Village Green at Gilroy, LP - Regulatory Agreement
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Titles:21 Pages: 23
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City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020-6141
Attn: City Clerk
BRENDA DAVIS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Chicago Title
RDE ** 003
12/07/2001
8:00 AM
NO FEE PER GOVERNMENT CODE
SECTIONS 6103 AND 27383
V' v'
REGULATORY AGREEMENT AND DECLARATION OF RESTRICTNE COVENANTS
This Regulatory Agreement and peclaration of Restrictive Covenants ("Agreement") is
made and entered into this 1'1' A day of .De Ct' rVL be r , 2001, by and between the City of
Gilroy, a municipal corporation ("City"), and VILLAGE GREEN AT GILROY, LP, a California
limited partnership, and its successors and assigns (collectively, "Owner").
RECIT ALS
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A. Owner is the owner of certain real property located in the City of Gilroy, Santa
Clara County, California, more particularly described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Property").
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B. The City has enacted Section 50.60 of the City of Gilroy Zoning Ordinance, which
encourages responsible growth in the community, and restricts the amount of housing which may
be constructed each year (the "Residential Development Ordinance" or "RDO").
C. The City has determined that it would be desirable to stimulate the development
of new residences for Very Low, Low and Median Income Households as defined below. In
furtherance of this goal, the City has enacted Section 50.62 (b)( 4) of the City of Gilroy Zoning
Ordinance which provides an affordable housing exemption from the RDO, intended to
encourage private developers to construct housing within the City which is affordable to Very
Low, Low and Median Income Households (the "RDO Exemption").
D. Pursuant to the RDO Exemption, Owner has applied for an exemption to the RDO
to allow the build out of a seventy-five (75) unit multi-residential rental housing project to be
rented and occupied solely by seniors of Very Low and Low Income Households, pursuant RDO
Exemption Application No. M 98-12/AHE 98-04 on file with the City's Planning Division.
Pursuant to the RDO Exemption, the City has adopted a policy to set forth the specific criteria
and guidelines for implementation of the RDO Exemption, which policy is set forth in the City's
RDO Affordable Housing Exemption Procedure for Private Developments (the "Exemption
Procedure"). The Exemption Procedure requires that the Owner enter into this Agreement with
City to assure ongoing affordability of the dwelling units in the Project for a period of at least
fifty-five (55) years from the date the City issues the initial Certificate ofthe Occupancy for the
Proj ect.
E. In order to ensure that the Project will be used and operated in accordance with
the RDO Exemption and the Exemption Procedure, City and Owner are entering into this
Agreement.
NOW, THEREFORE, for valuable consideration, the receipt of which IS hereby
acknowledged, City and Owner agree as follows:
1. Definitions. The following terms shall have the respective meanings assigned to
them in this Section 1:
(a) "Certificate of Occupancy Date" means the date of issuance by the City of
the initial certificate of occupancy for the Project.
(b) "Closing Date" means the date this Agreement is recorded in the Official
Records ofthe Recorder's Office of Santa Clara County, California (the "Official Records").
(c) "Gross Income" means the total of current adjusted gross income, as
calculated for federal income tax purposes, of all adult persons who intend to reside permanently
in a household intending to occupy a Unit.
(d) "Low Income Household" shall mean persons or families whose incomes
do not exceed the qualifying limits for low income families established for Santa Clara County,
California, as amended from time to time, pursuant to Section 8 of the United States Housing Act
of 1937. In the event such federal standards are discontinued, income limits for Low Income
Households shall be those set by the California Department of Housing and Community
Development for Santa Clara, California as fifty percent (50%) to eighty percent (80%) of
median area income, adjusted for family size.
(e) "Median Income" shall mean the median gross yearly income adjusted for
actual household size for Santa Clara County, California, as established and amended from time
to time pursuant to Section 8 of the United States Housing Act of 1937. In the event such federal
standards are discontinued, Median Income shall mean the median income as established by the
California Department of Housing and Community Development as the median family income
for Santa Clara County, California.
(f) "Median Income Household" means persons or families of Median
Income.
(g) "Project" means the seventy-five (75) unit multi-family rental housing
project to be developed on the Property and which is the subject of the following approvals
issued by City (the "Existing City Approvals"), together with all landscaping, parking spaces and
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appurtenances thereto, and the Property upon which it is constructed, as the same may from time
to time be modified or replaced: RDO Exemption Approval No. M98-12/AHE 98-04.
(h) "Project Approvals" means all governmental approvals obtained by
Owner for the development and construction of the Project, including without limitation the
Existing City Approvals.
