequent transfer by such Permitted
Mortgagee will require an Assignment Agreement from any subsequent transferee who obtain
title to the Property from the Permitted Mortgagee.
7. Covenants and Restrictions to Run with the Land.
7.1. Covenants That Run With the Land. This entire Housing Agreement,
including without limitation all of the agreements by the Owner and all covenants and
restrictions contained in this Housing Agreement are intended to be covenants running with the
land (including the entire Property), and shall, in any event, and without regard to technical
classification or designation, legal or otherwise, be, to the fullest extent permitted by law and
equity, binding for the benefit and in favor of, and enforceable by Tustin, and its successors and
11W,
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
W
assigns, against Owner and all Successor Owners, and any party in possession or occupancy of
said Property or any portion thereof. Without in any way limiting the foregoing, each of the
Parties shall execute and deliver at their own cost and expense, any and all additional papers,
documents, or instruments, and shall do any and all acts and things reasonably necessary or
appropriate in connection with the performance of their respective obligations hereunder in order
to carry out the intent and purposes of this Housing Agreement.
7.2. Tustin as Identified Beneficiary. In amplification and not in restriction of
the provisions set forth hereinabove, Owner intends and agrees that both the City and the
Authority shall each be deemed a beneficiary of the agreements, covenants and restrictions
herein both for and in its own right and also for the purposes of protecting the interests of the
community. All covenants and restrictions without regard to technical classification or
designation shall be binding for the benefit of both the City and the Authority, and such
covenants and restrictions shall run in favor of both the City and the Authority for the entire
period during which such covenants and restrictions 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 and restrictions relate. The City and the Authority shall each have the independent
right, in the event of any breach of this Housing Agreement or covenant or restriction herein, to
exercise all the rights and remedies, and to maintain any action at law or suit in equity or other
proper proceedings to enforce the curing of such breach of this Housing Agreement or covenants
or restrictions.
7.3. Modification of Housing Agreement Without the Consent of Tenants and
Mortgagees. The City and its successors and assigns, as the first party, and Owner and/or any
Successor Owners then owning any portion of the Property or any interest in the Project, as the
second parties, shall have the right upon written agreement signed by the first party and all of the
second parties then holding an interest in real property in the Property and the Project, to consent
and agree to changes in, or to eliminate in whole or in part, any of the terms or provisions in this
Housing Agreement without the consent of any tenant, lessee, easement holder, licensee,
mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having any
interest less than a fee in the Property or the Project.
7.4. No Third Party Beneficiaries. This Housing Agreement is not enforceable
by and does not run to the benefit of any person or entity other than Owner, the Successor
Owners, and both Tustin and the Authority and their respective successors and assigns. No
member of the public, no person or entity that is occupies and Affordable Housing Unit, no
adjacent landowner tenant that is
8. Burden and Benefit. Tustin and Owner hereby declare their understanding and
intent that all of the terms and provisions in this Housing Agreement are covenants and
restrictions that touch and concern the Property and that Owner's legal interest in the Property is
rendered less valuable thereby. Owner hereby further declares its understanding and intent that
the benefit of the covenants and restrictions that that touch and concern the Property are made for
the enhancement and enjoyment and use of the Project by Qualified Households who may be
20
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
µ
entitled to lease Affordable Housing Units under the terms of this Housing Agreement and that
this Housing Agreement furthers the public purposes for which the Development Agreements
were entered into with Owner.
9. Uniformity, Common Plan. The covenants, reservations and restrictions hereof
shall apply uniformly to the entire Property in order to establish and carry out a common plan for
the use, development and improvement of the Property.
10. Default Enforcement.
10.1. Default. "Event of Default" under this Housing Agreement means any of
the following:
10.1.1. A breach or default by Owner occurs under the Special
Restrictions;
10.1.2. A breach or default by Owner occurs under either of the
Development Agreements as it relates to the Property; or
10.1.3. Owner or any Successor Owner fails to perform fully any of its
obligations set forth in this Housing Agreement within thirty (30) days following receipt of
written notice regarding such other default; provided, that if such failure is capable of being
remedied but not capable of being remedied within thirty (30) days, then the defaulting party
ran
shall have an additional period of time within which to remedy such failure, not in any event to
exceed sixty (60) days. The failure of the Program Administrator to notify Owner or a Successor
Owner of any such default shall not be deemed a waiver of the default, and Tustin shall have no
obligation to notify the defaulting party of the default.
