HomeMy WebLinkAboutAGENDA REPORT 2001 1219 CC REG ITEM 10A7, .
ITS 10-01
of pool
vet �� "�._.mrn•
A a IR N
1. e,.ua.eG
MOORPARK CITY COUNCIL
AGENDA REPORT
B ON VLE5
...6,.._ ,.,, . _.._..,,.
To: Honorable City Council
From: Nancy Burns, Senior Management Analyst
Date: December 7, 2001 (CC Meeting of December 19, 2001)
Subject: CONSIDER AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND AFFORDABLE HOUSING AGREEMENT FOR
ARCHSTONE COMMUNITIES (RPD 97 -1)
BACKGROUND
On June 23, 1999, the City Council approved Residential Planned
Development (RPD) No. 97 -1, for construction of three hundred
twelve (312) apartment units by Archstone Communities. A
Development Agreement was executed July 19, 1999, which provides
for the development of the property, in accordance with
approvals of the project, and the provision of sixty -two (62)
affordable housing units.
The project received a density bonus of twenty -three (23) units
and additional considerations, with regard to parking and other
requirements. When a density bonus is granted, Section 65915(b)
and (c) of the Government Code requires at least ten percent
(100) of the units to be affordable to Very Low Income
households, or twenty percent (200) of the units affordable to
Lower Income households, or fifty percent (500) to be for
"qualifying residents" (Seniors) . The base number of units,
upon which these calculations are made, is the number of units
without consideration of the density bonus, or two hundred
eighty -nine (289) units.
DISCUSSION
The Development Agreement stipulates the preparation of an
Affordable Housing Implementation and Rental Restriction Plan
(the "Plan ") , which is to set forth all items necessary for the
restriction of rents on sixty -two (62) units. The Plan is
�' ? �
Honorable City Council
Date 12/12/01
Page 2
subject to unilateral approval by the Council. An Affordable
Housing Agreement (the "Agreement "), which incorporates the
Plan, is to be executed by the developer and the City.
These affordability documents provide for six (6) units to be
affordable to Very Very Low Income households, defined as
thirty -three percent (330) of County median income, based on
applicable household size; twenty -three (23) units to be
affordable to Very Low Income households, at fifty percent (500)
of County median income; twenty -one (21) units to be affordable
to Low Income households, effectively seventy -three percent
(73o) of County median income, and twelve (12) units to be
affordable to Moderate Income households, at one hundred percent
(1000) of County median income. State law defines Moderate
Income households as those with incomes which do not exceed one
hundred twenty percent (120 %) of median income; this project
proposes to use a lower threshold. The affordability documents
ensure the affordability of the rent - restricted units for the
life of the project.
While the total number of affordable units (62) is the same in
the affordability documents as provided in the Development
Agreement, changes were made in the number of units in certain
income categories. This was necessary in order to satisfy
Density Bonus requirements, discussed briefly under
"Background ". These requirements offer options for providing a
specified number of affordable units; the option selected was to
ensure that twenty percent (20 %) of the pre- density bonus number
of units are affordable to Low Income households. Twenty
percent (200) of the pre- density bonus number of units in the
project (289) is twenty -nine (29) units. That requirement is
satisfied by the six (6) Very Very Low units and the twenty -
three (23) Very Low units. Twelve (12) of the Low Income units
were re- allocated as Moderate Income units, to compensate for
calculating the rent for Low Income units at thirty percent
(300) of sixty percent (60 %) of median income, another density
bonus requirement.
Affordable rent for Very Very Low Income households is defined
as thirty percent (30 %) of thirty -three percent (33 %) of median
income for the appropriate household size, less a reduction for
utility costs; affordable rent for Very Low Income households is
defined as thirty percent (30 %) of fifty percent (50 %) of median
T i
Honorable City Council
Date 12/12/01
Page 3
income for the appropriate household size, less a reduction for
utility costs; and for Low Income households it is defined as
thirty percent (300) of sixty percent (60 %) of median income for
the appropriate household size, less a reduction for utility
costs. This project proposes a standard for Moderate Income
households of thirty percent (30 %) of one hundred percent (1000)
of median income for the appropriate household size, rather than
the State standard of thirty percent (30 %) of one hundred ten
percent (110 %), less a reduction for utility costs. The
attached "Initial Rents for Restricted Units" shows the initial
rents to be charged Very Very Low, Very Low, and Low Income
households. An amount which approximates monthly utilities is
included in the rent calculations. Moderate Income households
will pay market rent, with no reduction for utility allowance,
as that amount is less than Affordable Rent for a Moderate
Income household.
The Plan provides that any tenant in a rent - restricted unit who
becomes ineligible for the rent reduction due to an increase in
income will be able to continue tenancy by paying market rent
for the unit. When that occurs, the next market rate unit of
the appropriate size which becomes available will be designated
a restricted unit.
At any time, the City has the option to secure any of the sixty -
two restricted units that are vacant for the purpose of
assigning its option to eligible households. In addition, the
City may secure up to twenty -five (25) unrestricted vacant units
for the same purpose and would guarantee market rent for these
unrestricted units. No more than six (6) of the twenty -five
(25) unrestricted units would be secured for Very Very Low
Income households; the remaining nineteen (19) unrestricted
units could be secured for Very Low, Low or Moderate Income
households, as the need for such units is determined, at the
time of need, by the City. Households being displaced by City
or Redevelopment Agency action could be eligible for relocation
into these units.
The City has approved the specific units designated to be the
initial restricted units. These units are distributed
throughout the thirteen (13) buildings of the project. Over
time, some units originally designated to be restricted units
may be occupied at market rents, as incomes increase for some
r
Honorable City Council
Date 12/12/01
Page 4
formerly low income households and they choose to continue
tenancy by paying market rents. As that occurs, subject to the
"Unit Allocation" which identifies the number and configuration
of restricted units to be rented or available at each income
level, the owner will rent vacant units in a specific order.
First, with consideration to the size of available units and
household size of prospective tenants, available units will be
rented only to Very Very Low Income Tenants, then to Very Low
Income Tenants, then Low Income Tenants, and lastly to Moderate
Income Tenants.
Annual income recertification will be conducted by the owner to
ensure the ongoing eligibility of tenants of restricted units.
Monthly reporting to the City is required of the owner until the
project is rented up; following that, quarterly reporting is
required.
In the event the project is sold to a new owner, the previous
owner will not be released from its obligations under the Plan
until the proposed purchaser has executed an assumption
agreement.
STAFF RECOMONDATION
1. Approve the attached AffordablE
Rental Restriction Plan; and
2. Approve the attached Affordable
final language approval by the
and Special Legal Counsel.
Attachments: Affordable Housing
Restriction Plan
Housing Implementation and
Housing Agreement, subject to
City Manager, City Attorney,
Implementation and Rental
Affordable Housing Agreement
Initial Rents for Restricted Units
I t
AFFORDABLE HOUSING AGREEMENT
By and Between
THE CITY OF MOORPARK, CALIFORNIA
and
ARCHSTONE SMITH OPERATING TRUST
Dated as of 1, 2001
moor \arch \covl0.wpd
12 -12 -01
I I
TABLE OF CONTENTS
Page
RECITALS.......................... ..............................1
ARTICLE 1. DEFINITIONS AND INTERPRETATION .......................3
1.1 Definitions ........... ..............................3
1.2 Rules of Construction . ..............................5
ARTICLE 2. AFFORDABLE ROUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN ...... ..............................5
ARTICLE 3. TERM AND RECORDATION ... ..............................6
3.1 Term of Agreement ..... ..............................6
3.2 Agreement to be Recorded ............................6
3.3 Termination ........... ..............................6
ARTICLE 4.
DEFAULT;
REMEDIES ..... ..............................6
4.1
An Event
of Default
4.2
Liens
... ..............................6
.................
..............................7
4.3
Costs of
Enforcement
4.4
Remedies
.. ..............................8
Not Exclusive ..............................9
4.5
Enforcement; Specific Performance ...................9
4.6
Right of
Contest ..... .............................9
4.8
Action at
Law; No Remedy Exclusive ..................9
ARTICLE 5. GENERAL PROVISIONS ..... .............................10
5.1 Notice ................ .............................10
5.2 Relationship of Parties ............................10
5.3 No Claims ............. .............................11
5.4 Conflict of Interests . .............................11
5.5 Non - Liability of City Officials, Employees
andAgents ............ .............................11
5.6 Force Majeure ......... .............................11
5.7 Title of Parts and Sections ........................12
5.8 Hold Harmless ......... .............................12
5.9 Rights and Remedies Cumulative .....................12
5.10 Applicable Law ......... .............................13
5.11 Severability ........... .............................13
5.12 Legal Actions .......... .............................13
5.13 Binding Upon Successors .............................13
5.14 Transfer .............. .............................13
5.15 Time of the Essence .... .............................14
5.16 City Approval .......... .............................14
5.17 Complete Understanding of the Parties ...............14
moor \arch \covl0.wpd
12 -12 -01
i
5.18
5.19
Burden and Benefit ..... .............................14
Assessment District .... .............................14
moor \arch \covl0.wpd
12 -12 -01 1 1
IJ J
5.20 Archstone Notice ...... .............................15
5.21 Counterparts .......... .............................15
5.22 Construction and Interpretation of Aqreement .......15
EXHIBITS
Exhibit
No.
1
Legal Description
Exhibit
No.
2
Affordable Housing Implementation and Rental
Restriction Plan
Exhibit
No.
3
Assignment and Assumption Agreement
Exhibit
No.
4
Memorandum of Agreement
moor \arch \cov10.wpd
12 -12 -01 111
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (this "Agreement ") is to be
effective as of
date of actual execution hereof, a n
MOORPARK, a municipal corporation
COMMUNITIES TRUST, a Maryland
( "Owner ").
RECITALS
, 2001, regardless of the
d is by and between THE CITY OF
( "City ") and ARCHSTONE SMITH
real estate investment trust
W I T N E S S E T H:
WHEREAS, the City and Archstone Communities have previously
entered into a Development Agreement dated July 19, 1999, recorded
as Instrument No. 99- 162774 in the Official Records of the County
of Ventura on August 27, 1999 (the "Development Agreement ")
pursuant to which the Owner will develop a 312 -unit multifamily
residential housing complex (the "Project ") on approximately 19.2
acres of land located southwesterly of Los Angeles Avenue and
Moorpark Avenue (the "Property "), described more specifically on
Exhibit "1" attached hereto and incorporated herein by reference,
which is located within the City of Moorpark; and
WHEREAS, the Property and the Project are located within the
City of Moorpark Redevelopment Project Area, adopted by the City
Council of the City of Moorpark under the provisions of the
California Community Redevelopment Law (California Health & Safety
Code sections 33000 et seq.); and
WHEREAS, pursuant to the provisions of California Health &
Safety Code Section 33413(b)(2) (the "Inclusionary Housing
Requirement "), not less than fifteen percent (15o) of all new or
substantially rehabilitated dwelling units which are developed
within a redevelopment project area by an entity other than a
redevelopment agency, are required to be available at affordable
housing cost to persons and families of low or moderate income, and
not less than forty percent (400) of the dwelling units required to
be available at affordable housing cost to persons and families of
low or moderate income are to be available at affordable housing
cost to very low income households; and
WHEREAS, to assist in the production of affordable housing,
the City of Moorpark has granted a density bonus ( "Density Bonus ")
pursuant to California Government Code Section 65915, under which
authority the Owner must construct at least twenty percent (200) of
moor \arch \cov10.wpd
12 -12 -01 1
the total dwelling units in the Project at an affordable housing
cost for lower - income households, or ten percent (100) of such
dwelling units at an affordable housing cost for very low income
households, or fifty percent (500) of such dwelling units at an
affordable housing cost for qualifying residents, as defined in
California Civil Code Section 51.2; and
WHEREAS, as a condition of Project approval and under the
terms of the Development Agreement, Owner has agreed to rent or
lease or hold available for rent or occupancy a certain number of
dwelling units in the Project to be rented to persons or families
of Moderate Income, Low Income or Very Low Income (including Very
Very Low Income) at an Affordable Housing Cost, all as defined
herein, and to enter into an Affordable Housing Agreement with the
City to incorporate the Affordable Housing Implementation and
Rental Restriction Plan (as defined herein) by which such dwelling
units will be restricted for the life of the Project, and to set
forth the method of selecting eligible tenants, tenant eligibility
requirements, the respective roles of the City and Owner and any
other items determined necessary by the City; and
WHEREAS, Owner is willing to enter into certain restrictions
upon the ownership and operation of the Project which will bind the
Project and Owner, its successors and assigns, for the term of this
Agreement. The purpose of this Agreement is to create such
conditions, covenants, restrictions, liens, servitudes, and charges
upon and subject to which the Project and each and every part and
portion thereof shall be occupied, leased and rented. The
provisions of this Agreement shall run for its term with each and
every portion of the Project and shall inure to and pass with each
and every portion thereof and shall apply to and bind any
successors -in- interest of Owner. Each of the provisions hereof are
imposed upon the Project as mutual and reciprocal equitable
servitudes in favor of each and every other portion of the Project.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the City and the Owner hereby agree as follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have
the following meanings unless the context in which they are used
clearly requires otherwise.
moor \arch \cov10.wpd
12 -12 -01 2
"Affordable Housing Cost" shall mean rent plus a reasonable
utility allowance that does not exceed the following:
(a) For a Very Very Low Income Tenant, the product of
thirty percent (300) times thirty -three percent
(330) of the County Median Income adjusted for
family size appropriate for the Unit; and
(b) For a Very Low Income Tenant, the product of thirty
percent (300) times fifty percent (500) of the
County Median Income adjusted for family size
appropriate for the Unit; and
(c) For a Low Income Tenant, the product of thirty
percent (300) times sixty percent (600) of the
County Median Income adjusted for family size
appropriate for the Unit; and
(d) For a Moderate Income Tenant, the product of thirty
percent (300) times one hundred percent (100 %) of
the County Median Income adjusted for family size
appropriate for the Unit, not to exceed an
unrestricted market rent, without including a
utility allowance.
"City" shall mean the City of Moorpark, California, a
municipal corporation.
"County" shall mean Ventura County.
"County Median Income" shall mean the Median Income adjusted
by actual household size as published annually by HUD for the
County, which Median Income levels shall be adjusted concurrently
with publication of adjustment of the same by HUD.
"HUD" shall mean the United States Department of Housing and
Urban Development
"Low Income" or "Lower Income" a household income that does
not exceed eighty percent (80 %) of the County Median Income,
adjusted for household size appropriate to the Unit. The household
income amount for Lower Income households shall be the amount
published by HUD as the Household Income Limits for Ventura County
( "HUD Income Limits ") or such successor information in the event
the referenced published information is no longer available, but in
no event less than seventy -three percent (730) nor more than eighty
percent (800) of the County Median Income. If the HUD Income Limits
moor \arch \cov10.wpd
12 -12 -01 3
�� ,
household income amount is less than 730 of the County Median
Income, it shall be set nevertheless at 730 of the County Median
Income, and if it is more than 800 of the County Median Income, it
shall be set nevertheless at 800 of the County Median Income.