(i) "Rent" means the total of monthly payments by a tenant for a Unit for the
following: use and occupancy of a Unit and associated facilities; any separately charged fees or
service charges assessed by Owner which are required of all tenants, other than security deposits,
laundry facility fees, late payment fees, insufficient funds fees and special event or room rental
fees; the cost of an adequate level of service for utilities paid by the tenant, if any, including
garbage collection, sewer, water, electricity, gas and other heating, cooling and refrigeration fuel,
but not telephone service, cable television and any other tenant ordered service; any other
interest, taxes, fees or other charges for use of the Unit, land or associated facilities and assessed
by a public or private entity other than Owner, and paid by the tenant. The City may determine
the cost of utilities by using the utility allowance promulgated by the United States Department
of Housing and Urban Development under the Section 8 Program (i.e., the program administered
under Section 8 of the United States Housing Act of 1937, as revised or replaced from time to
time) for Santa Clara County, California.
G) "Term" means the period of time beginning on the Closing Date and
ending on the later of (i) fifty-five (55) years following the Certificate of Occupancy Date, or (ii)
the date of expiration of the longest running occupancy and rent affordability restriction placed
on the Property with respect to any source of debt or equity financing for the Project.
(k)
of the Project.
"Units" means the dwelling units to be constructed on the Property as part
(1) "Very Low Income Household" means persons or families whose incomes
do not exceed the qualifying limits for very low income families established for Santa Clara
County, California, as amended from time, to time pursuant to Section 8 of the United States
Housing Act of 1937. In the event such federal standards are discontinued, income limits for
Very Low Income Households shall be those set by the California Department of Housing and
Community Development for Santa Clara County, California as fifty percent (50%) of median
area income, adjusted for family size.
2. Use and Maintenance of Property. The Owner hereby acknowledges and agrees
that the Project is to be developed, owned, managed and operated as residential rental housing,
seventy-five (75) Units of which shall be rented and occupied solely by seniors of Very Low and
Low Income Households during the Term of this Agreement. To that end, and for the Term of
this Agreement, the Owner hereby represents, covenants, warrants and agrees as follows:
(a) Development and Use as Rental Housing. Owner shall complete
construction of the Project in accordance with all Project Approvals and all loans and
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encumbrances encumbering the Property. Owner shall own, manage and operate the Project to
provide rental housing, seventy-five (75) Units of which will be rented and occupied solely by
seniors of Very Low and Low Income Households in accordance with this Agreement. If at any
time during the Term of this Agreement, there are less than the required number of rental Units
rented to and occupied by Very Low or Low Income Households, Owner shall market available
Units within the Project only for rent to households which meet the target household income
category necessary to bring the Project into compliance with the requirements of this Agreement,
until such time as the Units of the Project are rented to and occupied by the requisite number of
Very Low or Low Income Households. Notwithstanding anything to the contrary contained
herein, the income targeting and rent restrictions described in this Agreement shall not apply to
up to one (1) unit that constitutes a management unit for purposes of Section 42 of the Internal
Revenue Code of 1986, as amended.
(b) Compliance With Laws. Each Unit, and all common areas, shall be
maintained in conformity with applicable building codes and regulations and all other applicable
laws.
(c) Prohibition of Use for Transient Housing. None of the Units on the
Property shall at any time be utilized on a transient basis, or as a hotel, motel, dormitory,
fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium or trailer
court or park.
(d) Nondiscrimination. The Owner shall not give preference to any particular
class or group of person in renting the Units, except to the extent that the Units are required to be
leased or sold to Very Low or Low Income Households, and except that occupancy shall be
limited to persons sixty-two (62) years and older provided such limitation is allowed by
applicable laws. The Owner agrees 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 preference,
marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the Project nor shall the Owner, or any person claiming under
or through the Owner, 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, sublessees, subtenants or vendees of the Project or in connection with the employment of
persons for the operation and management of the Project. All deeds, leases or contracts made or
entered into by Owner as to the Units or the Project or any portion thereof during the Term shall
contain a prohibition against discrimination or segregation as set forth in this subsection (d)
above. Notwithstanding the foregoing, nothing in this subsection (d) is intended to require
Owner to change the character, design, use or operation of the Project from, or to require Owner
to obtain licenses or permits other than those required for, a rental housing development for
persons capable of independent living.
(e) Taxes and Assessments. Owner shall pay all real and personal property
taxes, assessments and charges and all franchise, income, employment, withholding, sales, and
other taxes assessed against Owner or the Project, or otherwise payable by Owner, at such times
and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching
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to the Project; provided, however, that Owner shall have the right to contest in good faith, any
such taxes, assessments or charges; and provided further, however, that so long as the Project is
operated in compliance with this Agreement, the Project shall be exempt from all real and
personal property taxes, assessments and charges in accordance with applicable law. If Owner
exercises its right to contest any tax, assessment or charge against it or the Project, Owner, on
final determination of the proceeding or contest, shall immediately payor discharge any decision
or judgment rendered against it or the Project, together with all costs, charges and interest.
(f) Maintenance. Owner shall at all times maintain the Project in good repair
and working order, and in a safe and sanitary condition, and from time to time shall make all
necessary and proper repairs, renewals and replacements in order to keep the development in a
good, safe and sanitary condition.