10,2. Remedies. Following an Event of Default, the City and the Authority, and
each of them, may pursue all of their respective rights and remedies set forth in the Special
Restrictions, the Development Agreements (if the same are still in effect on the date of such
Event of Default), or this Housing Agreement or otherwise available at law, in equity or by
statute. The City's and the Authority's respective rights and remedies shall be cumulative and no
one of such rights and remedies shall be exclusive of any of the others, or of any right or remedy
at law or in equity which the City or the Authority, as applicable, might otherwise have by virtue
under this Agreement and the exercise of one such right or remedy by the City or the Authority,
as applicable, shall not impair such Party's standing to exercise any other right or remedy. The
Parties agree that this Housing Agreement may be specifically enforced.
10.2.1. Delincjuencv Notice, In the event of any breach or default by
Owner or any Successor Owner under any mortgage or deed of trust, the City shall have the
right, but not the obligation, to perform the unperformed obligations at the expense of Owner,
and all expenditures by the City to cure such default shall accrue interest from the date such
sums are actually spent by the City at a default rate equal to the then "prime rate" specified by
Wells Fargo Bank or its successor plus three percent (3%), but not in excess of such rate as may
21
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
10.2.2. Non-Complying Affordable Housing Units. The Program
M11
be permitted under applicable law. Payment shall be made by Owner to the City within thirty
(30) days after written request thereof If payment is not made by Owner within thirty (30) days
after such demand is made then the City shall have the right to add such amount, to any sums
then due or thereafter becoming due from Owner under the this Housing Agreement. In
addition, the amount due to the City shall constitute a lien and charge upon the fee interest of
Owner to Property and the City shall have the right to record a notice (a "Delinquency Notice")
against the Property, which states the amount due from Owner. The aforesaid lien shall attach
immediately upon recordation of the Delinquency Notice.- A copy of the Delinquency Notice
shall be delivered to Owner pursuant to Section 14.4. The lien may be foreclosed by appropriate
action in court or in the manner prescribed by law. Upon such event, Owner shall be required to
pay all attorney fees and costs and expenses of the City in connection with the preparation,
recordation and foreclosure of such lien. Any such lien shall be prior to all encumbrances, liens,
or charges on the Property except (a) taxes which are by law prior thereto; (b) the rights of
tenants pursuant to bona fide leases; and (c) any permitted mortgage and advances thereunder
made in good faith and for value and recorded prior to the Delinquency Notice. The transfer of
the Property shall not affect the aforesaid lien.
10.2.2. Non-Complying Affordable Housing Units. The Program
Administrator may make a determination of Owner's breach of its obligations regarding leasing
of the Affordable Housing Units based on information provided in the Certificate of Continuing
Program Compliance or determined by Tustin in its reasonable discretion based on information
otherwise available to it. In addition to and without limitation of any other rights and remedies
set forth in this Housing Agreement or otherwise available to any party legally entitled to enforce
this Housing Agreement, if a Default with respect to Section 2 occurs resulting in an Affordable
Housing Unit becoming a Non-Complying Unit, and (i) if the Default is not cured within sixty
(60) days after notice from Tustin to Owner, or (ii) if such Default cannot reasonably be cured
within the sixty (60) day period and Owner has not commenced the curing of such Default, or if
Owner is not otherwise diligently prosecuting such cure to completion, then, with respect to such
Non - Complying Unit, Owner shall pay to the City the "Compliance Fee" (defined below) for the
"Period of Non-Compliance" (defined below) regarding such Non-Complying Unit. Owner shall
pay the Compliance Fee for the Non-Complying Unit on the fifteenth (15' fi ) day of the calendar
month immediately following the end of the Period of Non-Compliance for such Non-
complying Unit.
(a) "Compliance Fee" for a Non-Complying Unit means an
amount equal to (a) twenty-five percent (25%) multiplied by (b) the Rent Consideration payable
by the tenant of the Non-Complying Unit under its lease for the entire Period of Non-
Compliance.
(b) "Non-Compliance Period" for a Non-Complying Unit
means the period commencing on the date that is sixty-one (61) days after notice from Tustin to
Owner pursuant to this Section 10.2.2, and ending on the date that is the earlier of (i) the date
that Owner cures the Default that resulted in the Non-Complying Unit or (ii) the date that the
tenant of the Non-Complying Unit vacates the Non-Complying Unit. Owner shall provide
22
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
Tustin with reasonable evidence of the date that either (i) Owner cures the Default that resulted
in the Non-Complying Unit or (ii) the tenant of the Non-Complying Unit vacates the Non-
Complying Unit, as applicable.