"Low Income Tenants" or "Lower Income Tenants" means
individuals or households qualified on the basis of a
"certification of tenant eligibility" as certified by such
individual or household, who have an adjusted gross income which
does not exceed Low Income.
"Moderate Income" shall mean a household income that does not
exceed one hundred percent (100%) of the County Median Income,
adjusted for family size appropriate for the Unit.
"Moderate Income Tenants" shall mean individuals or households
qualified on the basis of a "certification of tenant eligibility"
as certified by such individual or household, who have an adjusted
gross income which does not exceed Moderate Income.
"Plan" shall mean the Affordable Housing Implementation and
Rental Restriction Plan and Exhibits "A" through "D" of said Plan
attached hereto as Exhibit "2" and incorporated herein by
reference.
"Project" is the 312 -unit multifamily residential rental
apartment complex located on the Property, together with
structures, improvements, equipment, fixtures, and other personal
property owned by the Owner and located on or used in connection
with all such improvements and all functionally related and
subordinate facilities.
"Property" shall mean that real property in the City of
Moorpark, California described as set forth in the Legal
Description attached to this Agreement as Exhibit "1 ".
"Term" shall mean the life of the Project, commencing upon the
date of recordation of a memorandum of this Agreement
(substantially in the form attached hereto as Exhibit No. 4),
unless earlier terminated in accordance with Section 3.3 of this
Agreement.
"Very Low Income" shall mean a household income that does not
exceed fifty percent (50%) of the County Median Income, adjusted
for household size appropriate to the Unit.
moor \arch \cov10.wpd
12 -12 -01 4
"Very Low Income Tenants" means individuals or households
qualified on the basis of a "certification of tenant eligibility"
as certified by such individual or household, who have an adjusted
gross income which does not exceed Very Low Income.
"Very Very Low Income" shall mean a household income that does
not exceed thirty -three (330) of the County Median Income, adjusted
for household size appropriate to the Unit.
"Very Very Low Income Tenants" means individuals or households
qualified on the basis of a "certification of tenant eligibility"
as certified by such individual or household, who have an adjusted
gross income which does not exceed Very Very Low Income.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein,
including the terms defined herein shall include the plural and
vice versa. The use herein of a word of any gender shall include
correlative words of all genders.
1.2.2 Unless otherwise specified, references to
Articles, Sections, and other Subdivisions of this Agreement are to
the designated Articles, Sections, and other Subdivisions of this
Agreement as originally executed. The words "hereof," "herein,"
"hereunder," and words of similar import shall refer to this
Agreement as a whole.
1.2.3 All of the terms and provisions hereof shall be
construed to effectuate the purposes set forth in this Agreement
and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and
sections hereof and the table of contents appended to copies hereof
shall be solely for convenience of reference and shall not affect
the meaning, construction, or effect of the provisions hereof.
ARTICLE 2. AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN
Owner covenants and agrees for itself, its heirs, its
administrators, its executors, its successors, its assigns and
every successor in interest to fee title of the Project, the
Property or any part thereof, that the Owner and such heirs,
administrators, executors, successors, assigns and successors in
interest shall comply with all of the terms, provisions, easements,
moor \arch \cov10.wpd
12 -12 -01 5
conditions, covenants, restrictions, liens, servitudes set forth in
the Plan.
ARTICLE 3. TERM AND RECORDATION
3.1 Term of Agreement. This Agreement shall remain in full
force and effect for the life of the Project, commencing from the
date of recordation of a memorandum of this Agreement, unless
earlier terminated in accordance with this Agreement.
3.2 Agreement to be Recorded. Owner represents, warrants,
and covenants that it will cause a memorandum of this Agreement to
be recorded in the office of the County Recorder of Ventura County,
California, and that this Agreement and the Plan shall be senior in
priority to any lien, encumbrance or other matter of record except
as approved by City. The Owner shall pay all fees and charges in
connection with any such recordation.
3.3 Termination. This Agreement shall terminate: (a) upon
mutual agreement of the parties; and (b) in the event of damage or
destruction of the Project for which there are insufficient
insurance proceeds to rebuild the Project to its condition prior to
the damage or destruction.
ARTICLE 4. DEFAULT; REMEDIES
4.1 An Event of Default. Each of the following shall
constitute an "Event of Default" by the Owner of this Agreement:
4.1.1 Failure by the Owner to duly perform, comply with
and observe any of the conditions, terms, or covenants of the
Development Agreement, the Plan or this Agreement, if such failure
remains uncured thirty (30) days after written notice of such
failure from the City to the Owner in the manner provided herein
or, with respect to a default that cannot be cured within thirty
(30) days, if the Owner fails to commence such cure within such
thirty (30) day period or thereafter fails to diligently and
continuously proceed with such cure to completion; provided,
however, that in no event shall the City be precluded from
exercising remedies if an Event of Default is not cured within
ninety (90) days after the first notice of default is given,
subject to the provisions of Paragraph 5.6 of this Agreement. If
a different period or notice requirement is specified under any
other section of this Agreement, then the specific provision shall
control.
moor \arch \cov10.wpd
12 -12 -01 6
4.1.2 Any representation or warranty contained in this
Agreement or in any certificate or report submitted to the City by
Owner proves to have been incorrect in any material respect when
made.
4.1.3 A court having jurisdiction shall have made or
rendered a decree or order (a) adjudging Owner to be bankrupt or
insolvent; (b) approving as properly filed a petition seeking
reorganization of Owner or seeking any arrangement on behalf of the
Owner under the bankruptcy law or any other applicable debtor's
relief law or statute of the United States or of any state or other
jurisdiction; (c) appointing a receiver, trustee, liquidator, or
assignee of the Owner in bankruptcy or insolvency or for any of its
properties; or (d) directing the winding up or liquidation of the
Owner, providing, however, that any such decree or order described
in any of the foregoing subsections shall have continued unstayed
or undischarged for a period of ninety (90) days.
4.1.4 The Owner shall have assigned its assets for the
benefit of its creditors or suffered a sequestration or attachment
or execution on any substantial part of its property, unless the
property so assigned, sequestered, attached, or executed upon shall
have been returned or released within ninety (90) days after such
event (unless a lesser time period is permitted for cure hereunder)
or prior to sale pursuant to such sequestration, attachment, or
execution. If the Owner is diligently working to obtain a return
or release of the property and the City's interest hereunder is not
imminently threatened in the City's reasonable business judgment,
then the City shall not declare a default under this subsection.
4.1.5 The Owner shall have voluntarily suspended its
business or dissolved.
4.1.6 Should there occur any default declared by any
lender under any loan document or deed of trust relating to any
loan made in connection with the Project or Property, which loan is
secured by a deed of trust or other instrument of record.
4.2 Liens.
4.2.1 This Agreement and the Plan shall be senior in
priority to any lien or encumbrance on the Property and all liens
and encumbrances shall be subordinate and subject to this Agreement
and the Plan.
4.2.2 Owner shall pay and promptly discharge when due,
at Owner's cost and expense, all liens, encumbrances and charges
moor \arch \cov10.wpd
12 -12 -01 7
upon the Project or the Property, or any part thereof or interest
therein (except the lien of any mortgage, deed of trust or other
recorded instrument securing any construction or permanent
financing for the Project, which shall, in any event, be junior and
subordinate to this Agreement), provided that the existence of any
mechanic's, laborer's, materialman's, supplier's, or vendor's lien
or right thereto shall not constitute a violation of this Section
if payment is not yet due under the contract which is the
foundation thereof and if such contract does not postpone payment
for more than forty -five (45) days after the performance thereof.
Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten
days after service of a stop notice or ninety days after recording
of a mechanic's lien, Owner shall deposit with City a bond or other
security reasonably satisfactory to City in such amounts as City
shall reasonably require, but no more than the amount required to
release the lien under California law and provided further that
Owner shall thereafter diligently proceed to cause such lien,
encumbrance or charge to be removed and discharged, and shall, in
any event, cause such lien, encumbrance or charge to be removed or
discharged not later than sixty (60) days prior to any foreclosure
sale. If Owner shall fail either to remove and discharge any such
lien, encumbrance or charge or to deposit security in accordance
with the preceding sentence, if applicable, then, in addition to
any other right or remedy of City, City may, but shall not be
obligated to, discharge the same, without inquiring into the
validity of such lien, encumbrance or charge nor into the existence
of any defense or offset thereto, either by paying the amount
claimed to be due, or by procuring the discharge of such lien,
encumbrance or charge by depositing in a court a bond or the amount
or otherwise giving security for such claim, in such manner as is
or may be prescribed by law. Owner shall, immediately upon demand
therefor by City, pay to City an amount equal to all costs and
expenses incurred by City in connection with the exercise by City
of the foregoing right to discharge any such lien, encumbrance or
charge. To the extent not paid, all costs and expenses paid by the
City shall be a lien on the Property pursuant to Civil Code Section
2881.
4.3 Costs of Enforcement. If any Event of Default occurs,
City may employ an attorney or attorneys to protect its rights
hereunder. Subject to California Civil Code Section 1717, Owner
promises to pay to City, on demand, the fees and expenses of such
attorneys and all other costs of enforcing the obligations secured
hereby including without limitation, recording fees, receiver's
fees and expenses, and all other expenses of whatever kind or
nature, incurred by City in connection with the enforcement of the
moor \arch \cov10.wpd
12 -12 -01 8
obligations secured hereby, whether or not such enforcement
includes the filing of a lawsuit.
4.4 Remedies Not Exclusive. City shall be entitled to
enforce payment and performance of any indebtedness or obligation
of Owner arising under this Agreement and to exercise all rights
and powers under this Agreement or any law now or hereafter in
force, notwithstanding some or all of the said indebtedness and
obligations secured hereby may now or hereafter be otherwise
secured, whether by guaranty, mortgage, deed of trust, pledge,
lien, assignment or otherwise. Neither the acceptance of this
Agreement nor its enforcement by court action shall prejudice or in
any manner affect City's right to realize upon or enforce any other
security now or hereafter held by City, it being agreed that City
shall be entitled to enforce this Agreement and any other security
now or hereafter held by City in such order and manner as it may in
its absolute discretion determine. No remedy herein conferred upon
or reserved to City is intended to be exclusive of any other remedy
herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by this Agreement to the City
may be exercised, concurrently or independently, from time to time
and as often as may be deemed expedient by the City, and the City
may pursue inconsistent remedies.
4.5 Enforcement; Specific Performance.
4.5.1 The City shall have the right to mandamus or
other suit, action or proceeding at law or in equity to require the
Owner to perform its obligations and covenants under this Agreement
or to enjoin acts or things which may be unlawful or in violation
of the provisions hereof.
4.6 Right of Contest. The Owner shall have the right to
contest in good faith any claim, demand, levy, or assessment the
assertion of which would constitute an Event of Default hereunder.
Any such contest shall be prosecuted diligently and in a manner
unprejudicial to the City or the rights of the City hereunder.
4.7 Action at Law; No Remedy Exclusive. The City may take
whatever action at law or in equity as may be necessary or
desirable to enforce performance and observance of any obligation,
agreement or covenant of the Owner under this Agreement. No remedy
herein conferred upon or reserved by the City is intended to be
exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement or now or hereafter
moor \arch \cov10.wpd
12 -12 -01 9
existing at law, in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver of
such right or power, but any such right or power may be exercised
from time to time and as often as City may deem expedient. In
order to entitle the City to exercise any remedy reserved to it in
this Agreement, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required or required by
law to be given.
ARTICLE 5. GENERAL PROVISIONS
5.1 Notice. All notices (other than telephone notices) ,
certificates or other communications (other than telephone
communications) required or permitted hereunder shall be suffi-
ciently given and should be deemed given when personally delivered
or when sent by telegram, or when sent by facsimile transmission
(if properly confirmed in writing), or forty -eight (48) hours
following mailing by registered or certified mail, postage prepaid,
or twenty -four hours following transmission of such notice by
express mail, Federal Express or similar carriers, addressed as
follows:
If to the City:
The City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
If to the Owner:
Archstone Smith Operating Trust
7670 S. Chester Street, Suite 100
Englewood, CO 80112
Attention: General Counsel
5.2 Relationship of Parties. Nothing contained in this
Agreement shall be interpreted or understood by any of the parties,
or by any third persons, as creating the relationship of employer
and employee, principal and agent, limited or general partnership,
or joint venture between the City and the Owner or the Owner's
agents, employees or contractors, and the Owner shall at all times
be deemed an independent contractor and shall be wholly responsible
for the manner in which it or its agents, or both, perform the
services required of it by the terms of this Agreement for the
operation of the Project. The Owner has and hereby retains the
moor \arch \cov10.wpd
12 -12 -01 10
3�
0
right to exercise full control of employment, direction, compensa-
tion and discharge of all persons assisting in the performance of
services hereunder. In regards to the on -site operation of the
Project, the Owner shall be solely responsible for all matters
relating to payment of its employees, including compliance with
Social Security, withholding and all other laws and regulations
governing such matters. The Owner agrees to be solely responsible
for its own acts and those of its agents and employees.
5.3 No Claims. Nothing contained in this Agreement shall
create or justify any claim against the City by any person the
Owner may have employed or with whom the Owner may have contracted
relative to the purchase of materials, supplies or equipment, or
the furnishing or the performance of any work or services with
respect to the operation of the Project or the Property.
5.4 Conflict of Interests. No member, official or employee
of the City shall make any decision relating to this Agreement
which affects his or her personal interests or the interests of any
corporation, partnership or association in which he or she is
directly or indirectly interested.
5.5 Non - Liability of City Officials, Employees and Agents.
No member, official, employee, agent or attorney of the City shall
be personally liable to the Owner, or any successor in interest, in
the event of any default or breach by the City or for any amount
which may become due to the Owner or successor or on any obligation
under the terms of this Agreement.
5.6 Force Majeure. Whenever Owner is required to perform an
act under this Agreement by a certain time, said time shall be
deemed extended so as to take into account events of force majeure.
As used herein "force majeure" shall mean a delay in Owner's
performance hereunder due to acts of God, fire, earthquake, flood,
extreme weather conditions, explosions, war, invasion,
insurrection, riot, mob violence, sabotage, acts of terrorism,
vandalism, malicious mischief, inability to procure or general
shortage of labor, equipment, facilities, materials or supplies in
the open market, failure of transportation, strikes, lockouts,
actions of labor unions, third party litigation, condemnation,
requisition, governmental restrictions including inability or delay
in obtaining government consents or permits, laws or orders of
governmental, civil, military or naval authorities, or any other
cause, whether similar or dissimilar to the foregoing, not within
Owner's control, other than lack of or inability to procure monies
to fulfill its commitments or obligations under this Agreement.
moor \arch \cov10.wpd
12 -12 -01 1 1
5.7 Title of Parts and Sections. Any titles of the parts,
sections or subsections
convenience of reference
construing or interpreting
of this Agreement are inserted for
only and shall be disregarded in
any part of its provision.