3. Occupancy and Rent Restrictions. Owner hereby represents, warrants, and
covenants as follows:
(a) Occupancy by Low and Median Income Households. Owner agrees to
exert diligent efforts to see that the Project provides rental housing, seventy-five (75) Units of
which will be rented and occupied solely by seniors of Very Low or Low Income Households
during the Term of this Agreement. Attached hereto as Exhibit "B" is a listing of the number of
Units within the Project and the number of bedrooms in each Unit, which list identifies the
number of Units which shall be reserved by Owner for Very Low or Low Income Households.
If, at any time during the Term of this Agreement, less than the required number of Units are
rented to and occupied by Very Low or Low Income Households, Owner agrees to market the
available Units in the Project only for rent to households which meet the target household income
category necessary to bring the Project into compliance with the requirements of the Agreement,
until the required number of Units in the Project are rented to and occupied by the requisite
number of Very Low or Low Income Households. The marketing requirements set forth in this
subsection (a) above shall apply regardless of the reason for less than the required number of
Units being rented to and occupied by the Very Low or Low Income Households at any given
time during the Term of this Agreement, including without limitation where such situation exists
as the result of income increases of any tenant who may at one time have qualified for the
targeted household income category.
(b) Allowable Rent. The Rent payable for each Unit shall be calculated based
on Unit size, in accordance with Exhibit "C" attached hereto. Rent for any Unit may only be
increased one (1) time per year, based upon increases in median family income levels as
published by the United States Department of Housing and Urban Development, and the Rent
levels following an increase, or upon a new occupancy, shall not exceed the applicable Rent
levels required pursuant to this Subsection (b). A tenant shall not be required to pay a cleaning
and/or security deposit totaling in the aggregate more than the monthly Rent for a Unit.
(c) Effect of Increase in Income. City reserves the right to review all
documents and materials related to tenant eligibility, and to verify the continuing eligibility of all
tenants and prospective tenants. All prospective tenants shall have their eligibility verified by the
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Owner prior to rental of the Unit. Owner shall recertify tenant incomes annually thereafter. If a
tenant household's income increases during its tenancy, the following shall apply:
(i) If the tenant household's income does not exceed one hundred
twenty percent (120%) ofthe maximum income which qualifies as a Low Income Household, the
tenant shall be allowed to remain in its Unit.
(ii) If a tenant household is found to make more than one hundred
twenty percent (120%) ofthe maximum income which qualifies as a Low Income Household, the
tenant shall be given written notice to vacate. Such notice shall require the tenant to vacate the
Unit not later than one hundred twenty days (120) after the date that Owner becomes aware of the
income increase. During the time that this tenant continues to rent the Unit, the rental rate of the
Unit shall not increase above the maximum rental rate per Unit size determined in accordance
with Exhibit "C" attached hereto.
(d) Owner shall advertise the existence and terms of this rental program to the
general public and accept applications from prospective tenants. Owner shall initially advertise
in Gilroy. Owner shall keep a list of all qualified tenants, and shall make this list, along with all
relevant financial data pertaining to prospective tenants, available to City upon request. All
tenants shall be selected off ofthis list. Owner shall provide the City with a detailed outreach
and advertising plan acceptable to City not less frequently than annually during the Term ofthis
Agreement, in order to insure that the housing needs for Median and Low Income Households
are met.
(e) Compliance with Exemption Procedure. Rental of the Units within the
Project shall be subject to and shall comply with the criteria for occupancy standards set forth in
the Exemption Procedure, as the same may be amended from time to time. No deviation from
such criteria for occupancy standards shall be allowed except as expressly agreed to by the City
on application of Owner, determined in City's sole discretion.
4. Income Certification and Reporting.
(a) Tenant Certifications.
(i) During any period that income and household size and composition
certifications from each tenant and household are required to be submitted to any federal and/or
state agencies under the terms of any loan from such agencies recorded against the Project,
Owner shall submit copies of those certifications to City at the same time that submittal of such
certifications are required to be made to the applicable federal and/or state agencies.
(ii) During any period when income and household size and
composition certifications from each tenant and household are not required to be submitted to
any federal or state agencies under the terms of any loans from such agencies recorded against
the Project, the requirements of this subsection (ii) shall apply. Immediately prior to initial
occupancy by such tenant household and annually thereafter, Owner shall obtain income and
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household size and composition certifications by each tenant household obtained in such form
required by City from time to time. Owner shall obtain updated forms for each tenant household
on request by the City, but in no event less frequently than once a year. Owner shall verify that
the income information provided by an applicant or occupying household in an income
certification is accurate by taking one or more of the following steps as part of the verification
process; (1) obtain pay stubs for the three (3) most recent pay periods; (2) obtain an income tax
return for the most recent tax year; (3) obtain an income verification form from the applicant's
current employer; (4) obtain an income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance from
either of such agencies; or (5) if the applicant is unemployed and has no such tax return, obtain
another form of independent verification. Copies of tenant income certifications and documents
verifying income shall be maintained during the entire occupancy of a Unit by a household and
for a period of not less than five (5) years thereafter and shall be available to the City within five
(5) days after request.