10.3. Lien of Mortgage. No breach of any of the provisions of this Housing
Agreement shall impair, defeat or render invalid the lien of any Mortgage made in good faith and
for value encumbering the Property or Project or any portion thereof.
10.4. Obligation of Owner During Default. The Owner shall remain liable
under this Housing Agreement for any breach or default of this Housing Agreement that occurs
or is alleged to have occurred during the period that such Owner owned all or any part of the
Project, and such liability shall not be released or waived for any transfer of any portion of the
Project to a Successor Owner.
11. Administration, Recording and Filing.
11.1. Administration. The administration of this Housing Agreement by the
City and the Authority shall be delegated by the City to the Authority and to the Program
Administrator. The Program Administrator shall have the authority to act on behalf of the City
and the Authority for all purposes to act under this Housing Agreement and provide all
approvals, notices, consents and interpretations that may be required under this Housing
Agreement from either the City or the Authority or both; provided that the Program
Administrator shall not have the authority to modify or amend this Housing Agreement.
MEMBER 11.2. Recording. Owner shall cause this Housing Agreement, and all
1-10-
amendments and supplements hereto and thereto, to be recorded and filed in the Official Records
and in such other places as the Program Administrator may reasonably request. Owner shall pay
all fees and charges incurred in connection with any such recording. Written evidence of the
recorded Housing Agreement, a conformed copy, shall be provided to the Program
Administrator.
12. Indemnification. Owner shall defend, indemnify and hold harmless Tustin and
their respective officers, officials, agents, employees, representatives, and volunteers from and
against all loss, damage, costs, expenses, liability, claim or judgment relating in any manner to
Owner performance under this Agreement, except to the extent cause by the gross negligence or
willful misconduct of Tustin.
13. Limitation of Liability. Notwithstanding any other provision or obligation to the
contrary contained in this Housing Agreement: (i) the liability of Owner under this Housing
Agreement to any person or entity, including, but not limited to, Tustin is limited to the Owner's
interest in the Property and the Project, and such persons and entities shall look exclusively to
the Property and the Project for satisfaction of any claim arising under this Agreement, and may
also look to such other security as may from time to time be given for the payment of obligations
arising out of this Housing Agreement or any other agreement securing the obligations of the
23
City of Tustin / St, Anton
Declaration of Affordable Housing Covenants
W
Owner under this Housing Agreement; and (ii) from and after the date of this Housing
Agreement, no deficiency or other personal judgment for monetary damages shall be rendered
against Owner, the assets of Owner (other than Owner's interest in the Property and the Project),
or against Owner's partners, members, successors, transferees or assigns or against each their
respective officers, directors, employees, partners, agents, heirs and personal representatives, as
the case may be, in any action or proceeding arising out of this Housing Agreement or arising out
of any other agreements securing the obligations of Owner under this Housing Agreement, or
any judgment, order or decree rendered pursuant to any such action or proceeding.
14. Miscellaneous.
14.1. Governing Law. This Housing Agreement shall be governed by,
interpreted under, construed and enforced in accordance with the laws of the State of California,
without giving effect to any choice of law provisions.
14.2. Amendments This Agreement shall be amended only by written
instrument that (a) is executed by (i) the City and its successors and assigns and the Authority
and its successors and assigns, as the first parties, and (ii) Owner and/or any Successor Owners
then owning any portion of the Property or any interest in the Project, as the second parties;
provided such instrument is signed by the first party and all of the second parties then holding an
interest in real property in the Property and the Project, and (b) is duly recorded in the Official
Records. Following its approval by Tustin, this Agreement shall be administered by the Program
Administrator. Except where the terms of this Agreement expressly require the approval of a
by City the taking by the City, any matter to be approved by Tustin
matter the or of any action
shall be deemed approved, and any action to be taken by Tustin shall be deemed taken, upon the
written approval by the Program Administrator (or designee). The Program Administrator or
designee shall have the authority to issue interpretations with respect to this Agreement and to
determine whether any action requires the approval of the City Council.
14.3. Waiver. No waiver of any provision or consent to any action under this
Housing Agreement shall constitute a waiver of any other provision or consent to any other
action, whether or not similar. No waiver or consent shall constitute a continuing waiver or
consent or commit a party to provide a waiver in the future except to the extent specifically set
forth in writing. Any waiver given by a party shall be null and void if the party requesting such
waiver has not provided a full and complete disclosure of all material facts relevant to the waiver
requested.