5.8 Hold Harmless. Except as such claims may arise from
gross negligence or willful misconduct by the City, if any person
or entity performing work for the Owner on the Project or the
Property shall assert any claim against the City on account of any
damage alleged to have been caused by reason of acts of negligence
of the Owner, the Owner shall defend at its own expense any suit
based upon such claim; and if any judgment or claims against the
City shall be allowed, the Owner shall pay or satisfy such judgment
or claim and pay all costs and expenses in connection therewith.
Nothing herein stated shall be interpreted as a prohibition
against the Owner seeking indemnification (either contractually or
as a matter of law) from any third person or entity.
In addition, the Owner shall defend the City (with counsel
reasonably approved by the City) against any claims or litigation
of any nature whatsoever brought by third parties and directly or
indirectly arising from the Owner's performance of its obligations
under this Agreement, and in the event of settlement, compromise or
judgment hold the City free and harmless therefrom.
5.9 Rights and Remedies Cumulative. Except as otherwise
expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise or failure to exercise one
or more of such rights or remedies by either party shall not
preclude the exercise by it, at the same time or different times,
of any right or remedy for the same default or any other default by
the other party. No waiver of any default or breach by the Owner
hereunder shall be implied from any omission by the City to take
action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than
the default specified in the waiver, and such wavier shall be
operative only for the time and to the extent therein stated.
Waivers of any covenant, term, or condition contained herein shall
not be construed as a waiver of any subsequent breach of the same
covenant, term or condition. The consent or approval by the City
to or of any act by the Owner requiring further consent or approval
shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar act. The exercise of any
right, power, or remedy shall in no event constitute a cure or a
waiver of any default under this Agreement, nor shall it invalidate
any act done pursuant to notice of default, or prejudice the City
in the exercise of any right, power, or remedy hereunder.
moor \arch \cov10.wpd
12 -12 -01 12
5.10 Applicable Law. This Agreement shall be interpreted
under and pursuant to the laws of the State of California.
5.11 Severability. If any term, provision, covenant or
condition of this Agreement is held in a final disposition by a
court of competent jurisdiction to be invalid, void or unenforce-
able, the remaining provisions shall continue in full force and
effect unless the rights and obligations of the parties have been
materially altered or abridged by such invalidation, voiding or
unenforceability.
5.12 Legal Actions. In the event any legal action is
commenced to interpret or to enforce the terms of this Agreement or
to collect damages as a result of any breach thereof, the party
prevailing in any such action shall be entitled to recover against
the party not prevailing all reasonable attorneys' fees and costs
incurred in such action (including all legal fees incurred in any
appeal or in any action to enforce any resulting judgment). Such
legal actions must be instituted in the Superior Court of the
County of Ventura, State of California, in any other appropriate
court of that county, or in the United States District Court for
the Central District of California.
5.13 Binding Upon Successors. This Agreement and the Plan
shall run with the land and be binding upon and inure to the
benefit of the heirs, administrators, executors and assigns of each
of the parties, and successors in interest of fee title to the
Project and the Property. Any reference in this Agreement to an
Owner shall be deemed to apply to any successor, heir, administra-
tor, executor or assign of such party who has acquired a fee
interest in the Project or Property.
5.14 Transfer. Owner shall provide the City with prior written
notice of any sale or transfer of the Project or the Property.
Subject to this Section 5.14, upon the sale or transfer of all of
the Owner's interest in the Project and the Property, that Owner
shall be released from its obligations under this Agreement arising
on or before the effective date of the sale or transfer, provided
that the Owner prior to the sale or transfer delivers to City a
written assignment and assumption agreement substantially in the
form of Exhibit "3" attached hereto (the "Assignment and Assumption
Agreement "), duly executed by the purchaser or transferee and
notarized by a notary public, whereby the purchaser or transferee
expressly assumes the obligations of Owner under this Agreement and
the Plan. Failure to provide a written Assignment and Assumption
Agreement hereunder shall not negate, modify or otherwise affect
moor \arch \cov10.wpd
12 -12 -01 13
the liability of the purchaser or transferee pursuant to this
Agreement. Nothing contained herein shall be deemed to grant to the
City discretion to approve or deny any such sale or transfer;
provided, that no Owner shall be released from its obligations
under this Agreement until the duly executed Assignment and
Assumption Agreement has been delivered to and executed by the
City. Notwithstanding anything in this Section 5.14 to the
contrary, no Owner shall be released from its obligations under
this Agreement if, at the time of the sale or transfer of the
Project or the Property, there is an uncured Event of Default as
set forth in Section 4.1 hereof.
5.15
Agreement,
5.16
Agreement
delayed.
Time of the Essence. In all matters under this
time is of the essence.
City Approval. Any approvals required under this
or the Plan shall not be unreasonably withheld or
5.17 Complete Understanding of the Parties. The Development
Agreement, this Agreement and the Plan and the other attached
Exhibits constitute the entire understanding and agreement of the
parties with respect to the matters described herein. In the event
of any conflict between this Agreement, the Plan and /or the
Development Agreement, the terms of the Plan shall take precedence
over the terms of this Agreement and the Development Agreement and
the terms of this Agreement shall take precedence over the terms of
the Development Agreement.
5.18 Burden and Benefit. City and the Owner hereby declare
their understanding and intent of the burden of the covenants set
forth herein touching and concerning the Project and the Property,
in that Owner's legal interest in the Project and the Property is
rendered less valuable thereby. City and Owner hereby declare
their understanding and intent that the covenants, reservations,
and restrictions set forth herein directly benefit the land (a) by
enhancing and increasing the enjoyment and use of the Project and
the Property by Very Very Low Income Tenants, Very Low Income
Tenants, Low Income Tenants and Moderate Income Tenants, (b) by
providing certainty to the Owner regarding the development of the
Property pursuant to the Development Agreement, and (c) by
furthering the public purposes advanced by the Redevelopment Plan
for the City of Moorpark Redevelopment Project Area.
5.19 Assessment District. Owner agrees to cast affirmative
ballots for the formation of one or more assessment districts with
the power to levy assessments for the maintenance of parkway and
moor \arch \cov10.wpd
12 -12 -01 14
median landscaping, street lighting, and parks maintenance and any
increase in assessments for one or more of the purposes referenced
in this sentence.
5.20 Archstone Notice. In accordance with the Declaration of
Trust of Archstone Communities Trust, a Maryland real estate
investment trust, notice is hereby given that all persons dealing
with Archstone may look only to the assets of Archstone for the
enforcement of any claim against Archstone, as none of the
trustees, officers, employees or shareholders of Archstone assume
any personal liability for obligations entered into, by or on
behalf of Archstone.
5.21 Counterparts. This Agreement and the Plan may be executed
in counterparts, which together will be one agreement.
5.22 Construction and Interpretation of Agreement. The
parties hereto acknowledge and agree that this Agreement and the
Plan have been prepared jointly by the parties and have been the
subject of arm's length and careful negotiation over a considerable
period of time, that each party has reviewed this Agreement and the
Plan with legal counsel, and that each party has the requisite
experience and sophistication to understand, interpret and agree to
the particular language of the provisions of this Agreement and the
Plan. Accordingly, in the event of an ambiguity in or dispute
regarding the interpretation of this Agreement or the Plan,
notwithstanding Civil Code Section 1654, this Agreement and the
Plan shall not be interpreted or construed against the party
preparing it, and instead other rules of interpretation and
construction shall be utilized.
WHEREFORE, the parties have executed this Agreement as of the
date first -above written.
THE CITY OF MOORPARK
Name:
Title:
APPROVED AS TO FORM:
KANE, BALLMER & BERKMAN
Special Counsel to the City
moor \arch \cov10.wpd
12 -12 -01 15
Glenn F. Wasserman
ARCHSTONE SMITH OPERATING TRUST
Sts
Name:
Title
moor \arch \covl0.wpd
12 -12 -01 16
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
Legal Description
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
Parcel B, of Parcel Map No. 3118 in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28, Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said County.
EXCEPT 50 percent of all oil, gas, petroleum, hydrocarbon and any
other kindred substances in and under a portion of said land,
except in an area beginning at the surface of said land and
continuing straight down toward the center of the earth 500 feet as
reserved by Hardy Charles, a single man, in deed recorded August
27, 1956, in Book 1437, Page 482, Official Records.
ALSO EXCEPT 25 percent of all oil, gas, petroleum, hydrocarbon and
any other kindred substances in an under a portion of said land
except an area beginning at the surface of said land and continuing
straight down toward the center of the earth 500 feet as reserved
by Hilma S. Paige, a widow, in deed recorded October 7, 1958, Book
1660 Page 460, Official Records.
PARCEL 2:
An easement for ingress and egress ov
Parcel "A ", of Parcel Map No. 3118 in t
of Ventura, State of California, as sh
Book 28 Pages 59 and 60 of Parcel Maps,
Recorder of said county, as provided in
1979 in Book 5422, Page 602 of Official
PARCEL 3:
er the Easterly 60 feet of
he City of Moorpark, County
own on Parcel Map filed in
in the office of the County
the deed recorded June 22,
Records of said county.
An easement for road purposes over the Westerly 30 feet of Parcel
"A" of Parcel Map No. 3118, in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28 Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said county, as provided in the deed recorded June 22,
1979 in Book 5422, Page 602 of Official Records of said county.
EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
Affordable Housing Implementation and Rental Restriction Plan
[behind this page]
EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
[BEHIND THIS PAGE]
EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
MEMORANDUM OF AGREEMENT
[BEHIND THIS PAGE]
CITY OF MOORPARK
AFFORDABLE HOUSING IMPLEMENTATION
AND RENTAL RESTRICTION PLAN
moor \arch \plan9_wpd
12 -12 -01
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INTERPRETATION .......................1
1.1 Definitions ........... ..............................1
1.2 Rules of Construction . ..............................4
ARTICLE 2.
2.1
2.2
2.3
2.4
2.5
RENTAL RESTRICTIONS ... ..............................5
Purpose of Restrictions .............................5
Restricted Units ...... ..............................5
Allocation of Restricted Units . .....................7
Rent -Up Periods ....... ..............................8
Distribution of Restricted Units; Parking Spaces ....9
2.6
Affordable Rent ....... .............................10
2.7
Income Recertification; Rent Increases .............10
2.8
Increased Income of Occupying Households ...........11
2.9
Specific Enforcement of Affordability
Restrictions .......... .............................12
2.10
City's Option to Place Tenants .....................13
2.11
Reporting Requirements .............................15
ARTICLE 3.
GENERALLY APPLICABLE REQUIREMENTS ...................
16
3.1
General Use Restrictions ...........................16
3.2
Residential Rental Property ........................16
3.3
Lease Provisions for Restricted Units ..............17
3.4
Security Deposits ..... .............................18
3.5
Additional Information; Books and Records ..........18
3.6
Hazardous Materials ... .............................18
3.6.1 Definitions .... .............................18
3.6.2 Certain Covenants and Agreements ............19
3.7
Indemnity ............. .............................20
3.8
No Limitation ......... .............................21
3.9
Management Agent ...... .............................21
3.10
Day -to -Day Management Responsibility ...............22
3.11
Insurance Requirements . .............................22
3.11.1 Required Coverage ..........................22
3.11.2 General Requirements .......................23
3.11.3 Additional Insured .........................24
3.11.4 Certificates of Insurance ..................24
ARTICLE 4.
OPERATIONS ............ .............................24
4.1
Staffing Arrangements . .............................24
4.2
Initial Leasing, Rental and Occupancy Procedures ...25
ARTICLE 5. MAINTENANCE ............ .............................25
moor \arch \p1an9.wpd
12 -12 -01 1
r.'9 ,
5.1 Maintenance, Repair, Alterations ...................25
5.2 Disclaimer ............ .............................27
5.3 Mechanics Liens ....... .............................27
ARTICLE 6. DEFAULT; REMEDIES ...... .............................27
6.1 An Event of Default ... .............................27
6.2 Liens ................. .............................28
6.3 Costs of Enforcement .. .............................29
6.4 Enforcement; Specific Performance ..................30
6.5 Right of Contest ...... .............................30
6.6 Action at Law; No Remedy Exclusive .................30
ARTICLE 7. GENERAL PROVISIONS _�1
7.1
Force Majeure ... ............................... ...31
7.2
Title of Parts and Sections ........................31
7.3
Hold Harmless ......... .............................31
7.4
Rights and Remedies Cumulative .....................32
7.5
Applicable Law ........ .............................32
7.6
Severability .......... .............................32
7.7
Legal Actions ......... .............................33
7.8
Intentionally Omitted . .............................33
7.9
City Approval ......... .............................34
7.10
Administrative Fee .... .............................34
EXHIBIT ALegal Description ... .........................:...36
EXHIBIT BCERTIFICATION OF TENANT ELIGIBILITY ..............37
INCOME VERIFICATION(for employed persons) .................42
INCOME VERIFICATION(for self - employed persons) ............ 43
EXHIBIT CCERTIFICATE OF CONTINUING PROGRAM COMPLIANCE ..... 44
EXHIBIT DTYPE OF UNIT, NUMBER OF UNITS, HOUSEHOLD SIZE
ADJUSTMENT AND UTILITY ALLOWANCE ..........................46
moor \arch \p1an9.wpd
12 -12 -01
ii
moor\arch\plan9.wpd
12-12-01
moor\arch\plan9.wpd
12-12-01 iv
1 1s_ " �-
41, -
AFFORDABLE HOUSING IMPLEMENTATION
AND RENTAL RESTRICTION PLAN
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have
the following meanings unless the context in which they are used
clearly requires otherwise.
"Affordability Agreement" shall mean that certain Affordable
Housing Agreement to be entered into between Owner and the City the
purpose of which is to implement this Plan, to which this Plan is
attached as Exhibit No. 2.
"Affordable Housing Cost" shall mean rent plus a reasonable
utility allowance that does not exceed the following:
(a) For a Very Very Low Income Tenant, the product of
thirty percent (30a) times thirty -three percent
(330) of the County Median Income adjusted for
family size appropriate for the Unit;
(b) For a Very Low Income Tenant, the product of thirty
percent (300) times fifty percent (50a) of the
County Median Income adjusted for family size
appropriate for the Unit;
(c) For a Low Income Tenant, the product of thirty
percent (300) times sixty percent (600) of the
County Median Income adjusted for family size
appropriate for the Unit; and
(d) For a Moderate Income Tenant, the product of thirty
percent (300) times one hundred percent (1000) of
the County Median Income adjusted for family size
appropriate for the Unit, not to exceed an
unrestricted market rent, without including a
utility allowance.
"City" shall mean the City of Moorpark, California, a
municipal corporation.
"Consumer Price Index" shall mean the Consumer Price Index- -
All Urban Consumers for Los Angeles /Orange /Riverside metropolitan
area, as published from time to time by the United States
Department of Labor or, in the event such index is no longer
moor \arch \p1an9.wpd
12 -12 -01 1
published or otherwise available, such replacement index as may be
agreed upon by Owner and City. All calculations relating to the
Consumer Price Index shall be made using the month of February.
"County" shall mean Ventura County.
"County Median Income" shall mean the Median Income adjusted
by actual household size as published annually by HUD for the
County, which Median Income levels shall be adjusted concurrently
with publication of adjustment of the same by HUD.