(b) Annual Report to City. Each year the Owner shall submit an annual
report to the City on a form to be provided by the City, except that to the extent that an annual
report containing the information required by this subsection (b) below is required to be
submitted to any federal and/or state agencies under the terms of any loans from such agencies
recorded against the Project, the annual report to be submitted to the City shall be on the same
forms as is required to be submitted to such federal and/or state agencies.
The annual report shall include for each Unit, the Rent and the income and family size
and composition of the household occupying the Unit. The report shall also state the date the
tenancy commenced for each Unit. The income and household size and composition information
shall be as supplied by each tenant household in the certification form required by Section 4(a)
above. A true copy of each such form, signed by the tenant, shall be attached to the Owner's
annual report to the City. For each calendar year during the Term, an annual report shall be filed
with the City not later than February 28 of the following calendar year, except that to the extent
that an annual report is required to be submitted to any federal and/or state agency under the
terms of any loan from such agency recorded against the Project, the annual report shall be
submitted to the City at the time such report is submitted to such federal and/or state agency.
(c) Additional Information. The Owner shall provide to the City any
additional information required by the laws of the City, the State of California and the United
States, as the same may be amended from time to time.
(d) Lease and Sale Provisions. To the extent not in conflict with the
requirements of any loan to which this Agreement has been expressly subordinated by written
agreement of the City, the provisions of this subsection (d) shall apply. In no event shall City be
obligated to subordinate this Agreement to any loan, except as provided in subsection (e) below.
Owner shall include in leases and rental agreements for all Units, provisions which authorize
Owner to immediately terminate the occupancy of any household one or more of whose members
misrepresented any fact material to the household's qualification as a Very Low or Low Income
Household. Each lease or rental agreement shall also provide that the household is subject to
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annual certification in accordance with Section 4(a) above. Owner shall specifically refer to this
Agreement in any lease of a Unit and to any purchase and sale contract with respect to any
portion of the Project, provided that failure to do so shall not invalidate or otherwise affect the
effectiveness of this Agreement. Every grant deed for all or any portion of the Project shall
specifically state that the grant is made subject to all of the terms and conditions set forth in this
Agreement, provided that Owner's failure to comply with these requirements shall not invalidate
or otherwise affect the effectiveness of this Agreement.
( e) Lender Provisions. City acknowledges and agrees that Owner will be
obtaining financing for the Project with assistance from the California Housing Finance Agency,
California Tax Credit Allocation Committee and other state or federal housing agencies, and the
City agrees to reasonably cooperate with Owner in connection therewith. The terms of this
Agreement to the contrary notwithstanding, this Agreement, and all and several of the terms
hereof, shall terminate and be of no further force and effect in the event of a foreclosure or
delivery of a deed in lieu of foreclosure whereby a third party shall take possession of the Proj ect
or involuntary non-compliance with the provisions of this Agreement caused by fire, seizure,
requisition, change in a federal law or an action of a federal agency after the date hereof which
prevents the City from enforcing the provisions hereof or condemnation or a similar event;
provided, however, that the preceding provisions of this sentence shall cease to apply and the
restrictions contained herein shall be reinstated if, at any time subsequent to the termination of
such provisions as the result of the foreclosure or the delivery of a deed in lieu of foreclosure or a
similar event, the Owner or any related person to it (within the meaning of Section 1.103-1 O( e) of
the Treasury Regulations) obtains an ownership interest in the Project for Federal income tax
purposes. Upon the termination of the terms of this Agreement, the parties hereto agree to
execute, deliver and record appropriate instruments of release and discharge of the terms hereof;
provided, however, that the execution and delivery of such instruments shall not be necessary or
a prerequisite to the termination of this Agreement in accordance with its terms.
5. Indemnification. The Owner hereby covenants and agrees that it shall indemnify,
defend with counsel acceptable to City and hold harmless the City and the City's officers,
members, commissioners, directors, officials, employees, and agents (collectively, the
"Indemnified Parties"), from and against any and all claims arising from this Agreement and the
construction, ownership, operation or management of the Project; and all reasonable costs and
counsel fees incurred by the Indemnified Parties in defense of such a claim, or in order to assert
its rights under this Section 5; provided, however, the foregoing indemnification provision shall
not apply to matters arising out of the City's willful misconduct or gross negligence.
6. Term. This Agreement shall become effective upon its execution and delivery
and shall remain in full force and effect for the Term. This Agreement shall bind any successor,
heir or assign of Owner, whether a change in interest occurs voluntarily or involuntarily, by
operation of law or otherwise, with or without the approval of the City, except as expressly
released by the City. This Agreement shall inure to the benefit of the City and its successors.
7. Covenants to Run with the Land. The City and Owner hereby declare their
express intent that the covenants and restrictions set forth in this Agreement are covenants
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running with the land, and that the covenants shall be binding upon all successors in title to the
Project or any portion thereof; provided, however, that on the termination of this Agreement said
covenants shall expire. Each and every contract, deed or other instrument hereafter executed
covering or conveying the Project or any portion thereof shall be held conclusively to have been
executed, delivered and accepted subject to such covenants and restrictions, regardless of
whether such covenants and restrictions are set forth in such contract, deed or other instrument.