14.4. Notices. All notices, demands, consents, requests and other
communications required or permitted to be given under this Housing Agreement shall be in
writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the
other party; (b) five (5) days after such notice has been sent by United States mail via certified
mail, return receipt requested, postage prepaid, and addressed to the other party as set forth
below; or (c) the two (2) days after such notice has been deposited with a national overnight
delivery service reasonably approved by the parties (Federal Express, UPS and Airborne Express
24
City of Tustin / St. Anton MIM
Declaration of Affordable Housing Covenants
ONE
1-111-110
are deemed approved by the parties), postage prepaid, addressed to the party to whom notice is
being sent as set forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service provider. Unless
otherwise provided in writing, all notices hereunder shall be addressed as follows:
Owner: Anton Legacy Tustin L.P.
c/o St. Anton Partners
18011 Street, Suite 200
Sacramento, CA 95811
Attention: Steven L. Eggert
Fax: (916) 444-9843
Email: sle@antonllc.com
With a copy to:
Cox Castle Nicholson LLP
555 California Street, 10th Floor
San Francisco, CA 94104
Attention: Stephen C. Ryan
Fax: (415) 262-5199
Email: sryan@coxcastle.com
City: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: Tustin Housing Authority
With copy to:
David Kendig
City Attorney
Woodruff, Spradlin & Smart
555 Anton Blvd,
Suite 1200
Costa Mesa, California 92626
14.5. Severability. Any provision of this Housing Agreement that is deemed to
be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be
ineffective to the extent of the invalidity or unenforceability of such provision and shall be
deemed stricken from this Housing Agreement. Any stricken provision shall not affect the
legality, enforceability or validity of the remainder of this Housing Agreement. If any provision
or part thereof of this Housing Agreement is stricken in accordance with the provisions of this
Section, then the stricken provision shall be replaced, to the extent possible, with a legal,
25
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is
legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
14.6. Authority of Signatories to Housing Agreement. Each person executing
this Housing Agreement represents and warrants that he or she is duly authorized and has legal
capacity to execute and deliver this Housing Agreement on behalf of the parties for which
execution is made. Each party represents and warrants to the other that the execution of this
Housing Agreement and the performance of such party's obligations hereunder have been duly
authorized and that the agreement is a valid and legal agreement binding on such party and
enforceable in accordance with its terms.
14.7. Consent to Jurisdiction. The parties hereto agree that all actions or
proceedings arising in connection with this Housing Agreement shall be tried and litigated
exclusively in the state and federal courts located in the County of Orange, State of California.
This choice of venue is intended by the parties to be mandatory and not permissive in nature,
thereby precluding the possibility of litigation between or among the parties with respect to or
arising out of this Housing Agreement in any jurisdiction other than that specified in this Section.
Each Party waives any right that it may have to assert the doctrine forum non conveniens or
similar doctrine or to object to venue with respect to any proceeding brought in accordance with
this section, and stipulates that the state and federal courts located in the County of Orange, State
of California, shall have in personam jurisdiction and venue over each of them for the purpose of
litigating any dispute, controversy or proceeding arising out of this Housing Agreement. Each
Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any
action against it as contemplated by this section by means of registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices as set forth in this
Housing Agreement and in the manner set forth in the section of this Housing Agreement
pertaining to notice. Any final judgment rendered against the party in any action or proceeding
shall be conclusive as to the subject of such final judgment and may be enforced in other
jurisdictions in any manner provided by law.
14.8. Time Is of the Essence. Time is of the essence in this Housing
Agreement, and failure to timely comply with provisions of this Housing Agreement shall be a
breach under this Housing Agreement.
14.9. Attorneys' Fees. If any Party files an action or brings any proceeding
against the other Party arising from this Housing Agreement, the prevailing party shall be
entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys'
fees and costs to be fixed by the court. A Party not entitled to recover its costs shall not recover
attorneys' fees. No sum for attorneys' fees shall be included in calculating the amount of a
judgment for purposes of deciding whether a Party is entitled to its costs or attorneys' fees.
14.10. Recitals. The recitals set forth at the beginning of this Housing
Agreement of any matters or facts shall be conclusive proof of the truthfulness thereof and the
92
City of Tustin / St. Anton M
Declaration of Affordable Housing Covenants
IM
WINE:
terms and conditions set forth in the recitals, if any, shall be deemed a part of this Housing
Agreement.
14.11. Exhibits. All Exhibits and Schedules attached to this Housing
Agreement are hereby incorporated by this reference and are made a part of this Housing
Agreement as if fully set forth herein.