"Density Bonus" shall mean the density bonus granted by the
City to Owner in connection with the Project pursuant to California
Government Code Section 65915, under which authority the Owner must
construct at least twenty percent (20 %) of the total dwelling units
in the Project at an affordable housing cost for lower - income
households, or ten percent (100) of such dwelling units at an
affordable housing cost for very low income households, or fifty
percent (50 %) of such dwelling units at an affordable housing cost
for qualifying residents, as defined in California Civil Code
Section 51.2.
"Development Agreement" shall mean that certain Development
Agreement dated July 19, 1999, recorded as Instrument No. 99- 162774
in the Official Records of the County of Ventura on August 27,
1999.
"HUD" shall mean the United States Department of Housing and
Urban Development.
"Initial Rent -Up" shall mean the period between the issuance
of a certificate of occupancy for the first residential unit and
"Stabilization" (as defined below).
"Low Income" or "Lower Income" shall mean a household income
that does not exceed eighty percent (80 %) of the County Median
Income, adjusted for household size appropriate to the Unit. The
household income amount for Lower Income households shall be the
amount published by HUD as the Household Income Limits for Ventura
County ( "HUD Income Limits ") or such successor information in the
event the referenced published information is no longer available,
but in no event less than seventy -three percent (73 %) nor more than
eighty percent (80 %) of the County Median Income. If the HUD Income
Limits household income amount is less than 73% of the County
Median Income, it shall be set nevertheless at 73% of the County
Median Income, and if it is more than 80% of the County Median
Income, it shall be set nevertheless at 80% of the County Median
moor \arch \p1an9.wpd
12 -12 -01 2
Income.
"Low Income Tenants" or "Lower Income Tenants" shall mean
individuals or households qualified on the basis of a
"certification of tenant eligibility" as certified by such
individual or household, who have an adjusted gross income which
does not exceed Low Income.
"Moderate Income" shall mean a household income that does not
exceed one hundred percent (1000) of the County Median Income,
adjusted for family size appropriate for the Unit.
"Moderate Income Tenants" shall mean individuals or households
qualified on the basis of a "certification of tenant eligibility"
as certified by such individual or household, who have an adjusted
gross income which does not exceed Moderate Income.
"Owner" shall mean Archstone Smith Operating Trust, a Maryland
real estate investment trust, any permitted assignee of its rights,
powers and responsibilities, or any successor in interest to fee
title to the Project or Property.
"Plan" shall mean this Affordable Housing Implementation and
Rental Restriction Plan.
"Project" is the 312 -unit multifamily residential rental
apartment complex located on the Property, together with
structures, improvements, equipment, fixtures, and other personal
property owned by the Owner and located on or used in connection
with all such improvements and all functionally related and
subordinate facilities.
"Property" shall mean that real property in the City of
Moorpark, California described as set forth in the Legal
Description attached to this Plan as Exhibit "A ".
"Restricted Units" shall mean the Units occupied by or held
vacant and available for occupancy by Moderate Income Tenants, Low
Income Tenants, Very Low Income Tenants and Very Very Low Income
Tenants.
"Stabilization" shall mean the time at which the Project
achieves ninety -three percent (930) occupancy.
"Term" shall mean the life of the Project, commencing upon the
date of recordation of the Affordability Agreement or a memorandum
thereof.
moor \arch \p1an9.wpd
12 -12 -o1 3
"Unit Allocation" shall mean the allocation of the Restricted
Units as set forth in greater detail in Sections 2.3.1, 2.3.2,
2.3.3, 2.3.4 and Exhibit "D ".
"Units" shall mean the residential apartment units in the
Project.
"Utility Allowance" shall mean the utility allowance set forth
in the chart attached to this Plan as Exhibit "D ".
"Very Low Income" shall mean a household income that does not
exceed fifty percent (500) of the County Median Income, adjusted
for household size appropriate to the Unit.
"Very Low Income Tenants" shall mean individuals or households
qualified on the basis of a "certification of tenant eligibility"
as certified by such individual or household, who have an adjusted
gross income which does not exceed Very Low Income.
"Very Very Low Income" shall mean a household income that does
not exceed thirty -three (330) of the County Median Income, adjusted
for household size appropriate to the Unit.
"Very Very Low Income Tenants" shall mean individuals or
households qualified on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have
an adjusted gross income which does not exceed Very Very Low
Income.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein,
including the terms defined herein shall include the plural and
vice versa. The use herein of a word of any gender shall include
correlative words of all genders.
1.2.2 Unless otherwise specified, references to
Articles, Sections, and other Subdivisions of this Plan are to the
designated Articles, Sections, and other Subdivisions of this Plan
as originally executed. The words "hereof," "herein," "hereunder,"
and words of similar import shall refer to this Plan as a whole.
1.2.3 All of the terms and provisions hereof shall be
construed to effectuate the purposes set forth in this Plan and to
sustain the validity hereof.
moor \arch \p1an9.wpd
12 -12 -01 4
1.2.4 Headings or titles of the several articles and
sections hereof and the table of contents appended to copies hereof
shall be solely for convenience of reference and shall not affect
the meaning, construction, or effect of the provisions hereof.
ARTICLE 2. RENTAL RESTRICTIONS
The terms, conditions and provisions of this Article 2 shall
apply only to the Restricted Units, and shall apply for the entire
Term of this Plan.
2.1 Purpose of Restrictions. The City is required pursuant
to California Health and Safety Code Section 33413(b) (affordable
housing production) and Government Code Section 65915 to impose
certain low and moderate income and very low income housing
occupancy rent restrictions on the Project and the Property. The
provisions of this Plan are intended to carry out and supersede
those restrictions in accordance with the terms of the Development
Agreement.
2.2 Restricted Units.
2.2.1 At least sixty -two (62) Units in the Project
(the "Restricted Units ") shall be occupied or available for
occupancy by Moderate Income Tenants, Low Income Tenants, Very Low
Income Tenants and Very Very Low Income Tenants on a continuous
basis. The allocation of Restricted Units (the "Unit Allocation ")
is more specifically set forth in Sections 2.3.1, 2.3.2, 2.3.3 and
2.3.4 and Exhibit "D" hereof. As specified in Section 2.11, Owner
will advise City on an annual or other periodic basis in writing of
the number of Restricted Units occupied by Moderate Income Tenants,
Low Income Tenants, Very Low Income Tenants and Very Very Low
Income Tenants by delivery of a certificate in the form specified
by the City, which is attached hereto as Exhibit "C ".
2.2.2 For the purposes of this Plan, a Unit occupied
by an individual or household who, at the commencement of the
occupancy was a Moderate Income Tenant, Low Income Tenant, or Very
Low Income Tenant or Very Very Low Income Tenant, as applicable, is
treated as occupied by a tenant in that income category during such
tenant's occupancy of such Unit until such tenant ceases to be
qualified as a Moderate Income Tenant, Low Income Tenant, Very Low
Income Tenant or Very Very Low Income Tenant, as the case may be,
subject to the provisions of Section 2.8 below.
2.2.3 Moreover, a Unit occupied by a Very Very Low
Income Tenant, Very Low Income Tenant, Low Income Tenant or
Moderate Income Tenant shall be deemed, upon termination of
moor \arch \p1an9.wpd
12 -12 -01 5
occupancy by such tenant (whether voluntarily or involuntarily), to
be continuously occupied by a tenant in such income category until
re- occupied other than for a temporary period, at which time the
classification of the Unit shall be redetermined. Owner shall use
commercially reasonable efforts to prevent such temporary periods
from exceeding sixty (60) days. Owner will also obtain and
maintain on file such Certifications of Tenant Eligibility in form
similar to Exhibit "B" attached hereto and incorporated herein by
reference, for each Moderate Income Tenant, Low Income Tenant, Very
Low Income Tenant and Very Very Low Income Tenant as the City may,
from time to time, require. Owner shall make a good faith effort
to verify that the income provided by an applicant in an income
certification is accurate by reviewing any one of the following
documents which shall be provided by the applicant:
(a) A pay stub for the most recent pay period;
(b) An income tax return for the most recent tax
year;
(c) An income verification form from the
applicant's current employer;
(d) 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 those
agencies; or
(e) If the applicant is unemployed and has no tax
return, another form of independent
verification.
2.2.4 [INTENTIONALLY OMITTED]
2.2.5 The Owner shall include provisions in leases or
rental agreements for all Restricted Units which authorize the
Owner to immediately terminate the tenancy of any tenant occupying
a Restricted Unit where one or more of such tenants have
misrepresented any fact material to the qualification of such an
individual or household as a Very Very Low Income Tenant, Very Low
Income Tenant, Low Income Tenant or Moderate Income Tenant and /or
for qualification for occupancy of a Restricted Unit. Each lease
or rental agreement for a Restricted Unit shall also provide that
the tenants of such Restricted Unit shall be subject to annual
certification or recertification of income, as required by the
City, and shall be subject to rental increases in accordance with
moor \arch \p1an9.wpd
12 -12 -01 6
Section 2.7 of this Plan.
2.2.6 Owner shall use commercially reasonable efforts
not to allow any rent -ready Restricted Unit to remain vacant.
2.3 Allocation of Restricted Units.
2.3.1 During the Term of this Plan, at least six
(6)Units (i.e, 20 of the total Units in the Project) available for
occupancy in compliance with Building Code requirements of the
City, shall be occupied, or held vacant and available for
occupancy, at an Affordable Housing Cost, on a continuous basis, by
Very Very Low Income Tenants (the "Very Very Low Income Units ").
2.3.2 During the Term of this Plan,
three (23) Units (i.e., 70 of the total Units
available for occupancy in compliance with
requirements of the City, shall be occupied, or
available for occupancy, at an Affordable Hou;
continuous basis, by Very Low Income Tenants (the
Units ").
at least twenty -
in the Project)
Building Code
held vacant and
Sing Cost, on a
"Very Low Income
2.3.3 During the Term of this Plan, at least twenty -
one (21) Units (i.e., 7.0% of the total Units in the Project)
available for occupancy in compliance with Building Code
requirements of the City, shall be occupied, or held vacant and
available for occupancy, at an Affordable Housing Cost, on a
continuous basis, by Low Income Tenants (the "Low Income Units ").
2.3.4 During the Term of this Plan, at least twelve
(12) Units (i.e., 4.0% of the total Units in the Project) available
for occupancy in compliance with Building Code requirements of the
City, shall be occupied, or held vacant and available for
occupancy, at an Affordable Housing Cost, on a continuous basis, by
Moderate Income Tenants (the "Moderate Income Units ").
2.3.5 Owner shall have the right to rent the
remaining Units in the Project to households of any income, at
market rents, without restriction.
2.4 Rent -Up Periods
2.4.1 Prior to the Initial Rent -Up, Owner shall
designate specific Units in the Project to be the Restricted Units
and give notice to the City of such designation. Subject to the
terms of this Plan, Owner shall have the right, from time to time,
to designate unrestricted Units as substitute Restricted Units and
moor \arch \p1an9.wpd
12 -12 -01 7
C
to re- designate Restricted Units as.Unrestricted Units so long as:
(1) the Unit Allocation remains substantially the same throughout
the Term; and (2) Owner provides written notice to the City of such
allocation.
2.4.2 During the Initial Rent -Up, the Restricted
Units occupied by tenants at the applicable income levels plus
those Restricted Units held available for occupancy by such
tenants, shall be equal to or exceed the respective applicable
number and percentage of Units set forth in Sections 2.3.1, 2.3.2,
2.3.3 and 2.3.4 of this Plan.
2.4.3 As vacancies in the Restricted Units occur,
subject to the Unit Allocation, Owner shall rent vacant Units in
the Project in the following order of priority:
(a) First, only to Very Very Low Income Tenants,
at Affordable Rent, until that number of Restricted
Units equal to or greater than the number and
percentage of all Units set forth in Section 2.3.1
are occupied by such tenants;
(b) When not less than the number and percentage
of Units set forth in Section 2.3.1 are occupied by
Very Very Low Income Tenants, Owner shall rent
vacant Units in the Project only to Very Low Income
Tenants until that number and percentage of
Restricted Units equal to or greater than the
number and percentage of all Units set forth in
Section 2.3.2 are occupied by such tenants;
(c) When not less than the number and percentage
of Units set forth in Section 2.3.2 are occupied by
Very Low Income Tenants, Owner shall rent vacant
Units only to Low Income Tenants until that number
and percentage of Restricted Units equal to or
greater than the number and percentage of all Units
set forth in Section 2.3.3 of the Units are
occupied by such tenants; and
(d) When not less than the number and percentage
of Units set forth in Section 2.3.3 are occupied by
Low Income Tenants, Owner shall rent vacant Units
only to Moderate Income Tenants until that number
and percentage of Restricted Units equal to or
greater than the number and percentage of all Units
set forth in Section 2.3.4 of the Units are
moor \arch \p1an9.wpd
12 -12 -01 8
occupied by such tenants.
2.5 Distribution of Restricted Units; Parkinq Spaces.
2.5.1 To the extent possible, the Moderate Income
Units, Low Income Units, Very Low Income Units and Very Very Low
Income Units shall be distributed and intermingled throughout the
Project and shall not all be concentrated in the same general area
of the Project. During the Term, the distribution of Restricted
Units throughout the Project shall be substantially as approved by
the City at the time of Initial Rent -Up. The Restricted Units
shall consist of the unit types (i.e., number of bedrooms and
baths), shall be subject to the household size adjustment and the
Utility Allowance set forth in the chart attached to this Plan as
Exhibit "D ".
2.5.2 Each Restricted Unit shall have for the
respective size of the Restricted Unit the same number of parking
spaces as provided to unrestricted Units of the same or similar
size. In addition, each Restricted Unit's parking space(s) shall
have the same level of convenience (including, without limitation,
proximity between the space(s) and the Restricted Unit) as provided
to unrestricted Units.
2.6 Affordable Rent.
2.6.1 Monthly rent charged
shall be no greater than thirty percent
(60o) of County Median Income, adjusted for
for the Unit, less the Utility Allowance.
2.6.2 Monthly rent charged to
shall be no greater than thirty percent
(500) of County Median Income, adjusted for
for the Unit, less the Utility Allowance.
to Low Income Tenants
(300) of sixty percent
family size appropriate
Very Low Income Tenants
(300) of fifty percent
family size appropriate
2.6.3 Monthly rent charged to Very Very Low Income
Tenants shall be no greater than thirty percent (300) of thirty -
three percent (33o) of County Median Income, adjusted for family
size appropriate for the Unit, less the Utility Allowance.
2.6.4 Monthly rent charged to Moderate Income Tenants
shall be no greater than thirty percent (300) of one hundred
percent (1000) of the County Median Income adjusted for family size
appropriate for the Unit, not to exceed an unrestricted market
rent, without including a utility allowance.
moor \arch \p1an9.wpd
12 -12 -01 9
2.7 Income Recertification; Rent Increases.
2.7.1 Owner shall cause the income of each tenant of
a Restricted Unit to be re- certified on an annual basis on the
anniversary date of each such tenant's initial rental date.