The Owner and the City hereby declare their understanding and intent that:
(a) The covenants and restrictions contained in this Agreement shall be
construed as covenants running with the land pursuant to California Civil Code section 1460 et
seq.; and
(b) The burden of the covenants and restrictions set forth in this Agreement
touch and concern the Project in that the Owner's legal interest in the Property and all
improvements thereon may be rendered less valuable thereby; and
(c) The benefit of the covenants and restrictions set forth in this Agreement
also touch and concern the Project by enhancing and increasing the enjoyment and use of the
Project and Units by Very Low, Low or Median Income Households, furthering the public
purpose for which exemption from the RDO was granted to Owner.
Notwithstanding the foregoing, all covenants and restrictions contained herein without
regard to technical classification or designation shall be binding upon the Owner and its
successors in interest for the benefit of the City, and such covenants and restrictions shall run in
favor of City for the entire Term, without regard to whether the City is an owner of any land or
interest therein to which such covenant and restrictions relate.
8. Uniformity. Common Plan. The covenants and restrictions set forth in this
Agreement shall apply uniformly to all Units, in order to establish and carry out a common plan
for the use of the Property.
9. Enforcement by the City. If the Owner defaults in the performance of any of the
Owner's obligations under this Agreement, City shall have the right to pursue any or all of the
following actions, or any other remedy provided by law or in equity:
(a) Action to Compel Performance. The City may bring an action at law or in
equity to compel the Owner's performance of its obligations under this Agreement and/or to
prevent the violation of the terms and conditions ofthis Agreement by Owner.
(b) Action for Damages. The City may bring an action to collect damages
from the Owner due to Owner's default.
(c) Excess Rent. In addition to any other damage incurred by City, if and to
the extent that the Owner receives rents or other payments from the operation of the Units or
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other improvements constructed on the Property in excess of what Owner is permitted to charge
and receive pursuant to this Agreement, Owner agrees and covenants to pay to the City the full
amount of such excess immediately on demand by the City. The Owner and the City agree and
intend that the payment of such excess shall not alone be an adequate remedy to accomplish the
purposes of this Agreement or to compensate City for damages incurred by City.
(d) Rescission of Project Approvals. The City has the right to void all
approvals for the Project, and to prevent the Project from proceeding, until such time as the
Owner complies with the annual competition procedures set forth in the RDO.
(e) All Remedies Available and Cumulative. City shall have the right to
exercise all available rights and remedies, and to maintain any action at law or suits in equity or
other proceedings, including without limitation, specific performance, to enforce the terms,
covenants and restrictions of this Agreement. No delay in enforcing the provisions hereof as to
any breach or violation shall impair, damage or waive the right of the City to enforce the
provisions hereof in the future for any continuing or new breach or violation of any of the terms,
covenants or restrictions contained in this Agreement. All rights and remedies, including without
limitation those set forth in this Section 9 above, of any party legally entitled to enforce this
Agreement shall be cumulative and the exercise of any such right or remedy shall not impair or
prejudice and shall not be a waiver of the right to exercise any other such rights and remedies.
10. Lienor's Remedies. The provisions of this Agreement do not limit the right of any
obligee to exercise any of its remedies for the enforcement of any pledge or lien upon the
Property; provided, however, that in the event of any foreclosure, under any mortgage, deed of
trust or other lien or encumbrance, or a sale pursuant to any power of sale included in any such
mortgage or deed of trust, or in the case of a deed in lieu of foreclosure, the purchaser (or other
transferee) and their successors in interest and assigns and the Property shall be, and shall
continue to be, subject to all of the covenants and restrictions set forth in this Agreement. The
provisions of this Section 10 shall not apply with respect to any loan to which this Agreement has
been expressly subordinated pursuant to a separate written instrument executed by City and/or in
the event of a foreclosure or deed in lieu of foreclosure under Section 4( e).
11. Right of Inspection. City shall have the right from time to time during the Term
of this Agreement, and for a period of five (5) years thereafter, upon giving Owner reasonable
notice, to examine and make copies of all books, records or other documents of the Owner which
pertain to the Project. All such books, records and other documents pertaining to the Project
shall be maintained at the office of the Owner or management agent. All such books, records and
documents shall be maintained by Owner for a period of not less than five (5) years, or such
longer period as required by this Agreement.
12. Attorneys' Fees and Costs. In any action brought to enforce or interpret this
Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including
reasonable attorneys' fee.
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13. Recording and Filing. City and Owner shall cause this Agreement and all
amendment and supplements to it, to be recorded in the Official Records, at Owner's cost.
14.
California.
Governing Law. This Agreement shall be governed by the laws of the State of
15. Amendments. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the Official
Records. The City and its successors and assigns, on the one hand, and the Owner and its
successors in interest and assigns, on the other, shall have the right to consent and agree to
changes in, or to eliminate in whole or in part, any of the covenants or restrictions contained in
this 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.