14.12. Captions. All captions, titles or headings of the articles, sections,
paragraphs or subparagraphs of this Housing Agreement are inserted solely as a matter of
convenience of the parties hereto, and for reference, shall not be deemed to be a part of this
Housing Agreement, and shall not define, limit, extend or describe the scope of this Housing
Agreement nor be used or construed in the interpretation or determination of the validity of this
Housing Agreement or any provision hereof.
14.13. Counterparts. This Housing Agreement may be executed in
counterparts, and all such counterparts when taken together shall constitute a single agreement.
<<<< Signature Page Follows >>>>
FIN
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
OEM,
IN WITNESS WHEREOF, the City, the Authority, and Owner have executed this
Housing Agreement by duly authorized representatives, all as of the date first written above.
Dated:
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM
By:
David Kendig, City Attorney
By:
Amy E. Freilich
Special Tustin Counsel
CITY OF TUSTIN:
Jeffrey C. Parker, City Manager
TUSTIN HOUSING AUTHORITY
LI-A
Jeffrey C. Parker
Executive Director
ANTON LEGACY TUSTIN L.P.,
a California limited partnership
By: _
Name:
Title:
W-1
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
FEE
State of California
ss.
County of Los Angeles
On — 1 2012 before me,
(Insert natne of Notary Public and title)
personally appeared ,
proved to me on the basis of satisfactory evidence to be the person whose name is subcribed to
the within instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
(Seal)
M
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
LEGAL DESCRIPTION OF PROPERTY
That certain real property located in the City of Tustin, County of Orange, State of
California, and legally described as follows:
Lots 20, MMM, NNN, and PPP of Tract No. 17404 in the City of Tustin, County of Orange,
State of California as shown on a map filed in Book 907, Page 6, Official Records of Orange
County, California.
MEE
W
TOR"ACT N(03". 17404
IN THE CITY OF TUSTIN, COUNTY • ORANGE
STATE OF CALIFORNIA
RM
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
or
11 MIMI,
I
GLOSSARY OF DEFINED TERMS
For purposes of this Housing Agreement, the following initially capitalized terms shall
mean the following:
"Act7'means Chapter 8 (commencing with Section 33750) of Part I of Division 24 of the
Health and Safety Code of the State of California, as amended.
"Affordability Commencement Date" means the date on which both of the following
have occurred: (a) Owner has received a final certificate of occupancy for the entire Project and
(b) at least 128 dwelling units, including 128 Affordable Housing Units have been leased to
Qualified Households and are occupied by Qualified Households.
"Affordable Housing Units" means the following dwelling units at the Project to be
rented to, occupied by or held available for the Very Low Income Households, Low Income
Households, and Moderate Income Households, as applicable, identified below, in each case
leased to a Qualified Household at not more than the Monthly Affordable Rent as described in
Section 3 in this Housing Agreement applicable to such restricted units:
Type of Unit
Number of Units
—Required
Very Low Income Units
88
Low Income Units
73
Moderate Income Units
64
Total Affordable Housing Units
225
"Affordable Rent" means for any Affordable Housing Unit, monthly R6ftt Cdn�idefation
payable by the tenant that does not exceed the Maximum Monthly Affordable Rent applicable to
that Affordable Housing Unit.
"Administrative Fee" has the meaning set forth in Section 2.11.1.
"Assignment Agreement" has the meaning set forth in Section 5.2.
"Authority" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
"Base Unit Count" has the meaning set forth in Recital G. � I — I
"Certificate of Continuing Program Compliance" means the annual report'of,
occupancy for the Affordable Housing Units including the Verification of Income provided by
Owner to Agency as described in Section 2.9.6 hereof or such other form as may be prescribed
by the Agency.
Exhibit B — page I
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
```:-
"City" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
Owner.
"City Code' has the meaning set forth in Recital D.
"City Maximum Rent List" has the meaning set forth in Section 2.4.1.
"Completion Certificate" means the notice of completion of construction filed by
"Completion of Construction" has the meaning set forth in Section 4.3.1.
"Density Bonus Law" has the meaning set forth in Recital D.
"Density Bonus Ordinance" has the meaning set forth in Recital D.
"DA" has the meaning set forth in Recital F.
"DDA" has the meaning set forth in Recital A.
"Delinquency Notice" has the meaning set forth in Section 11.2.1.
"Development Agreements" has the meaning set forth in Recital F.
"Entitlements" has the meaning set forth in Recital D.
"Event of Default" has the meaning set forth in Section 11.1.
"Fiscal Year" means the property tax year for the State of California from July I until
the following June 30, as such fiscal year may be changed from time to time by the State of
California.