2.7.2 Except as provided in Section 2.8 below, rents
for the Restricted Units may be increased only once per year,
concurrently with or subsequent to any increase in the County
Median Income when and as determined by HUD. The rents charged for
Restricted Units following such an increase, or upon a vacancy and
new occupancy by a Very Very Low Income Tenant, Very Low Income
Tenant, Low Income Tenant or Moderate Income Tenant, as the case
may be, shall not exceed the allowable rent calculated in compli-
ance with Sections 2.3.1, 2.3.2, 2.3.3 and 2.3.4, above.
2.8 Increased Income of Occupying Households.
2.8.1 If, upon income recertification, the Owner
determines that the household income of a Very Very Low Income
Tenant has increased above the maximum allowable household income
level for such income category, but remains below that of a Very
Low Income Tenant, then the monthly rent may be increased to not
greater than one - twelfth (1/12) of thirty percent (30o) of fifty
percent (500) of the County Median Income upon sixty (60) days
written notice to the occupants thereof. In any such event, the
next available Restricted Unit shall be made available for
occupancy by a Very Very Low Income Tenant of the appropriate
household size.
2.8.2 If, upon income recertification, the Owner
determines that the household income of a Very Very Low Income or
Very Low Income Tenant has increased above the maximum allowable
household income level of a Very Low Income Tenant but remains
below that of a Low Income Tenant, then the monthly rent may be
increased to not greater than one - twelfth (1/12) of thirty percent
(300) of sixty percent (600) of the County Median Income, upon
sixty (60) days written notice to the occupants thereof. In any
such event, the next available Restricted Unit shall be made
available for occupancy by a Very Very Low Income Tenant or Very
Low Income Tenant, as the case may be, of the appropriate household
size.
2.8.3 If, upon income recertification, the Owner
determines that the household income of a Very Very Low Income or
Very Low Income or Low Income Tenant has increased above the
maximum allowable household income of a Low Income Tenant but
remains below that of a Moderate Income Tenant, then the monthly
m00r \arch \p1an9.wpd
12 -12 -01 10
rent may be increased to not greater than one - twelfth (1/12) of
thirty percent (300) of one hundred percent (1000) of the County
Median Income, but not more than an unrestricted market rent
without including a utility allowance, upon sixty (60) days written
notice to the tenant. In any such event, the next available
Restricted Unit shall be made available for occupancy by a Very
Very Low Income Tenant, Very Low Income Tenant or Low Income
Tenant, as the case may be, of the appropriate household size.
2.8.4 If, upon income recertification, the Owner
determines that the household income of a Very Very Low Income,
Very Low Income, Low Income or Moderate Income Tenant has increased
above the maximum allowable household income of a Moderate Income
Tenant, then the monthly rent may be increased to market rates upon
sixty (60) days written notice to the tenant. In any such event,
the next available Unit shall be made available for occupancy by a
Very Very Low Income Tenant, Very Low Income Tenant, Low Income
Tenant or Moderate Income Tenant, as the case may be, of the
appropriate household size.
2.8.5 If, due to recertification, Restricted Units
become simultaneously available for occupancy to households at
different income categories, (i.e., Very Very Low Income, Very Low
Income, Low Income and Moderate Income), preference shall be given
to filling the vacancies with Very Very Low Income Tenants, until
the applicable number and percentage of Units set forth in Section
2.3.1 are occupied by Very Very Low Income Tenants, then Very Low
Income Tenants until the applicable number and percentage of Units
set forth in Section 2.3.2 are occupied by Very Low Income Tenants,
then Low Income Tenants until the applicable number and percentage
of Units set forth in Section 2.3.3 are occupied by Low Income
Tenants, otherwise vacancies may be filled with Moderate Income
Tenants.
2.8.6 A Unit occupied by a Very Very Low Income Tenant,
a Very Low Income Tenant, a Low Income Tenant or a Moderate Income
Tenant shall be deemed, upon the termination of such household's
occupancy, to be continuously occupied by a Very Very Low Income
Tenant, a Very Low Income Tenant, a Low Income Tenant or a Moderate
Income Tenant, respectively, as applicable, until re- occupied, at
which time the character of the Unit shall be redetermined.
2.9 Specific Enforcement of Affordabilitv Restrictions.
2.9.1 Owner hereby agrees that specific enforcement
of Owner's agreement to comply with the allowable rent and
occupancy restrictions of this Plan is one of the reasons for the
moor \arch \p1an9.wpd
12 -12 -01 1 1
City's entering into the Development Agreement and providing the
Density Bonus.
2.9.2 Owner further agrees that, in the event of
Owner's breach of such requirements, potential monetary damages to
City, as well as prospective Very Very Low Income Tenants, Very Low
Income Tenants, Low Income Tenants and Moderate Income Tenants
would be difficult, if not impossible, to evaluate and quantify.
2.9.3 Therefore, in addition to any other relief to
which the City may be entitled as a consequence of the breach
hereof, Owner agrees to the imposition of the remedy of specific
performance against it in the case of any event of default by Owner
in complying with the allowable rent, occupancy restrictions or any
other provision of this Plan.
2.10 City's Option to Place Tenants.
2.10.1 Restricted Units. Owner hereby grants to the
City the option to place tenants from time to time in as many of
the Restricted Units in the Project as necessary to achieve
compliance with the provisions of this Plan. The City shall have
the right, in its sole discretion, and hereby notifies Owner that
City intends to utilize its option and right to place into
Restricted Units eligible Moderate Income Tenants, Low Income
Tenants, Very Low Income Tenants and Very Very Low Income Tenants.
From time to time and at any time during the Term, City may give
written notice to Owner (the "Option Notice ") that City intends to
exercise its option as to one or a specified number more than one
of the next available Restricted Units, as provided in paragraphs
a. and b. of this Section 2.10.1, below. Each such Option Notice
shall include the applicable income level (i.e., Moderate Income,
Low Income, Very Low Income or Very Very Low Income) for each such
requested Restricted Unit. City shall have the right to subsidize
the rents payable by any Very Very Low Income Tenants, Very Low
Income Tenants, Low Income Tenants or Moderate Income Tenants,
provided City executes and delivers to Owner with respect to any
such rent - subsidized Restricted Units a rent payment guarantee (the
"Rent Payment Guarantee "), in form and substance reasonably
acceptable to City and Owner, pursuant to which City shall
guarantee the full and timely payment of rent to Owner.
a. Initial Rent -Up. The City may give one or more
Option Notices at any time following the execution of the
Affordable Housing Agreement and prior to the leasing up of all the
Restricted Units and City shall have the exclusive right for ten
moor \arch \p1an9.wpd
12 -12 -01 12
(10) days after delivery of such Option Notice to place tenants
into all or any number of the then un- rented Restricted Units,
subject to the terms of this Plan. The option shall be exercised
for each Restricted Unit listed in an Option Notice as follows: (1)
within ten (10) days after receipt of an Option Notice during
Initial Rent -Up (the "Application Date "), the qualified tenant
referred by City shall go to Owner's rental office to fill out an
application form and sign Owner's standard form of lease and comply
with Section 2.10.3, below; and (2) either (A) within ten (10) days
after the Application Date, the qualified tenant shall provide to
Owner a rent deposit, as required by Owner, or (B) within twenty
(20) days after the Application Date, the City shall provide to
Owner a Rent Payment Guarantee for the Restricted Unit. City's
option to place a tenant into any such Restricted Unit shall lapse
if, (AA) by the end of the ten (10) day period following delivery
of an Option Notice, a qualified tenant referred by City has not
filled out the application form and signed Owner's standard form of
lease, or (BB) if, by the end of the ten (10) day period following
the Application Date, the qualified tenant has not delivered the
rental deposit, or if, by the end of the twenty (20) day period
following the Application Date, the City has not delivered the Rent
Payment Guarantee.
b. Subsequent to Initial Rent -Up. Subsequent to
Initial Rent -Up, after the receipt of an Option Notice from City,
Owner shall give written notice to the City upon any vacancy of a
Restricted Unit ( "Vacancy Notice ") , and City shall have the
exclusive right for ten (10) days after receipt of such Vacancy
Notice, to place a qualified tenant into such vacated Restricted
Unit, subject to the terms of this Plan. The option shall be
exercised for each Restricted Unit listed in a Vacancy Notice as
follows: (1) within ten (10) days after receipt of a Vacancy Notice
(the "Application Date "), the qualified tenant referred by City
shall go to Owner's rental office to fill out an application form
and sign Owner's standard form of lease and comply with Section
2.10.3, below; and (2) either (A) within ten (10) days after the
Application Date, the qualified tenant shall provide to Owner a
rent deposit, as required by Owner, or (B) within twenty (20) days
after the Application Date, the City shall provide to Owner a Rent
Payment Guarantee for the Restricted Unit. City's option to place
a tenant into any such Restricted Unit shall lapse if, (AA) by the
end of the ten (10) day period following delivery of a Vacancy
Notice, a qualified tenant referred by City has not filled out the
application form and signed Owner's standard form of lease, or (BB)
if, by the end of the ten (10) day period following the Application
Date, the qualified tenant has not delivered the rental deposit, or
if, by the end of the twenty (20) day period following the
moor \arch \p1an9.wpd
12 -12 -01 13
Application Date, the City has not delivered the Rent Payment
Guarantee.
2.10.2 Unrestricted Units. In order for the City to
meet its affordable housing needs, the Owner hereby grants to the
City an option to place qualified tenants into the next available
unrestricted Unit from time to time after Initial Rent -Up (the
"Unrestricted Units "); provided that: (A) the sum at any time of
Unrestricted Units rented to Moderate Income Tenants, Low Income
Tenants, Very Low Income Tenants or Very Very Low Income Tenants
pursuant to this Section 2.10.2 shall not exceed twenty -five (25)
Units; and (B) the number of Unrestricted Units rented to Very Very
Low Income Tenants shall not exceed six (6), so that the sum of the
Restricted Units and Unrestricted Units rented to Very Very Low
Income Tenants shall never exceed twelve (12) at any time. The City
shall have the right, in its sole discretion, and hereby notifies
Owner that City intends to place into Unrestricted Units eligible
Moderate Income Tenants, Low Income Tenants, Very Low Income
Tenants and Very Very Low Income Tenants. The option may be
exercised upon ten (10) days written notice from the City to Owner.
The City's option with respect to an available unrestricted Unit
shall expire if the qualified tenant does not execute the Owner's
standard form of lease and pay the first month's rent and any
applicable deposits within ten (10) days after receipt from the
Owner of notice that an unrestricted Unit is available for rent,
and the City does not return an executed Rent Payment Guarantee for
that Unit within twenty (20) days after receipt of such notice.
Such Unit shall be rented to the qualified tenant at the then
current rate and terms afforded to tenants of unrestricted Units by
the Owner. City shall execute and deliver to Owner a Rent Payment
Guarantee, in form and substance reasonably acceptable to City and
Owner, with respect to any such Unit rented to a qualified tenant,
pursuant to which City shall guarantee the full and timely payment
of rent as to any such Unit. Any such Unit rented by a qualified
tenant would not be a Restricted Unit as defined herein and, other
than the obligation to allow the City to place a qualified tenant
in an Unrestricted Unit as set forth in this Section 2.10.2, Owner
shall have no obligation under Article 2 of this Plan for any such
Unit.
2.10.3 Eligibility. Any applicant proposed as a tenant
for the Units subject to this Section 2.10 shall be subject to
Owner's customary screening requirements and shall be required to
comply with all customary or rental agreement lease provisions. As
with any other tenant of the Project, Owner shall have the right to
terminate such tenant's tenancy if such tenant breaches the
standard lease or rental agreement provisions.
moor \arch \p1an9.wpd
12 -12 -01 14
2.11 Reporting Requirements.
2.11.1 During the Initial Rent -Up, Owner shall prepare
and submit to the City, on a monthly basis, written reports,
setting forth the rental activity for the previous month, and the
current total number of Restricted Units occupied by tenants, by
respective income category.
2.11.2 Following the Initial Rent -Up, Owner shall
prepare and submit to the City, on a quarterly basis, not later
than the 15th day of the first month of each calendar quarter, or
at such lesser frequency as the City might require, a Certificate
of Continuing Program Compliance in a form similar to Exhibit "C"
hereto, stating: (a) the number and percentage of Units in the
Project which were occupied by Moderate Income Tenants, Low Income
Tenants, Very Low Income Tenants and Very Very Low Income Tenants,
or held vacant and available for occupancy by Moderate Income
Tenants, Low Income Tenants, Very Low Income Tenants and Very Very
Low Income Tenants during such period; and (b) that to the
knowledge of the Owner, no default has occurred under the provi-
sions of this Plan.
2.11.3 Owner shall prepare and submit to the City, on
an annual basis, a report in form and substance reasonably
satisfactory to the City, not later than March 31st of each year
for the preceding calendar year, summarizing the vacancy rate of
the Project on a month -to -month basis for such calendar year.
ARTICLE 3. GENERALLY APPLICABLE REQUIREMENTS
The terms, conditions and provisions of this Article 3 shall
apply to the entire Project for the Term of this Plan.
3.1 General Use Restrictions. The Project and Property will
be used only for purposes consistent with this Plan and with the
Redevelopment Plan for the City of Moorpark Redevelopment Project
Area of the City of Moorpark, subject to the affordability and
income restrictions set forth herein.
3.2 Residential Rental Property.
3.2.1 Owner represents, warrants, and covenants to
operate the Project and Property as residential rental property.
The Project and Property will be held and used for the purpose of
providing multifamily residential housing, and Owner shall own,
manage and operate, or cause the management and operation of, the
moor \arch \p1an9.wpd
12 -12 -01 is
Project to provide multifamily rental housing and for no other
purposes.
3.2.2 As used herein, facilities functionally related
and subordinate to the Project include facilities for use by the
tenants thereof, including for example, swimming pools, other
recreational facilities and meeting rooms, parking areas, and other
facilities which are reasonably required for the Project (heating
and cooling equipment, trash disposal equipment, and Units set
aside and used for residential managers or maintenance personnel
and as a leasing office).
3.2.3 Owner will not knowingly permit any of the
Units in the Project to be used on a transient basis and will not
rent any such Units for a period of less than thirty (30)
consecutive days. None of the Units in the Project will at any time
be leased or rented for use or developed or used as a common
interest development (including, without limitation, a
condominium), cooperative (stock or otherwise), hotel, motel,
dormitory, fraternity house, sorority house, rooming house,
hospital, nursing home, sanitary or rest home, or trailer court or
park.
3.3 Lease Provisions for Restricted Units.
3.3.1 The form of lease or rental agreement used by
the Owner for the lease or rental of Restrictd Units shall be
substantially the same as the form of lease or rental agreement
used by the Owner for the lease or rental of the unrestricted Units
except for the provisions of such agreement related to
certification of income prior to execution of the lease or rental
agreement and annual recertification of income. The provisions
relating to certification and recertification of income shall be
subject to review and approval by the City, the approval of which
shall not be unreasonably withheld or delayed. If the lease or
rental agreement provisions specified in this Section 3.3.1 are not
approved or disapproved within thirty (30) days after submittal to
City, they shall be deemed approved.