16. Notice. All notices shall be given personally or by first class mail, postage
prepaid, addressed as shown on the signature page of this Agreement. Notices shall be deemed
given on the earlier of the date delivered or the second day following the date on which the same
have been mailed in the manner required by the prior sentence. Any of the parties may, by notice
given in the manner required by this Section 16, designate any further or different addresses to
which subsequent notices shall be sent.
17. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions of this
Agreement shall not in any way be affected or impaired thereby.
18. Assignment. This Agreement may be assigned with the written consent of the
City to an entity created by the Owner for the sole purpose of developing, owning, managing and
operating the Project in which the Owner shall remain as general partner or managing partner.
Notwithstanding any other provision of this Agreement, no other duties or obligations of the
Owner under this Agreement may be assigned by the Owner without the prior written consent of
City.
19. Counterparts. The parties hereto agree that this Agreement may be executed in
counterparts, each of which shall be deemed an original, and said counterparts shall together
constitute one and the same Agreement, binding all of the parties hereto, notwithstanding that all of
the parties are not signatories to the original or the same counterparts. For all purposes, including,
without limitation, recordation, filing and delivery of this instrument, duplicate, unexecuted and
unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as
one document.
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IN WITNESS WHEREOF, the City and the Owner have executed this Agreement by duly
authorized representatives on the date and year shown below.
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; Attest:. ../ /
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City Clerk
Appm~,d A, to Fonn, I
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Dated: t2- -t -1tVl2001
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CITY OF GILROY, a municipal corporation
~Jet?u
By:
Its:
AMichael Darn
~I)MI"'. 5€" Vt~~7
~/L,
Address:
7351 Rosanna Street
Gilroy, CA 95020-6141
VILLAGE GREEN AT GILROY, LP,
a California limited partnership
Affordable Housing Access, Inc.,
a California nonprofit corporation
Its: Managing General Partner
By: Jonathan B. Webb
Its: Executive Director
DMA Gilroy Partners, LLC
Its General Partner
By:
Its:
dJ
By:
Its:
Address:
1520 Hecker Pass, Gilroy, CA 95020
STATE OF CALIFORNIA )
)ss.
COUNTY OF SANTA CLARA )
TITLE OF DOCUMENT: Regulatory Agreement and Declaration of Restrictive Covenants
Between City of Gilroy and Village Green at Gilroy, LP, a
California limited partnership, and its successors and assigns
On December 4,2001, before me, Rhonda Pellin, Notary Public, personally appeared Michael
Dorn personally known to me to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNE] my hand and Ojial seal
~A-;~ ~--<--,,-.
'" Sigpature of Notary Public
J..-.------.-..-..-..-.-
J. ec.::=1!1 J
.., PubDc - CaIfamII I
Santa Clara County -
_ _ _ ~~~~1s:~f
per GC Sec. 40814; CC Sec. 1181
(Notary Seal)
\~
GENERAL ACKNOWLEDGMENT
CHICAGO TITLE COMPANY
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
SS.
On December 5, 2001, before me, Janet K. Wallace,
a Notary Public in and for said County and State, personally appeared
Al DeFrancesco
personally known to me (or proved to me on
the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are sub-
scribed to the within instrument and ack-
nowledged to me that he/she/they executed
the same in his/her/their authorized capa-
city(ies), and that by his/her/their sig-
nature on the instrument the person(s), or
the entity upon behalf of which the per-
son(s) acted, executed the instrument.
WI~NEssmT-)d and official
{"
( /117d
seal.
(Notarial stamp or seal)
r..................................................
........ .........
tJ., ....-~.: '. JANET K. WALLACE *1
~:. ~; COMM. #1310827
fa :.. .' Notary Publlc..californla m
~. i SANTA CLARA COUNTY ~
..... My Comm. Exp. July 23, 2005
IN WITNESS WHEREOF, the City and the Owner have executed this Agreement by duly
authorized representatives on the date and year shown below.
}" )
: Attest:... .._~,/~.
"'-.. ,i(,}t_?~t:Zji;7( --t/ ~~A,-, ,
City Clt~rk
Appro;ed As to Form: . 1
\ ~ldt\1
-~ CI 1\TTO Y
Dated: tl--t -1Jb{2001
12
CITY OF GILROY, a municipal corporation
~Jet?v
By:
Its:
AMichael Darn
~ II 1'-11 /II. 5 tE ,II. V t "'15 ~
D1L,
Address:
7351 Rosanna Street
Gilroy, CA 95020-6141
VILLAGE GREEN AT GILROY, LP,
a California limited partnership
Affordable Housing Access, Inc.,
a California nonprofit corporation
Its: Managing General Partner
By: Jonathan B. Webb
I~: \ Executive Director
D~ Gilroy Partners, LLC
I~ G no"~p,rtn,, C~~---
i '----. ../ /
By: Jo Andreini /
Its: 't4~n ger
By: Al DeFrancesco
Its: Manager
Address:
1520 Hecker Pass, Gilroy, CA 95020
STATE OF CALIFORNIA
COUNTY OF San Mateo
On December 5, 2001 before me, (:)1 r+ f\.A S M \ F A-m R.A D a Notary Public
in and for said State, personally appeared John a. Andreini an~ T~~A~ ~ ~ Ill,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/tllcir signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS
my hand and official
Q~ ~e '711
seal.
