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Monticelli Housing Associates - Agreement and Declaration of Restrictive Covenants fl/,I'I' RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: . DOCUMENT: 16381122 n ~IIII~ III ~ 1111 II :o:0016381122~ Titles:2/ Pages: 18 Fees... * No Fees Taxes. Cop i es. . AMT PAID City of Gilroy 7351 Rosanna Street Gilroy, CA 95020-6141 Attn: City Clerk BRENDA DAVIS SANTA CLARA COUNTY RECORDER Recorded at the request of Old Republ ic Title Company RDE l:I 002 7/24/2002 8:00 AM NO FEE PER GOVERNMENT CODE SECTIONS 6103 AND 27383 REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS This Regulatory Agreement and Declaration of Restrictive Covenants ("Agreement") is made and entered into this l~~ay of July, 2002, by and between the City of Gilroy, a municipal corporation ("City"), and MONTI CELLI HOUSING ASSOCIATES, a Limited Partnership ("Owner"), in which SOUTH COUNTY HOUSING CORPORATION is a General Partner. RECITALS 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"). 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 fifty-two (52) unit residential rental housing project, consisting of one (1) manager's unit, twenty-six (26) senior citizen apartment units and twenty-five (25) multi-family units, to be rented and occupied solely by persons of Low Income Households, pursuant RDO Exemption Application No. M 98-09/AHE 98-03 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 of the Occupancy for the Project. 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. \JH\541627.3 01-070902-04706002 -1- NOW, THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, City and Owner agree as follows: 6. 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 of the 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, and shall not exceed 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 fifty-two (52) unit residential rental housing project, consisting of one (1) manager's unit, twenty-six (26) senior citizen apartment units and twenty-five (25) multi-family units, 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 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. M98-09/ ARE 98-03. (h) the development and Approvals. "Project Approvals" means all governmental approvals obtained by Owner for construction of the Project, including without limitation the Existing City (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 \JH\541627.3 01-070902-04706002 -2- 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. (j) "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) "Units" means the dwelling units to be constructed on the Property as part of the Project. (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. 7. Use and Maintenance of Property. The Owner hereby acknowledges and agrees that the Project is to be developed, owned, managed and operated to provide fifty-two (52) units of residential rental housing, consisting of one (1) manager's unit, twenty-six (26) senior citizen apartment units and twenty-five (25) multi-family units, which shall be rented and occupied solely by persons of 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 encumbrances encumbering the Property, and the Certificate of Occupancy Date shall occur, not later than December 31, 2002. Owner shall own, manage and operate the Project to provide fifty-two (52) units of residential rental housing, consisting of one (1) manager's unit, twenty-six (26) senior citizen apartment units and twenty-five (25) multi-family units, which shall be rented and occupied solely by persons of Low Income Households during the Term of 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 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 Low Income Households. (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, rest home, retirement home, or trailer court or park. \JH\541627.3 01-070902-04706002 -3- (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 all of the Units are required to be leased to persons of Low Income Households, and that occupancy of twenty-six (26) of the fifty-two (52) Units 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 to the Project; provided, however, that Owner shall have the right to contest in good faith, any such taxes, assessments or charges. 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. 8. follows: Occupancy and Rent Restrictions. Owner hereby represents, warrants, and covenants as (a) OcculJancv by Low Income Households. Owner agrees to exert diligent efforts to see that the Project provides residential rental housing, fifty-two (52) unit multi-residential rental housing project, consisting of one (1) manager's unit, twenty-six (26) senior citizen apartment units and twenty-five (25) multi-family units, which shall be rented and occupied solely by persons of 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 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 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 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 Low Income Households at any given time during the \JH\541627.3 01-070902-04706002 -4- 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, 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) above. A tenant shall not be required to pay a cleaning and/or security deposit totalling 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 Owner prior to rental of the Unit. Owner shall re-certify 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%) of the 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%) of the 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 of this list. Owner shall provide the City with a detailed outreach and advertising plan acceptable to City not less frequently than annually during the Term of this Agreement, in order to insure that the housing needs for 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. 9. 