"Gross Income" has the meaning for 'gross income' that is defined by California Code
of Regulations Title 25, §6914 as the anticipated Income of a person or family for the twelve-
month period following the date of determination of Income. To make the projection, "a
`snapshot' of the household's current circumstances is used to project future Income. The
circumstances on the date of measurement should be assumed to continue for the next 12 months
unless there is verifiable evidence to the contrary.
"Gross Revenue" has the meaning set forth in Section 2.11.3.1.
"HCD List" has the meaning set forth in Section 2.4.1.
Exhibit B — page 2
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
WIN
"Income" means 'Income,' as defined by California Code of Regulations Title 25,
§6914, and shall include, but not be limited to the following:
I ) The gross amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses;
2) The net-income from-operation of a business or pro&ssion or from rental or real or
personal property (for this purpose, expenditures for business expansion or
amortization of capital indebtedness shall not be deducted to determine the net
income from a business);
3) Interest and dividends;
4) The full amount of periodic payments received from social security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits and other
similar types of periodic receipts;
5) Payments in lieu of earnings, such as unemployment and disability compensation,
worker's compensation and severance pay (but see subdivision (b)(3));
6) Public Assistance. If the public assistance payment includes an amount specifically
designated for shelter and utilities which is subject to adjustment by the public
assistance agency in accordance with the actual cost of shelter and utilities, the
amount of public assistance income to be included as income shall consist of:
a) The amount of the allowance or grant exclusive of the amount specifically
designated for shelter and utilities, plus
b) The maximum amount which the public assistance agency could in fact allow
for the family for shelter and utilities,
7) Periodic and determinable allowances such as alimony and child support payments,
and regular contributions or gifts received from persons not residing in the dwelling;
and
8) All regular pay, special pay and allowances of a member of the Armed Forces
(whether or not living in the dwelling) who is head of the family or spouse (but see
subdivision (b)(5)).
"Income" shall not include the following:
I ) Casual, sporadic and irregular gifts (includes casual, sporadic and irregular income
under this exclusion);
2) Amounts which are specifically for or in reimbursement of the cost of medical
expenses;
3) Lump-sum additions to family assets, such as inheritances, insurance payments
(including payments under health and accident insurance and worker's
compensation), capital gains and settlement for personal or property losses;
4) Amounts of educational scholarships paid directly to the student or to the educational
institution, and amounts paid by the government to a veteran for use in meeting the
costs of tuition, fees, books and equipment. Any amounts of such scholarships, or
payments to veterans not used for the above purposes that are available for
subsistence are included in income;
Exhibit B — page 3
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
"Involuntary Transfer Date" has the meaning set forth in Section 7.1.
"Improvements" means all of the buildings, structures, parking, fixtures, site
improvements (including landscaping and hardscaping), amenities and facilities constructed or
installed on the Property, comprising the constructed Project, as more particularly set forth in the
Development Agreements and included in Approved Plans (and in the Scope of Development).
"Initial Leasing Period" has the meaning set forth in Section 2.3.6.
"IRC Sections 42 and 143" means Sections 42 and 143 of the Internal Revenue Code of
1986 as amended, and any regulations promulgated thereunder.
"Local Preference Policy" has the meaning set forth in Section 2.9.10.
"Low Income Household" means a household of individuals whose collective annual
Gross Incomes do not exceed eighty percent (80%) of the annual Orange County Median
Income, with adjustments for smaller and larger families.
"Low Income Units" means the dwelling units in the Project, if any, required to be
rented to, occupied by, or held available for Low Income Households in accordance with this
Housing Agreement.
"Mandatory Density Bonus" has the meaning set forth in Recital G.
Exhibit B — page 4
City of Tustin / St. Anton =10011
Declaration of Affordable Housing Covenants
V Zr4,
MEMO—
WIN
5) The special pay to a serviceman head of a family away from home and exposed to
FIN
hostile fire;
6) Relocation payments made pursuant to federal, state, or local relocation law;
7) Foster child care payments;
8) The value of coupon allotments for the purchase of food pursuant to the Food Stamp
Act of 1964 which is in excess of the amount actually charged the eligible household;
and
9) Payments received pursuant to participation in the following volunteer programs
under the ACTION Agency:
a. National Volunteer Antipoverty Programs which include VISTA, Service
Learning Programs and Special Volunteer Programs.
b. National Older American Volunteer Programs for persons aged 60 and over
which include Retired Senior Volunteer Programs, Foster Grandparent
Program, Older American Community Services Program, and National
Volunteer Program to Assist Small Business Experience, Service Corps of
Retired Executive (SCORE) and Active Corps of Executives (ACE).