Signed
i-#1;~Lj/~
o
II I If U 1IIIlI II I Ii U J II 1 Ii III 1
Soal: 'O~ .." tI/Idl<;IlJOIIItIIIIUCIO low e
.uNnOO 0lIJ.'fW N'f'I . .' .
~ 't'IMlIIOMM) . orKIn.! AWJ.OH I
~ L8./.cez~. 'wwoo .
~a~VN~'waN~a I
~;Il UIIU IIll I1I1I1I I J[l1 IIII
IN WITNESS WHEREOF, the City and the Owner have executed this Agreement by
duly authorized representatives on the date and year shown below.
CITY OF GILROY, a municipal corporation
By:
Its:
Address:
7351 Rosanna Street
Gilroy, CA 95020-6141
Attest:
City Clerk
Approved As to Form:
CITY ATTORNEY
,2001
VILLAGE GREEN AT GILROY, LP,
a California limited partnership
Dated:
Affordable Housing Access, Inc.,
a California nonprofit corporation
Its: Man . g General Partn r
By:
Its:
DMA Gilroy Partners, LLC
Its General Partner
By: John Andreini
Its: Manager
By: AI DeFrancesco
Its: Manager
Address:
1520 Hecker Pass, Gilroy, CA 95020
CALlFORNIA ALL-PURPOSE ACKNOWLEDGMENT
r.:,<
State of California
County of
~ f'(vP<NCl Svl>
.~
,I
} ss
Date
L-HJ 'l}1\ T) . \., 'lA:.1"\l ~
Name and TItle of Officer (e,g "Jane Doe, Notary Public")
.1Cl0/'<\\~ f-, VV~~?-f-::>
Name(s) of Signer(s)
IJ personally known to me
)Q proved to me on the basis of satisfactory
evidence
,)
to be the person~) whose namets') @/are
subscribed to the within instrument and
acknowledged to me that @she/they executed
the same in @her/their authorized
capacity~), and that by tllSlher/their
signature~) on the instrument the person(~, or
the entity upon behalf of which the person~)
acted, executed the instrument.
WITNE~mY hand and official seal.
,I\-::",",.? ~O",~~"~(j
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Number of Pages:
@1999National Notary Association. 9350 De Soto Ave., P.O. Box 2402. Chatsworth, CA 91313-2402. www.nationalnotary.org
Prod. No. 5907
Reorder: Call Toll-Free 1-800-876-6827
I'
I'
On i7ff.~ \~'f2- 6, ~ , before me,
personally appeared
\,
I,
I.
Ji.~=:"I,
~. Notay PublIc - Cullfomla
J San Fronclsco County f
, , ," ~~~~~
Place Notary Seal Above
\.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
C Individual
D Corporate Officer - Title(s):
D Partner - D Limited [J General
D Attorney in Fact
o Trustee
o Guardian or Conservator
C Other:
Signer Is Representing:
I.
c:<,;
Order No. 876507 - LM
LEGAL DESCRIPTION
All that certain Real Property in the City of Gilroy, County of Santa Clara, State
of California, described as follows:
Parcel One
All of Lots 2 and 3 as shown upon that certain Map entitled, "Tract No. 9374 The
Village Green", which Map was filed for record November 26, 2001, in Book 745 of
Maps, pages 13, 14, 15, 16 and 17, Instrument No. 15975553, Santa Clara County
Records.
Parcel Two
A non-exclusive easement for ingress and egress over those Private Streets shown as
Street "A", Street "B" and Street "C" upon that certain Map entitled, "Tract No.
9374 The Village Green", which Map was filed for record November 26, 2001, in Book
745 of Maps, pages 13, 14, 15, 16 and 17, Instrument No. 15975553, Santa Clara
County Records.
Parcel Three
Non-exclusive easements as contained in that certain Instrument entitled
"Memorandum of Shared Use Agreement (Private Streets and Entry Facilities)"
recorded December 7, 2001, Instrument No. l'5ftfC}roO ' Official Records of Santa
Clara County.
Parcel Four
Non-exclusive easements as contained in that certain Instrument entitled
"Memorandum of Shared Use Agreement (parking Areas)" recorded December 7, 2001,
Instrument No. l5'q1~::ro ( , Official Records of Santa Clara County.
Parcel Five
Non-exclusive easements as contained in that certain Instrument entitled
"Memorandum of Shared Use Agreement (Recreational Facilities)" recorded December 7,
2001, Instrument NO./!:J'lrQ:::;-02.. , Official Records of Santa Clara County.