3.3.2 Each lease or rental agreement shall provide
that the Owner will not discriminate on the basis of race, creed,
color, sex, national origin, ancestry, religion, marital status,
disability or receipt of public assistance or housing assistance in
connection with the rental of a Unit in the Project, or in
connection with the employment or application for employment of
persons for operation and management of the Project, and all
moor \arch \p1an9.wpd
12 -12 -01
16
contracts, applications and leases entered into for such purposes
shall contain similar non - discrimination clauses to such effect.
3.3.3 In addition to the conditions and restrictions to
be contained in leases or rental agreements as provided in this
Plan, ongoing operation of the Project will be subject to
reasonable house rules, policies and regulations issued from time
to time by Owner ( "Rules "). Owner shall submit its Rules to City
during the Initial Rent -Up. From time to time thereafter, Owner
shall submit any amendments, modifications or changes to such Rules
to the City prior to their effective date. In addition, Owner shall
submit to the City on an annual basis a certification that the
Rules previously submitted to City, as amended, remain in effect.
3.4 Security Deposits. The Owner shall not require rental
deposits in excess of one - month's rent for any Restricted Unit, but
may require refundable deposits for pet damages, keys and garage
door openers, not in excess of market rates.
3.5 Additional Information; Books and Records. Owner shall
provide, within thirty (30) days of request, additional information
concerning the Restricted Units and /or Unit Allocation reasonably
requested by the City in writing. The City shall have the right to
examine and make copies of all books, records or other documents
maintained by Owner or by any of Owner's agents which pertain to
any Restricted Unit.
3.6 Hazardous Materials.
3.6.1 Definitions. The following special definitions
shall apply for the purposes of this Section 3.6:
moor \arch \p1an9_wpd
12 -12 -01
(a) "Hazardous Materials" shall mean:
(1) any "hazardous substance" as defined in
Section 101(14) of CERCLA (42 U.S.C. Section
9601(14)) or Section 25281(d) or 25316 of the
California Health and Safety Code at such
time;
(2) any "hazardous water," "infectious waste"
or "hazardous material" as defined in Section
25117, 25117.5 or 25501(j) of the California
Health and Safety Code at such time;
(3) any other waste, substance or material
designated or regulated in any way as "toxic"
INJ
or "hazardous" in the RCRA (42 U.S.C. Section
6901 et seq.), CERCLA Federal Water Pollution
Control Act (33 U.S.C. Section 1521 et seq.),
Safe Drinking Water Act (42 U.S.0 Section
3000 (f) et seq.), Clean Air Act (42 U.S.C.
Section 7401 et seq.), California Health and
Safety Code (Section 25100 et seq., Section
3900 et seq.), or California Water Code
(Section 1300 et seq.) at such time; and
(4) Any additional wastes, substances or
material which at such time are classified,
considered or regulated as hazardous or toxic
under any other present or future
environmental or other similar laws relating
to the Project or the Property.
(b) "Hazardous Materials Laws" means all federal,
state, and local laws, ordinances, regulations,
orders and directives pertaining to Hazardous
Materials, in, on or under the Project, the
Property of any portion thereof.
3.6.2 Certain Covenants and Agreements. The Owner
hereby agrees that:
(a) The Owner shall not knowingly permit the
Project, the Property or any portion thereof to be a site for the
use, generation, treatment, manufacture, storage, disposal or
transportation of Hazardous Materials or otherwise knowingly permit
the presence of Hazardous Materials in, on or under the Project or
the Property. For the purposes of this Section 3.6.2 only, the
term "Hazardous Materials" shall not include (1) construction
materials, gardening materials, household products, office supply
products, or janitorial supply products customarily used in the
construction, maintenance, or management of residential
developments or associated buildings and grounds, or typically used
in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain
substances which may contain chemicals listed by the State of
California pursuant to Health and Safety Code Section 25249.8 et
seq., which substances are commonly used by a significant portion
of the population living within the region of the Project,
including (without limitation) alcoholic beverages, aspirin,
tobacco products, and saccharine.
moor \arch \p1an9_wpd
12 -12 -01 18
(b) The Owner shall keep and maintain the Project
and the Property and each portion thereof in compliance with, and
shall not cause or permit the Project, the Property or any portion
thereof to be in violation of, any Hazardous Materials Laws.
(c) Upon receiving actual knowledge of the same
the Owner shall immediately advise the City in writing of: (1) any
and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the
Owner or the Project or the Property pursuant to any applicable
Hazardous Materials Laws; (2) any and all claims made or threatened
by any third party against the Owner or the Project or the Property
relating to damage, contribution, cost recovery, compensation, loss
or injury resulting from any Hazardous Materials (the matters set
forth in the foregoing clause (1) and this clause (2) are
hereinafter referred to as "Hazardous Materials Claims "); (3) the
presence of any Hazardous Materials in, on or under the Project or
the Property; or (4) the Owner's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the
Project classified as "borderzone property" under the provisions of
California Health and Safety Code, Section 25220 et seq., or any
regulation adopted in accordance therewith, or to be otherwise
subject to any restrictions on the ownership, occupancy,
transferability or use of the Project or the Property under any
Hazardous Materials Laws.
3.7 Indemnity. Owner hereby agrees to indemnify, protect,
hold harmless and defend (by counsel reasonably approved by the
City) the City, and its City Council members, officers, employees,
contractors, agents and attorneys from and against any and all
claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments,
remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith, including,
but not limited to, reasonable attorneys' fees and
expenses(collectively, a "Loss "), arising directly or indirectly,
in whole or in part, out of (1) the failure of the Owner or any
other person or entity occupying or present on the Project or
Property to comply with any Hazardous Materials Law relating in any
way whatsoever to the handling, treatment, presence, removal,
storage, decontamination, cleanup, transportation or disposal of
Hazardous Materials into, on, under or from the Project or the
Property; (2) the presence in, on or under the Project or the
Property of any Hazardous Materials or any releases or discharges
of any Hazardous Materials into, on, under or from the Project or
the Property; or (3) any activity carried on or undertaken on the
Project or the Property during Owner's ownership of the Property,
moor \arch \p1an9.wpd
12 -12 -01 19
whether by the Owner or any employees, agents, contractors or
subcontractors of the Owner, or any third persons at any time
occupying or present on the Project or the Property, in connection
with the handling, treatment, removal, storage, decontamination,
cleanup, transport or disposal of any Hazardous Materials at any
time located or present on or under the Project or the Property.
The foregoing indemnity shall further apply to any residual
contamination on or under the Project or the Property, or affecting
any natural resources, and to any contamination of any property or
natural resources arising in connection with the generation, use,
handling, treatment, storage, transport or disposal of any such
Hazardous Materials on, under, or from the Project or the Property,
and irrespective of whether any of such activities were or will be
undertaken in accordance with Hazardous Materials Laws. However,
the foregoing indemnity shall not extend to the portion of any Loss
arising from the negligence of the City or anyone for whose actions
the City is legally liable. This Section 3.7 shall survive
termination of this Plan.
3.8 No Limitation. The Owner hereby acknowledges and agrees
that the Owner's duties, obligations and liabilities under this
Plan, including without limitation, under Section 3.7 above, are in
no way limited or otherwise affected by any information the City
may have concerning the Project or the Property and /or the presence
within the Project or the Property of any Hazardous Materials,
whether the City obtained such information from the Owner or from
its own investigations.
3.9 Management Agent.
3.9.1 The Project shall at all times be managed by
the Owner or an experienced third -party management agent with
demonstrated ability to operate residential housing in a manner
that will provide decent, safe and sanitary residential facilities
to occupants thereof, including experience in complying with
reporting requirements and occupancy restrictions similar to those
imposed upon the Project by the terms of this Plan. The City
acknowledges that Archstone Communities Incorporated has the
qualifications set forth in this Section 3.9.1 for the management
agent.
3.9.2 The Owner directly or through an affiliate may
be the "management agent" of the Project. The Owner may retain on-
site personnel and other consultants and service providers to
assist Owner to operate the Project effectively and in compliance
with the provisions of this Plan and state and federal law.
moor \arch \p1an9.wpd
12 -12 -01 2 0
3.9.3 In the event that Owner seeks to appoint a
replacement management entity to manage the Project, the Owner
shall advise the City of the identity of any such qualified
management agent not later than sixty (60) days prior to the
effective date of such appointment. The Owner shall also submit
such additional information about the background, experience and
financial condition of any proposed management agent as is
reasonably requested by the City.
3.9.4 Upon the City's request, the Owner shall cooperate
with the City in an annual review of the management practices and
status of Project. The purpose of each annual review will be to
enable the City to determine if the Project is being operated and
managed in accordance with the requirements and standards of this
Plan.
3.10 Day -to -Day Management Responsibility. The following
procedure shall be followed to ensure effective day -to -day
operation of the Project and cooperation between the City, the
Owner and the management agent:
3.10.1 Day -to -day operation of the Project will be
under the direct supervision of an on -site management agent or
resident manager who will report to the management agent.
3.10.2 There will be regular meetings as necessary
between the Owner and the management agent for the purpose of
reviewing policies, procedures, resident relations and budget
control. Such policies and procedures will not be altered without
the prior approval of the Owner.
3.11 Insurance Requirements.
3.11.1 Required Coverage. The Owner shall maintain and
keep in force, at the Owner's sole cost and expense, the following
insurance applicable to the Project and the Property:
(a) Comprehensive general liability insurance with
limits not less than $2,000,000 for each occurrence, combined
single limit for bodily injury and property damage, including
coverages for contractual liability, personal injury, broad form
property damage, products and completed operations. The policy
limits shall be adjusted by the aggregate percentage change in the
Consumer Price Index from the date of recordation of the Affordable
Housing Agreement, calculated every five (5) years, beginning on
the fifth anniversary date of the recordation of the Affordable
Housing Agreement or a memorandum thereof.
moor \arch \p1an9.wpd
12 -12 -01 2 1
(b) Comprehensive automobile liability insurance
with limits not less than $2,000,000 for each occurrence, combined
single limit for bodily injury and property damage, including
coverages for owned, non -owned and hired vehicles. The policy
limits shall be adjusted by the percentage change in the Consumer
Price Index from the date of recordation of the Affordable Housing
Agreement, calculated every five (5) years, beginning on the fifth
anniversary date of the recordation of the Affordable Housing
Agreement or a memorandum thereof.
(c) Worker's compensation insurance, fidelity
bonds and /or such other insurance coverage which is ordinarily and
customarily maintained on like kind and sized apartment projects
within the City.
(d) A policy or policies of insurance against loss
or damage to the Project resulting from fire, windstorm, hail,
lightning, vandalism, malicious mischief, and such other perils
ordinarily included in extended coverage casualty insurance
policies. In addition, if Owner carries coverage voluntarily for
additional causes (such as earthquake, riot, civil commotion or
other), such coverage shall be treated in all respects as the
policy or policies required to be kept under this paragraph (d) for
so long as Owner continues to voluntarily carry such coverage. All
insurance hereunder, except earthquake insurance, shall be
maintained in an amount not less than one hundred percent (1000) of
the Full Insurable Value of the Project as defined below (such
value to include amounts spent for construction of the Project,
architectural and engineering fees, and inspection and
supervision). "Full Insurable Value of the Project" shall mean the
actual replacement cost excluding the cost of excavation,
foundation and footings below the ground level of the Project. To
ascertain the amount of coverage required, Owner shall cause the
Full Insurable Value to be determined from time to time, but in no
event less often than once each five (5) years, by appraisal by the
insurer or by any appraiser mutually acceptable to City and Owner;
except that no such appraisals shall be required if the policy is
written on a "replacement cost" basis.
3.11.2 General Requirements. The insurance required by
this Section 3.11 shall be provided under an occurrence form, and
the Owner shall maintain such coverage continuously so long as this
Plan is in force. Should any of the required insurance be provided
under a form of coverage that includes an annual aggregate limit or
provides that claims investigation or legal defense costs be
included in such annual aggregate limit, such annual aggregate
moor \arch \p1an9.wpd
12 -12 -01 22
a
limit shall be one and one -half times the occurrence limits
specified above. All policies shall be with an insurance carrier
licensed and admitted to do business in California and rated in
Best's Insurance Guide, or any successor thereto (or if there be
none, an organization having a national reputation) as having a
"Best's Rating" of "A" and a "Financial Size Category" of at least
"VII" or if such ratings are not then in effect, the equivalent
thereof.
3.11.3 Additional Insured. The City shall be named as
an additional insured on both the general liability and extended
coverage property insurance covering the Project and the Property.
Comprehensive general liability, comprehensive automobile
liability and property insurance policies shall also be endorsed to
name as additional insureds the City, and its City Council members,
officers, agents, employees and attorneys. All policies shall be
endorsed to provide thirty (30) days prior written notice of
cancellation, reduction in coverage, or intent not to renew to the
address established for notices to the City pursuant to Section
7.1, below.
3.11.4 Certificates of Insurance. Upon the City's
request at any time during the Term of this Plan, the Owner shall
provide certificates of insurance, in form and with insurers
reasonably acceptable to the City, evidencing compliance with the
requirements of this Section, and shall provide complete copies of
such insurance policies, including a separate endorsement naming
the City as an additional insured.
ARTICLE 4. OPERATIONS
The terms, conditions and provisions of this Article 4 shall
apply to the entire Project for the Term of this Plan.
4.1 Staffing Arrangements. Owner shall provide for adequate
on -site staffing of management personnel to manage the Project in
a prudent and businesslike manner. In addition, Owner shall provide
such security services as may be necessary or appropriate for the
Project. All hiring of on -site personnel shall conform to
applicable equal opportunity guidelines, without regard to race,
religion, color, national origin or sex. All hiring materials will
indicate that the Project is an "Equal Opportunity Employer."
Employment grievances, terminations and promotions will be
conducted according to personnel policies and procedures which
conform with equal opportunity laws. All personnel employed at the
Project will receive training specific to Owner's policies and
procedures.
moor \arch \p1an9.wpd
12 -12 -01 23
4.2 Initial Leasing, Rental and Occupancy Procedures. In
connection with the Initial Lease -Up of the Project, Owner will
adopt outreach programs to locate qualified tenants for the Project
and shall establish such procedures for occupancy, rental, and rent
grievances as may be reasonably required by the City. Not later
than ten (10) days prior to the commencement of marketing, Owner
shall prepare and submit to the City for reasonable approval a
marketing and outreach program which shall contain, among other
things, the following: how a potential tenant would apply to rent
a Unit in the Project, including where to apply, applicable income
limits and rent levels; a description of procedures Owner will
follow to publicize vacancies in the Project, including notice in
newspapers of general circulation, including at least one Spanish -
language newspaper and mailing notices of vacancies to or
contacting by telephone potential tenants on the waiting list
maintained by Owner.
ARTICLE 5. MAINTENANCE
The terms, conditions and provisions of this Article 5 shall
apply to the entire Project for the Term of this Plan.