"Involuntary Transfer Date" has the meaning set forth in Section 7.1.
"Improvements" means all of the buildings, structures, parking, fixtures, site
improvements (including landscaping and hardscaping), amenities and facilities constructed or
installed on the Property, comprising the constructed Project, as more particularly set forth in the
Development Agreements and included in Approved Plans (and in the Scope of Development).
"Initial Leasing Period" has the meaning set forth in Section 2.3.6.
"IRC Sections 42 and 143" means Sections 42 and 143 of the Internal Revenue Code of
1986 as amended, and any regulations promulgated thereunder.
"Local Preference Policy" has the meaning set forth in Section 2.9.10.
"Low Income Household" means a household of individuals whose collective annual
Gross Incomes do not exceed eighty percent (80%) of the annual Orange County Median
Income, with adjustments for smaller and larger families.
"Low Income Units" means the dwelling units in the Project, if any, required to be
rented to, occupied by, or held available for Low Income Households in accordance with this
Housing Agreement.
"Mandatory Density Bonus" has the meaning set forth in Recital G.
Exhibit B — page 4
City of Tustin / St. Anton =10011
Declaration of Affordable Housing Covenants
V Zr4,
"Maximum Monthly Affordable Rent" means for any Affordable Housing Unit, tht
maximum monthly Rent Consideration payable by the tenant under the lease that does not
exceed the following: (a) with respect to Very Low Income Units, the Annual Maximum Very
Low Income Rent for a Very Low Income Household (calculated in accordance with the
requirements below) divided by twelve (12) as specifically applicable to the particular Qualified
Household that is the tenant, (b) with respect to Low Income Units, the Annual Maximum Low
Income Rent for a Low Income Household (calculated in accordance with the requirements
below) divided by twelve (12), as specifically applicable to the particular Qualified Household
that is the tenant, and (c) with respect to Moderate Income Units, the Annual Maximum
Moderate Income Rent for a Moderate Income Household (calculated in accordance with the
requirements below) divided by twelve (12), as specifically applicable to the particular Qualified
Household that is the tenant. The applicable Annual Maximum Rent for a particular Qualified
Household shall take into account and include a reasonable allowance for utilities and shall
otherwise be an amount not in excess of the following:
For "Moderate Income Units," as more particularly defined in Health and Safety Code
Section 50053 (b)(4), and as generally described herein, the "Annual Maximum
Moderate Income Rent" shall be equal to the product obtained by multiplying (i) thirty
percent (30%) by (ii) one hundred and ten percent (110%) of the annual Orange County
Median Income adjusted for family size appropriate for the units, including a reasonable
utility allowance. Notwithstanding the foregoing, in accordance with Health and Safety
Code Section 50053 (b)(4), the City has determined and hereby agrees that, for a
Moderate Income Household with annual gross incomes that exceed one hundred and ten
percent (110%) of the annual Orange County Median Income, adjusted for family size
appropriate for the unit, the Annual Maximum Moderate Income Rent shall be calculated
as not to exceed the product obtained by multiplying (i) thirty percent (30%) by (ii) one
hundred and twenty percent (120%) of the annual Orange County Median Income,
adjusted for family size appropriate for the units, including a reasonable utility allowance.
For "Low Income Units," as more particularly defined in Health and Safety Code
Section 50053(b)(3), and as generally described herein, the "Annual Maximum Low
Income Rent" shall be equal to the product obtained by multiplying (i) thirty•etcetit
(30%) by (ii) sixty percent (60%) of the annual Orange County Median Income adjusted
for family size appropriate for the units, including a reasonable utility allowance.
For "Very Low Income Units," as more particularly defined in Health and Safety Code
Section 50053(b)(2), and as generally described herein, the "Annual Maximum Very
Low Income Rent" shall be equal to the product obtained by multiplying (i) thirty '
percent (30%) by (ii) fifty percent (50%) of the annual Orange County Median Income
adjusted for family size appropriate for the units, including a reasonable utility allowance.
"Moderate Income Household" means a household of individuals whose collective,
annual Gross Incomes do not exceed one hundred and twenty percent (120%) of the annual
Orange County Median Income, with adjustments for smaller and larger families.
Exhibit B — page 5
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
"Moderate Income Units" means the dwelling units in the Project, if any, required to be Film
rented to, occupied by, or held available for Moderate Income Households in accordance with
this Housing Agreement.