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. \JH\541627.3 01-070902-04706002 -5- (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 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 Low Income Household. Each lease or rental agreement shall also provide that the household is subject to 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 \JH\541627.3 01-070902-04706002 -6- 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 effect the effectiveness of this Agreement. (e) Cooperation. City acknowledges and agrees that Owner will be obtaining financing for the Project with assistance from the California Housing Finance Agency ("CHF A"), California Tax Credit Allocation Committee, and other state or federal housing agencies. Notwithstanding anything stated to the contrary in this Agreement, City agrees that its cooperation with the Owner under this Section shall include, without limitation, the future execution and delivery by City to the California Housing Finance Agency ("CHF A"), California Tax Credit Allocation Committee, and other state or federal housing agencies that may hereafter make a loan to Owner for repayment of all or part of the construction loan made by Union Bank of California, N.A. ("UBOC") to Owner of a subordination agreement within thirty (30) days following such lender's written request, which subordination agreement shall unconditionally subordinate the effect of this Agreement to the lien and effect of any deed of trust securing any loan made by any such lender. The City further agrees that it will subordinate this Agreement only to the extent required by CHF A and the California Department of Housing and Community Development ("HCD"). (f) Notwithstanding anything stated to the contrary in this Agreement (including, without limitation, the provisions of Section 15 of this Agreement, this Agreement is, and shall be, subordinate in all respects to the lien and effect of that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated October 24, 2001, executed by Owner for the benefit of UBOC, and recorded November 26,2001, as Document No. 15975498 in the Official Records of Santa Clara County, California, as such deed of trust may be amended or modified from time to time. 10. 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. 11. 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 oflaw 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. 12. 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 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: \JH\541627.3 01-070902-04706002 -7- (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 Low 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. 13. 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 . 14. Enforcement bv 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 of this 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 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. Prior to completion of the Project, 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 \JH\541627.3 01-070902-04706002 -8- 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. 15. 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. 16. 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. 17. Attornevs' 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. 18. 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. 19. California. Governing Law. This Agreement shall be governed by the laws of the State of 20. 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. This Agreement shall not be amended, modified or terminated except upon the written consent of the City and upon the recordation of an amendment hereto duly executed and acknowledged by City and Owner. 21. 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. \JH\541627.3 01-070902-04706002 -9- 22. 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. 23. Assignment. This Agreement may be assigned with the written consent of the City to South County Housing Corporation, a wholly controlled affiliate thereof. 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. 24. 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. IN WITNESS WHEREOF, the City and the Owner have executed this Agreement by duly authorized representatives on the date and year shown below. Address: 7351 Rosanna Street Gilroy, CA 95020-6141 ,.....w.~_~.,. .- Approved As to Form: ;y<~ i/.~~ CITY ATTORNEY Dated~~ Lc 1:;-, 2002 . ) MONTICELLI HOUSING ASSOCIATES, a Limited Partnership By SOUTH COUNTY HOUSING CORPORATION, its General Partner \JH\541627.3 01-070902-04706002 -10- STATE OF CALIFORNIA } SS. COUNTYOF~Gu~ \~ On~"1 ,s.-rt4~ Oar. ' before me, Aoll'~~ . personally appeared :t> ~""NlS. L.OlC.. , ~ersonallY known to me -OR- D proved to me on the basis of satisfactory evidence to be the ~ whose ~@N..subscrioed to the within instrument and acknowledged to me that @W/~ executed the same in ~tmM.authorized ~~), and that by Ghsr/~ s~) on the instrument the p~, or the entity upon behalf of which the .~ acted, executed the instrument. leu -. ::=~~l ~. Notary PublIc . CaIIfclriII _ z Santa CIma Qudr I i~__~~~-~~ STATE OF CALIFO~" } ss. COUNTY OK)CL/u4z C UU, 7) ,;)_ On 1(1 J&, /5" 20m. , before me, t::. IfOAJDll rezu"u, personally appeared -yJ II h /:J Ie sA , I ~ personally known to me -OR--B--~to-me--on-th&-basis-6f-satisf~ evidcRc-e to be the person(S) whose nam~ is/~e subscribedt~ the within instrument and acknowledged to me that he/#/!J1e'y executed the same in . his~/~ authorized capacity(j.es), and that by his!lJlrl'/~ signatureCsf on the instrument the perso~ or the entity upon behalf of which the person0 acted, executed the instrument. /'~1 / . ,'" " i( / c/}C(;(/'-. / _-e SIGNATURE OF NOTARY . RHCNIMPBUI _ CIlI..."L Ilu,.,...,. ..., PubIc. (' . ... ..... CIa CouIlIJ 1IyCamrn. EIpiI8I.bI11.21111 \JH\541627.3 01-070902-04706002 -11- CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. o INDIVIDUAL o CORPORATE OFFICERS(S) Title(s) o PARTNER(S) 0 LIMITED o GENERAL o ATTORNEY-IN-FACT o TRUSTEE(S) o GUARDIAN/CONSERVATOR o OTHER: SIGNER IS REPRESENTING: Name ofPerson(s) or Entity(ies) CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. o INDIVIDUAL o CORPORATE OFFICERS(S) Title(s) o PARTNER(S) 0 LIMITED o GENERAL o ATTORNEY-IN-FACT o TRUSTEE(S) o GUARDIAN/CONSERVATOR o OTHER: SIGNER IS REPRESENTING: Name ofPerson(s) or Entity(ies) EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY [To be attached] \JH\541627.2 01-041704706002 -1- EXHIBIT A (Legal Description) All that certain land situated in the County of Santa Clara, City of Gilroy, State of California, described as follows: Parcels 1 and 2 as shown on the Parcel Map recorded April 18, 2001 in Book 738 of Maps, pages 42, 43 and 44, Santa Clara County Records. - 8 - EXHIBIT A (Legal Description) All that certain land situated in the County of Santa Clara, City of Gilroy, State of California, described as follows: Parcels 1 and 2 as shown on the Parcel Map recorded April 18, 2001 in Book 738 of Maps, pages 42, 43 and 44, Santa Clara County Records. - 8 - EXHIBIT "B" IDENTIFICATION OF UNITS RESERVED FOR LOW INCOME HOUSEHOLDS [To be attached] \JH\541627.2 01-041704706002 -1- EXHIBIT "B" A TT ACHMENT The following units will be reserved for low income households 26 senior apartments 25 multi-family apartments 1 manager's unit (to be maintained as a manager's unit or reserved for low income households) EXHIBIT "c" RENTAL RATE CALCULATION [To be attached] \JH\541627.2 01-041704706002 -1- . . EXHIBIT "c" A TT ACHMENT Rental rates shall be equivalent to the California Tax Credit Allocation Committee (CTCAC) 50% income level rental rates for Santa Clara County. The rental rates shall be revised with every published revision of California Tax Credit Allocation Committee (CTCAC) rental rates.