5.1 Maintenance, Repair, Alterations. Owner shall maintain
and preserve the Project and the Property in good condition and
repair and in a prudent and businesslike manner. Restoration of
damaged improvements shall be made to a condition as good as
existed prior to the damage. Owner shall complete promptly and in
a good and workmanlike manner any improvements which may now or
hereafter be constructed on the Project or the Property and pay
when due all claims for labor performed and material furnished
therefor. Owner shall comply with all laws, ordinances, rules,
regulations, covenants, conditions, restrictions, and orders of any
governmental authority now or hereafter affecting the conduct or
operation of the Project and of Owner's business on the Project or
any part thereof or requiring any alteration or improvement to be
made thereon. Owner shall maintain abutting grounds, sidewalks,
roads, parking, and landscaped areas in good and neat order and
repair. Owner hereby agrees that City may conduct from time to time
through representatives of its own choice, upon reasonable notice,
on -site inspections and observation of such records of Owner
relating to the Project and the Property as City reasonably deems
to be necessary or appropriate in order to monitor Owner's
compliance with the provisions of this Plan. Owner shall assure
that each Restricted Unit receives the same level of maintenance
and repair and upgrades or improvements as the unrestricted Units.
The Owner shall conduct an ongoing maintenance program, which
moor \arch \p1an9.wpd
12 -12 -01 24
shall include the following:
(a) Scheduled preventative maintenance and repair of
installed equipment in accordance with manufacturers'
recommendations.
(b) Routine repairs to kitchen appliances, electrical,
plumbing and heating equipment.
(c) Preventative annual apartment inspections to
regularly and consistently ascertain the condition of each
apartment. unit.
(d) Preventative regular inspections of common areas and
equipment as well as regular schedules (daily, weekly, monthly,
quarterly, etc.) for maintaining the same. This will include
maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good
repair and free from dirt and litter. Common areas such as
hallways and laundry rooms will be swept and cleaned daily and kept
free of trash and other debris. Garbage removal will be provided
through arrangements with a contractor, consistent with applicable
City ordinances. The trash areas will be swept daily and scrubbed
with disinfectant when necessary. Extermination services will be
contracted with to provide pest control consistent with high
quality apartment management practices.
(e) Contract with a landscape firm to maintain the
landscaped areas in an attractive and healthy condition.
(f) Interior painting and carpet cleaning or replacement
in individual apartment units shall be based on need, substantiated
by the annual physical inspection, or as occupancy changes, or as
the Owner or its management agent may otherwise deem necessary.
(g) Owner will employ a maintenance work order procedure
in the Project to adequately document requests for work and
promptness within which the work has been completed.
5.2 Disclaimer. Nothing in this Plan shall make City
responsible for making or completing capital repairs or
replacements to the Project or the Property or require City to
expend funds to make or complete the same. Upon three (3) business
days' notice to Owner, Representatives of City may enter onto the
Property during normal business hours (subject to the rights of
tenants under their leases) to inspect the progress of any capital
repairs and replacements and the general condition of the Project
moor \arch \p1an9.wpd
12 -12 -01 25
or the Property; provided, in the event of emergencies, City shall
give only such notice to Owner as may be practicable under the
circumstances.
5.3 Mechanics Liens. Owner shall pay and promptly discharge
when due all liens, encumbrances and charges upon the Project, the
Property or any part thereof relating to mechanics, laborers,
materialmen's, suppliers or vendor's liens or rights. Owner shall
have the right to contest in good faith the validity of any such
lien, encumbrance or charge.
ARTICLE 6. DEFAULT; REMEDIES
The terms, conditions and provisions of this Article 6 shall
apply to the entire Project for the Term of this Plan.
6.1 An Event of Default. Each of the following shall
constitute an "Event of Default" by the Owner hereunder:
6.1.1 Failure by the Owner to duly perform, comply with
and observe in any material respect the conditions, terms, or
covenants of the Development Agreement, the Affordability Agreement
or this Plan, if such failure remains uncured thirty (30) days
after written notice of such failure from the City to the Owner in
the manner provided herein or, with respect to a default that
cannot be cured within thirty (30) days, if the Owner fails to
commence such cure within such thirty (30) day period or thereafter
fails to diligently and continuously proceed with such cure to
completion; provided, however, that in no event shall the City be
precluded from exercising remedies if an Event of Default is not
cured within ninety (90) days after the first notice of default is
given, subject to Section 7.1. If a different period or notice
requirement is specified under any other section of this Plan, then
the specific provision shall control.
6.1.2 Any representation or warranty contained in this
Plan or in any application, financial statement, certificate, or
report submitted to the City by Owner proves to have been incorrect
in any material respect when made.
6.1.3 A court having jurisdiction shall have made or
rendered a decree or order (a) adjudging Owner to be bankrupt or
insolvent; (b) approving as properly filed a petition seeking
reorganization of Owner or seeking any arrangement on behalf of the
Owner under the bankruptcy law or any other applicable debtor's
relief law or statute of the United States or of any state or other
jurisdiction; (c) appointing a receiver, trustee, liquidator, or
moor \arch \p1an9.wpd
12 -12 -01 2 6
assignee of the Owner in bankruptcy or insolvency or for any of its
properties; or (d) directing the winding up or liquidation of the
Owner, providing, however, that any such decree or order described
in any of the foregoing subsections shall have continued unstayed
or undischarged for a period of ninety (90) days.
6.1.4 The Owner shall have assigned its assets for the
benefit of its creditors or suffered a sequestration or attachment
or execution on any substantial part of its property, unless the
property so assigned, sequestered, attached, or executed upon shall
have been returned or released within ninety (90) days after such
event (unless a lesser time period is permitted for cure hereunder)
or prior to sale pursuant to such sequestration, attachment, or
execution. If the Owner is diligently working to obtain a return
or release of the property and the City's interest hereunder is not
imminently threatened in the City's reasonable business judgment,
then the City shall not declare a default under this subsection.
6.1.5 The Owner shall have voluntarily suspended its
business or dissolved and a subsequent Owner has not assumed the
Owner's obligations in accordance with Section 7.8 of this Plan.
6.2 Liens.
6.2.1 This Plan and the Affordability Agreement shall be
senior in priority to any lien or encumbrance on the Property
(other than the Development Agreement) and all liens and
encumbrances shall be subordinate and subject to this Plan and the
Affordability Agreement.
6.2.2 Owner shall pay and promptly discharge when due,
at Owner's cost and expense, all liens, encumbrances and charges
upon the Project or the Property, or any part thereof or interest
therein (except the lien of any mortgage, deed of trust or other
recorded instrument securing any construction or permanent
financing for the Project, which shall, in any event, be junior and
subordinate to this Plan) , provided that the existence of any
mechanic's, laborer's, materialman's, supplier's, or vendor's lien
or right thereto shall not constitute a violation of this Section
if payment is not yet due under the contract which is the
foundation thereof and if such contract does not postpone payment
for more than forty -five (45) days after the performance thereof.
Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten
days after service of a stop notice or ninety days after recording
of a mechanic's lien, Owner shall deposit with City a bond or other
security reasonably satisfactory to City in such amounts as City
m0or \arch \pian9.wpd
12 -12 -01 27
shall reasonably require, but no more than the amount required to
release the lien under California law and provided further that
Owner shall thereafter diligently proceed to cause such lien,
encumbrance or charge to be removed and discharged Owner shall
thereafter diligently proceed to cause such lien, encumbrance or
charge to be removed and discharged, and shall, in any event, cause
such lien, encumbrance or charge to be removed or discharged not
later than sixty (60) days prior to any foreclosure sale. If Owner
shall fail either to remove and discharge any such lien,
encumbrance or charge or to deposit security in accordance with the
preceding sentence, if applicable, then, in addition to any other
right or remedy of City, City may, but shall not be obligated to,
discharge the same, without inquiring into the validity of such
lien, encumbrance or charge nor into the existence of any defense
or offset thereto, either by paying the amount claimed to be due,
or by procuring the discharge of such lien, encumbrance or charge
by depositing in a court a bond or the amount or otherwise giving
security for such claim, in such manner as is or may be prescribed
by law. Owner shall, immediately upon demand therefor by City, pay
to City an amount equal to all costs and expenses incurred by City
in connection with the exercise by City of the foregoing right to
discharge any such lien, encumbrance or charge. To the extent not
paid, all costs and expenses paid by the City shall be a lien on
the Property pursuant to Civil Code Section 2881.
6.3 Costs of Enforcement. If any Event of Default occurs,
City may employ an attorney or attorneys to protect its rights
hereunder. Subject to California Civil Code Section 1717, the non -
prevailing party promises to pay to the prevailing party, on
demand, the fees and expenses of such attorneys and all other costs
of enforcing the obligations secured hereby including without
limitation, recording fees, receiver's fees and expenses, and all
other expenses of whatever kind or nature, incurred by the
prevailing party in connection with the enforcement of this Plan,
whether or not such enforcement includes the filing of a lawsuit.
6.4 Enforcement. City shall be entitled to enforce
performance of any obligation of Owner arising under this Plan and
to exercise all rights and powers under this Plan or any law now or
hereafter in force. No remedy herein conferred upon or reserved to
City is intended to be exclusive of any other remedy herein or by
law provided or permitted, but each shall be cumulative and shall
be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power
or remedy given by this Plan to the City may be exercised, concur-
rently or independently, from time to time and as often as may be
deemed expedient by the City, and the City may pursue inconsistent
moor \arch \p1an9.wpd
12 -12 -01 28
remedies.
6.4.1 The City shall have the right to mandamus or other
suit, action or proceeding at law or in equity to require the Owner
to perform its obligations and covenants under this Plan or to
enjoin acts or things which may be unlawful or in violation of the
provisions hereof.
6.5 Right of Contest. The Owner shall have the right to
contest in good faith any claim, demand, levy, or assessment the
assertion of which would constitute an Event of Default hereunder.
Any such contest shall be prosecuted diligently and in a manner
unprejudicial to the City or the rights of the City hereunder.
6.6 Action at Law; No Remedy Exclusive. The City may take
whatever action at law or in equity as may be necessary or
desirable to enforce performance and observance of any obligation,
agreement or covenant of the Owner under this Plan. No remedy
herein conferred upon or reserved by the City is intended to be
exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Plan or now or hereafter
existing at law, in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver of
such right or power, but any such right or power may be exercised
from time to time and as often as City may deem expedient. In
order to entitle the City to exercise any remedy reserved to it in
this Plan, it shall not be necessary to give any notice, other than
such notice as may be herein expressly required or required by law
to be given.
ARTICLE 7. GENERAL PROVISIONS
The terms, conditions and provisions of this Article 7 shall
apply to the entire Project for the Term of this Plan.
7.1 Force Majeure. Whenever Owner is required to perform an
act under this Plan by a certain time, said time shall be deemed
extended (unless otherwise specifically provided herein) so as to
take into account events of force majeure. As used herein "force
majeure" shall mean a delay in Owner's performance hereunder due to
acts of God, acts of terrorism, fire, earthquake, flood, extreme
weather conditions, explosions, war, invasion, insurrection, riot,
mob violence, sabotage, vandalism, malicious mischief, inability to
procure or general shortage of labor, equipment, facilities,
materials or supplies in the open market, failure of
moor \arch \p1an9.wpd
12 -12 -01 29
i
transportation, strikes, lockouts, actions of labor unions, third
party litigation, condemnation, requisition, governmental
restrictions including inability or delay in obtaining government
consents or permits, laws or orders of governmental, civil,
military or naval authorities, or any other cause, whether similar
or dissimilar to the foregoing, not within Owner's control, other
than lack of or inability to procure monies to fulfill its
commitments or obligations under this Plan.
7.2 Title of Parts and Sections. Any titles of the parts,
sections or subsections of this Plan are inserted for convenience
of reference only and shall be disregarded in construing or
interpreting any part of its provision.
7.3 Hold Harmless. Except as such claims may arise from
gross negligence or willful misconduct by the City, if any person
or entity performing work for the Owner on the Project or the
Property shall assert any claim against the City on account of any
damage alleged to have been caused by reason of acts of negligence
of the Owner, the Owner shall defend at its own expense any suit
based upon such claim; and if any judgment or claims against the
City shall be allowed, the Owner shall pay or satisfy such judgment
or claim and pay all costs and expenses in connection therewith.
Nothing herein stated shall be interpreted as a prohibition
against the Owner seeking indemnification (either contractually or
as a matter of law) from any third person or entity.
In addition, the Owner shall defend the City (with counsel
approved by the City) against any claims or litigation of any
nature whatsoever brought by third parties and directly or
indirectly arising from the Owner's failure to perform its
obligations under this Plan, and in the event of settlement,
compromise or judgment hold the City free and harmless therefrom.
The previous sentence shall not apply to the extent such claims or
litigation challenge (a) any provisions of the Affordability
Agreement or this Plan; (b) the failure to perform obligations
under this Plan by the City; and (c) actions of the City or
Redevelopment Agency in connection with this Plan.
7.4 Rights and Remedies Cumulative. Except as otherwise
expressly stated in this Plan, the rights and remedies of the City
are cumulative, and the exercise or failure to exercise one or more
of such rights or remedies by the City shall not preclude the
exercise by it, at the same time or different times, of any right
or remedy for the same default or any other default by the Owner.
No waiver of any default or breach by the Owner hereunder shall be
implied from any omission by the City to take action on account of
moor \arch \p1an9.wpd
12 -12 -01 30
such default if such default persists or is repeated, and no
express waiver shall affect any default other than the default
specified in the waiver, and such waiver shall be operative only
for the time and to the extent therein stated. Waivers of any
covenant, term, or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same
covenant, term or condition. The consent or approval by the City
to or of any act by the Owner requiring further consent or approval
shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar act. The exercise of any
right, power, or remedy shall in no event constitute a cure or a
waiver of any default under this Plan, nor shall it invalidate any
act done pursuant to notice of default, or prejudice the City in
the exercise of any right, power, or remedy hereunder.
7.5 Applicable Law. This Plan shall be interpreted under and
pursuant to the laws of the State of California.
7.6 Severability. If any term, provision, covenant or
condition of this Plan is held in a final disposition by a court of
competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall continue in full force and effect unless
the rights and obligations of the City and Owner have been
materially altered or abridged by such invalidation, voiding or
unenforceability.
7.7 Legal Actions. In the event any legal action is
commenced to interpret or to enforce the terms of this Plan or to
collect damages as a result of any breach thereof, the party
prevailing in any such action shall be entitled to recover against
the party not prevailing all reasonable attorneys' fees and costs
incurred in such action (including all legal fees incurred in any
appeal or in any action to enforce any resulting judgment). Such
legal actions must be instituted in the Superior Court of the
County of Ventura, State of California, in any other appropriate
court of that county, or in the United States District Court for
the Central District of California.
7.8 Intentionallv Omitted.
7.9 City Approval. Any approvals required under this Plan
shall not be unreasonably withheld or delayed, except where it is
specifically provided that another standard applies, in which case
the specified standard shall apply.
7.10 Administrative Fee. On or before the first day of
October of each year during the Term of this Plan, commencing
moor \arch \p1an9.wpd
12 -12 -01 31
' 0 14
October 1, 2001, Owner shall pay to the City for the administration
of this Plan an annual fee equal to $5,270 (which is $85 per
Restricted Unit), subject to adjustment annually, commencing in the
year 2002, based on the change in the Consumer Price Index (CPI).