"Net Operating Income" has the meaning set forth in Section 2.11.3.
"New Status Unit" has the meaning set forth in Section 2.7.1.
"Non-Complying Units" shall mean an Affordable Housing Unit which is occupied
and/or leased in violation of Section 2 of this Housing Agreement; provided that an Affordable
Housing Unit that is leased to a Qualified Household at the time of the lease shall only be
deemed to be a Non-Complying Unit solely as a result of the Qualified Household losing income
eligibility between certification dates in accordance with the terms of Section 2.7.2.
"Official Record" has the meaning set forth in Recital B.
"Operating Expenses" has the meaning set forth in Section 2.11.3.2.
"Orange County Median Income" means the median family income for the Orange
County Primary Metropolitan Statistical Area as most recently established by official annual
publication of the Federal Department of Housing and Urban Development as published,
modified and released by the State Department of Housing and Community Development,
adjusted for household size.
"Outside Rent Calculation Date" has the meaning set forth in Section 2.4.1.
"Owner" means the owner of fee title to all or any portion of the Development Parcel,
which as of the Effective Date is Anton Legacy Tustin L.P., a California limited partnership, and
each Successor Owner.
"Parcel 2A Property" has the meaning set forth in Recital D.
"Party" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
"Permitted Mortgage" means Owner's interim and permanent financing loan(s) for
acquisition, development, and construction of the Project, secured by a deed of trust recorded
against the Property, as may exist on the date of this Agreement or as may otherwise be allowed
by the DDA and as may be approved by the City (if such approval is required under the terms of
the DDA).
"Permitted Mortgagee" means the lender under a Permitted Mortgage.
"Permitted Transfer" has the meaning set forth in Section 5.1.
Exhibit B — page 6
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
"Program Administrator" means the City Manager or a Tustin Housing Authority staff
member designated by the Authority to act as the program administrator under this Housing
Agreement.
"Project" means the Property and the Improvements, together with any other personal
property owned by Owner and located on, or used in connection with, the Improvements.
"Property" means the real property legally described on Exhibit "A", which is attached
hereto and by this reference incorporated herein, and all rights and appurtenances thereunto
appertaining.
"Property Tax Exemption" means the Owner of the Property is exempt from the 1
obligation to pay some or all of the property taxes on the Property that would be payable by an
owner without any such exemption.
"Provider" has the meaning set forth in Section 11.2.2.
"Qualified Household" has the meaning set forth in Section 2.9,4.
"Qualified Project Period" means the period beginning on the Affordability
Commencement Date and ending on the date which is fifty-five (55) years after the Affordability
Commencement Date.
F
L
"Rent Consideration" means all consideration actually
lly paid by a tenant to the landlord
RONNIE,`
under a lease for housing services and amenities, of the comparable type and amount as provided
to market rate dwelling units in the Project, whether or not occupants of market rate dwelling
units pay separate charges for such services and amenities. Housing services and common area
amenities include, but are not limited to, the following: parking, use of common facilities
including pools or health spas, and utilities if the project is master-metered. Notwithstanding the
foregoing, utility charges, to the extent individually metered for each unit in the Project, may be
passed through or billed directly to the occupants of Affordable Housing Units in the Project in
addition to and separate from any items of Rent Consideration.
"Special Restrictions" has the meaning set forth in Recital E.
"Specific Plan" has the meaning set forth in Recital C.
"Successor Owner" means any person or entity who owns all or any portion of the'
Property, including without limitation any of the same who or which, if approved by the City,
become an assignee of or successor of the Owner's rights, obligations, powers, and
responsibilities required by this Agreement.
"Suspension End Date" has the meaning set forth in Section 7.2.
"Suspension Period" has the meaning set forth in Section 7.
Exhibit B — page 7
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
ON
*'TCAC" means the California Tax Credit Allocation Committee, or its successor agency.
"TCAC Procedures" has the meaning set forth in Section 2.9.2.
"Tustin" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
"Tustin Legacy" has the meaning set forth in Recital C.
"Verification of Income" has the meaning set forth in Section 2.9.2.
"Very Low Income Household" means a household of individuals whose collective
annual Gross Incomes do not exceed fifty percent (50%) of the annual Orange County Median
Income, with adjustments for smaller and larger families.
"Very Low Income Units" means the dwelling units in the Project, if any, required to be
rented to, occupied by, or held available for Very Low Income Households in accordance with
this Housing Agreement.
Exhibit B — page 8
City of Tustin / St. Anton 0
Declaration of Affordable Housing Covenants