LEGALS 6/95 ksn
EXHIBIT "B"
IDENTIFICATION OF UNITS RESERVED FOR
LOW AND VERY LOW INCOME HOUSEHOLDS
There are a total of75 Units in the Project. 53 Units are 1-bedroom/1-bathroom
Units. 22 Units are 2-bedroom/1 bathroom Units. All Units are reserved for Low
and/or Very Low Income Households.
EXHIBIT "c"
RENTAL RATE CALCULATION
One bedroom, one bath
Two bedroom, one bath
Total units
Units
53
22
75
2001 Gross
Rent at 50%
of AMGI
$818
$982
2001 Utility
Allowances
$36
$54
2001 Net
Rent at 50%
AMGI
$773
$918
Rental rates are subject to increase not more than once per year based upon the then applicable
Median Income for Low or Very Low Income Households in Santa Clara County, State of
California, adjusted for family size, as published by the United States Department of Housing
and Urban Development. Utility rates are subject to increase in accordance with the Agreement
to which this Exhibit "C" is attached. All initially capitalized terms herein shall have the
meanings given them in the Agreement.
DEVELOPMENT IMPACT FEE RIDER
The Development Impact Fee Rider (the "Rider") is attached to and forms a part of the
Regulatory Agreement and D':l:laration of Restrictive Covenants (the "Regulatory Agreement")
dated as of , 200 I, by Village Green at Gilroy, LP ("Owner") and
the City of Gilroy (the "City").
1. Definitions. Terms used in this Rider as defined terms shall have the meanings
given those terms in the Regulatory Agreement. In addition, the following terms
shall have the following meanings:
"Development Impact Fees" means the following fees and charges on the Project:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Parks and Recreation
Schools
Traffic Fees
Law Enforcement Facilities
Fire Facilities
Waste Water Treatment
Waste Water Collection
lJrainag.: l'acilities
Public Facilities
Total
$ 442,950
17,331
266,325
225,225
17,550
108,975
287,700
4,688
78,825
$ 1,449,569
The Developiil>':lh 1m;),.., .~~cs are consistent with the requirements of Section 66000 et
seq. of the State Government Code.
"Reconstruction Event" means any rebuilding or reconstruction of the Project pursuant
to a new building permit, after demolition or destruction of all or substantially all ofthe Project
for any reason.
"Reimposition Event" means a Reconstruction Event or a Use Change Event.
"State Government Code" means the Government Code of the State of California.
"Use Change Event" means any change in the use ofthe Project from multi-residential
affordable housing.
2. Applicability. The provisions of this Rider shall amend and supplement the
provisions of, and in the event of a conflict shall supersede the conflicting
provisions of, the Regulatory Agreement.
3. Payment of Development Impact Fees. The Owner shall pay each Development
Impact Fee in connection with the Project upon each occurrence of any
Reimposition Event. Notwithstanding the foregoing, each Development Impact
C:\ WINN1\PROFILESW ARGELIS _JC\DESKTOP\RIDER.DOC
Fee shall be assessed only once in connection with a Use Change Event that
occurs in conjunction with a Reconstruction Event. In the case of a
Reconstruction Event, each additional Development Impact Fee shall be due and
payable upon issuance of the new building permit. Each additional Development
Impact Fee shall be calculated for the Project based upon fee schedules and rates
applicable at the time such Reimposition Event occurs, and no credit shall be
given for any Development Impact Fee previously paid by the Owner.
4. Incten.l'2i_:_=_~_~'l1l,'/ C'wner. The Owner hereby agrees to indemnify and hold
harmless the City from and against any and all claims, demands, causes of action,
proceedings, injuries and damages of any kind which result or arise out of the
terms of the Rider. Without limitation on the foregoing, the Owner hereby fully
and unconditionally releases City from, and waives any and all claims, demands,
cause;,; uf L1"'l~Vh, :.~ .HlCS, damagcs, and fedcral or state constitution or statute,
including without limitation, those asserted under Section 66000 et seq. of the
State Government Code.
5. Reconstruction Event Not Applicable to Natural Disaster. The parties hereby
agree Lli<.1l ll." l,e'.) u,vU( of the Development Impact Fees set forth herein shall not
be imposed upon a Reconstruction Event caused by a natural disaster, as declared
by the Governor of the State of California, in accordance with California
Government Code Section 66010 et Seq.
6. Rid~r_~'-"---''''';,,,, T" the Event ora Tax Law Chana,e. In the event that legal
authority is published that clearly provides that the Owner may include the
Development Impact Fees in eligible basis under Internal Revenue Code Section
42( d), this Rider shall terminate.
7. Counterparts. '111t: parties hereto agree that this Rider may be executed in
counterparts, each of which shall be deemed an original, and said counterparts
shall together constitute one and the same Agreement, binding all ofthe parties
hereto, notwithstanding that all of the parties are not signatories to the original or
the same counterparts. For all purposes, including, without limitation, recordation,
filing and dcliv(,;ry 01 this instrument, duplicate, unexecuted and unacknowledged
pages of the counterparts may be discarded and the remaining pages assembled as
one document.
C:\ WINNT\PRO FILES\V ARGELlS _J C\D ESKTO P\RlD EK DOC