The CPI increase shall be determined, using the information
provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for all urban consumers, all items, within the Los
Angeles /Riverside /Orange Co. Metropolitan area during the prior
year. The calculation shall be made using the month of February. If
there is a decrease in the CPI, the administrative fee shall remain
at the same amount until the next change in the CPI results in an
increase.
moor \arch \p1an9.wpd
12 -12 -01 32
EXHIBIT A
Legal Description
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
Parcel B, of Parcel Map No. 3118 in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28, Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said County.
EXCEPT 50 percent of all oil, gas, petroleum, hydrocarbon and any
other kindred substances in and under a portion of said land,
except in an area beginning at the surface of said land and
continuing straight down toward the center of the earth 500 feet as
reserved by Hardy Charles, a single man, in deed recorded August
27, 1956, in Book 1437, Page 482, Official Records.
ALSO EXCEPT 25 percent of all oil, gas, petroleum, hydrocarbon and
any other kindred substances in an under a portion of said land
except an area beginning at the surface of said land and continuing
straight down toward the center of the earth 500 feet as reserved
by Hilma S. Paige, a widow, in deed recorded October 7, 1958, Book
1660 Page 460, Official Records.
PARCEL 2:
An easement for ingress and egress over the Easterly 60 feet of
Parcel "A ", of Parcel Map No. 3118 in the City of Moorpark, County
of Ventura, State of California, as shown on Parcel Map filed in
Book 28 Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said county, as provided in the deed recorded June 22,
1979 in Book 5422, Page 602 of Official Records of said county.
PARCEL 3:
An easement for road purposes over the Westerly 30 feet of Parcel
"A" of Parcel Map No. 3118, in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28 Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said county, as provided in the deed recorded June 22,
1979 in Book 5422, Page 602 of Official Records of said county.
moor \arch \p1an9.wpd
12-12 -01 33
EXHIBIT B
CERTIFICATION OF TENANT ELIGIBILITY
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual Income in
accordance with the method set forth in the Department of Housing and Urban Development ( "HUD ") Regulations (24
CFR 813). You should make certain that this form is at all times up -to -date with the HUD Regulations.
Re: [Address of Apartment Building]
I/We, the undersigned state that Uwe have read and answered fully, frankly and personally each of the following
questions for all persons who are to occupy the Unit being applied for in the above apartment project. Listed below are
the names of all persons who intend to reside in the Unit:
1.
2.
3. 4.
Relation -
Names of
ship to
Social
Members of
Head of
Security
Household
Household
Age Number
HEAD
SPOUSE
Income Computation
5.
Place of
Employment
6. The total anticipated income, calculated in accordance with the provisions of this Section 6, of all
persons over the age of 18 years listed above for the 12-month period beginning the date that I /we plan to move into a
Unit is $
Included in the total anticipated income listed above are:
(a0 all wages and salaries, overtime pay, commissions, fees, tips and bonuses and other
compensation for personal services, before payroll deductions;
(b0 the net income from the operation of a business or profession or from the rental of real or
personal property (without deducting expenditures for business expansion or amortization
of capital indebtedness or any allowance for depreciation of capital assets);
(CO interest and dividends (including income from assets excluded below);
m0or \arch \p1an9.wpd
12 -12 -01
34
(d0 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
period receipts, including any lump sum payment for the delayed start of a periodic payment;
(e0 payments in lieu of earnings, such as unemployment and disability compensation, workmen's
compensation and severance pay;
(f0 the maximum amount of public assistance available to the above persons other than the
amount of any assistance specifically designated for shelter and utilities;
(g0 periodic and determinable allowances, such as alimony and child support payments and
regular contributions and gifts received from persons not residing in the dwelling;
(h0 all regular pay, special pay and allowances of a member of the Armed Forces (whether or not
living in the dwelling) who is the head of the household or spouse; and
(i0 any earned income tax credit to the extent that it exceeds income tax liability.
Excluded from such anticipated income are:
(a0 casual, sporadic or irregular gifts;
(b0 amounts which are specifically for or in reimbursement of medical expenses;
(CO lump sum additions to family assets, such as inheritances, insurance payments (including
payments under health and accident insurance and workmen's compensation), capital gains
and settlement for personal or property losses;
(d0 amounts of educational scholarship paid directly to the student of the educational institution,
and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees,
book and equipment. Any amounts of such scholarships, or payments to veterans not used
for the above purposes, are to be included in income;
(e0 special pay to a household member who is away from home and exposed to hostile fire;
(f0 relocation payments under Title 11 of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970;
(g0 foster child care payments;
(h0 the value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of
1977;
(i0 payments to volunteers under the Domestic Volunteer Service Act of 1973;
00 payments received under the Alaska Native Claims Settlement Act.
(k0 income derived from certain submarginal land of the United States that is held in trust for
certain Indian tribes;
moor \arch \p1an9.wpd
12 -12 -01 35
(10 payments or allowances made under the Department of Health and Human Services' Low -
Income Home Energy Assistance Program;
(m0 payments received from the Job Training Partnership Act;
(n0 income derived from the disposition of funds of the Grant River Band of Ottawa Indians; and
(00 the first $2,000 of per capita shares received from judgment funds awarded by the Indian
Claims Commission or the Court of Claims.
7. Do the persons whose income or contributions are included in item 6 above:
(a0 have savings, stocks, bonds,,equity in real property or other form of capital investment
(excluding the values of necessary items of personal property such as furniture and
automobiles and interests in Indian trust land)? _ Yes _ No; or
(b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale) during the
last two years at less than fair market value? Yes No
(c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned
or disposed of by all such persons total more than $5,000? Yes No
(d) If the answer to (c) is yes, state:
(i) the amount of income expected to be derived from such assets in the 12 -month period
beginning on the date of initial occupancy in the Unit that you propose to rent:
$ ; and
(ii) the amount of such income, if any, that was included in item 6 above: $
8. (a) Are all of the individuals who propose to reside in the Unit full -time students *9.
Yes No
*A full -time student is an individual enrolled as a full -time student during each of five calendar months during
the calendar year in which occupancy of the Unit begins at an educational organization which normally
maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance
and is not an individual pursuing a full -time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision thereof.
(b) If the answer to 8(a) is yes, is at least one of the proposed occupants of the Unit a husband and
wife entitled to file a joint federal income tax return? Yes No
9. Neither myself nor any other occupant of the Unit Uwe propose to rent is the owner of the rental housing project
in which the Unit is located (hereinafter the "Owner "), has any family relationship to the Owner or owns, directly or
indirectly, any interest in the ownership. For purposes of this section, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership
or beneficial interest in such corporation, partnership, estate or trust held by the individual or a family member, and
ownership, direct or indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Owner to determine maximum
income for eligibility to occupy the Unit; and I /we declare that all information set forth herein is true, correct and
moor \arch \p1an9.wpd
12 -12 -01 36
complete and, based upon information I /we deem reliable and that the statement of total anticipated income contained
in Section 6 is reasonable and based upon such investigation as the undersigned deemed necessary.
II. Uwe will assist the Owner in obtaining any information or documents required to verify the statements made
herein, including either an income verification from my /our present employer(s) or copies of federal tax returns for the
immediately preceding calendar year.
12. Uwe acknowledge that Uwe have been advised that the making of any misrepresentation or misstatement in this
declaration will constitute a material breach of my /our agreement with the Owner to lease the Units and will entitle the
Owner to prevent or terminate my /our occupancy of the Unit by institution of an action for eviction or other appropriate
proceedings.
13. Housing Issuer Statistical Information (Optional - -will be used for reporting purposes only):
Marital Status:
Race (Head of Household)
White Asian Hispanic
African- American Native American Other
Physical Disability: Yes No
I /we declare under penalty of perjury that the foregoing is true and correct.
Executed this day of , 20_ in the County of Ventura, California.
Applicant
moor \arch \p1an9.wpd
12 -12 -01 37
Applicant
[Signature of all persons over the age of 18 years listed in number 2 above required.]
FOR COMPLETION BY APARTMENT OWNER ONLY:
1. Calculation of eligible income:
(a) Enter amount entered for entire household in 6 above: $ ;
(b) (1) If answer to 7(c) above is yes, enter the total amount entered in 7(d)(i), subtract from that figure
the amount entered in 7(d)(ii) and enter the remaining balance ($ );
(2) Multiply the amount entered in 7(c) times the current passbook savings rate to determine what the
total annual earnings on the amount in 7(c) would be if invested in passbook savings ($ ), subtract
from that figure the amount entered in 7(d)(ii) and enter the remaining balance ($ );
(3) Enter at right the greater of the amount calculated under (1) or (2) above: $ ;
(c) TOTAL ELIGIBLE INCOME
(Line 1(a) plus line L(b)(3): $_
2. The amount entered in 1(c):
Qualifies the applicant(s) as a Lower - Income Tenant(s).
Does not qualify the applicant(s) as Lower - Income Tenant(s).
3. Number of apartment Unit assigned:
Bedroom Size: Rent:$
4. This apartment Unit [was /was not] last occupied for a period of 31 consecutive days by persons whose
aggregate anticipated annual income, as certified in the above manner upon their initial occupancy of the apartment Unit,
moor \arch \p1an9.wpd
12 -12 -01 38
�-
qualified them as Moderate Income Tenants, Low Income Tenants, Very Low Income Tenants or Very Very Low Income
Tenants.
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other
Manager
moor \arch \p1an9.wpd
12 -12 -01 39
s 3
INCOME VERIFICATION
(for employed persons)
The undersigned employee has applied for a rental Unit located in a project that is subject to an Affordable
Housing Agreement with the City of Moorpark. Every income statement of a prospective tenant must be stringently
verified. Please indicate below the employee's current annual income from wages, overtime, bonuses, commissions or
any other form of compensation received on a regular basis.
Annual wages Overtime Bonuses
Commissions
Total current income
I hereby certify that the statements above are true and complete to the best of my knowledge.
Signature
Date Title
I hereby grant you permission to disclose my income to
determine my income eligibility for rental of an apartment at the
Signature
Please send to:
moor \arch \p1an9.wpd
12 -12 -01
Date
it
Apartments.
in order that they may
?W � a
INCOME VERIFICATION
(for self - employed persons)
I hereby attach copies of my individual federal income tax returns for the immediately preceding calendar year
and certify that the information shown in such income tax returns is true and complete to the best of my knowledge.
Signature
Date
moor \arch \p1an9.wpd
12 -12 -01 41
.,,
EXHIBIT C
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE'
FOR THE [MONTII/QUARTER] ENDING
The undersigned, as the authorized representative of Archstone Smith
Operating Trust (the "Owner "), has read and is thoroughly familiar with the provisions of the Affordable Housing
Agreement by and between Owner and the City of the City of Moorpark (the "City"), dated as of
, 2001.
As of the date of this Certificate, the following numbers of completed residential Units in the Project (i) are
occupied, or (ii) are currently vacant and being held available for such occupancy and have been so held continuously
since the date a Very Very Low Income Tenant, Very Low Income Tenant, Low Income Tenant or Moderate Income
Tenant vacated such Unit, as indicated:
Occupied by Very Very Low Income Tenants
Number of Units:
Occupied by Very Low Income Tenants
Number of Units:
Occupied by Low Income Tenants
Number of Units:
Occupied by Moderate Income Tenants
Number of Units:
Held vacant for occupancy continuously since last occupied by Very Very Low Income Tenants, Very Low
Income Tenants, Low Income Tenants and Moderate Income Tenants :
Vacant Units
Number:
Occupied Unrestricted Units
Number:
Very Very Low Income Tenants, Very Low Income Tenants, Low Income Tenants and Moderate Income
Tenants who commenced occupancy of Units during the preceding [month/quarter]:
Very Very Low Income:
Unit Nos.
Very Low Income:
Units Nos.
This form may be amended from time to time by the City.
moor \arch \p1an9.wpd
12 -12 -01 42
1, e� 1
Low Income:
Units Nos.
Moderate Income:
Units Nos.
Attached is a separate sheet (the "Occupancy Summary ") listing, among other items, the following information
for each apartment Unit in the Project: the number of each apartment Unit, the occupants of each Unit, the rental paid
for each Unit and the size and number of bedrooms of each Unit. It also indicates which Units are occupied by Moderate
Income Tenants, Low Income Tenants, Very Low Income Tenants and Very Very Low Income Tenants, and which Units
became Moderate Income Units, Low Income Units, Very Low Income Units and Very Very Low Income Units during
the preceding [month/quarter]. The information contained thereon is true and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner during such [month/quarter]
and of the Owner's performance under the Affordable Housing Agreement, and the Agreement has been made under the
supervision of the undersigned; and (2) to the best of the knowledge of the undersigned, based on the review described
in clause (1) hereof, the Owner is not in default under any of the terms and provisions of the above documents [or
describe the nature of any default in detail and set forth the measures being taken to remedy such default].
ARCHSTONE SMITH OPERATING TRUST
moor \arch \p1an9.wpd
12 -12 -01 43
Name:
Title:
EXHIBIT D
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE
Moderate Income
Type
Number
Household Size
Utility
of Unit
of Units
Adjustment
Allowance
2 -br, 2 -bath
7
3 persons
$53.39 (if applicable)
3 -br, 2 -bath
5
4 persons
$67.28 (if applicable)
Total
12
3 persons
$53.39
Low Income
Type
Number
Household Size
Utility
of Unit
of Units
Adjustment
Allowance
1 -br, 1 -bath
8
2 persons
$44.85
2 -br, 1 -bath
10
3 persons
$53.39
2 -br, 2 -bath
3
3 persons
$53.39
Total
21
Ver Low Income
Type
Number
Household Size
Utility
of Unit
of Units
Adjustment
Allowance
2 -br, 1 -bath
8
3 persons
$53.39
2 -br, 2 -bath
11
3 persons
$53.39
3 -br, 2 -bath
4
4 persons
$67.28
Total
23
Ven Venv Low Income
Type
Number
Household Size
Utility
of Unit
of Units
Adjustment
Allowance
2 -br, 1 -bath
4
3 persons
$53.39
2 -br, 2 -bath
1
3 persons
$53.39
3 -br, 2 -bath
1
4 persons
$67.28
Total
6
1. The above Adjustment for Household Size is intended to provide a single rental rate
applicable to eligible tenants for each type of unit, and, therefore, is applied regardless
of actual household size. The Owner may not charge additional rent based on a larger
actual household size.
moor \arch \p1an9.wpd
12 -12 -01 44
�r
Illustration: For example, the maximum rent for a Very Low Income single person
renting a 2- bedroom, 1 -bath unit would be calculated as follows: the Ventura County
median income for a household of three x .50 x .30 divided by 12 less the utility
allowance, $64,600 x.50 x.30 divided by 12 less $53.39 equals $754.11.
Illustration: For example, the maximum rent for a Low Income single person renting
a 2- bedroom, 1 -bath unit would be calculated as follows:
the Ventura County median income for a household of three x.60 x.30 divided by 12
less the utility allowance, $64,600 x .60 x .30 divided by 12 less $53.39 equals
$915.61.
2. The above utility allowance is current as of August 1, 2001. It shall be adjusted each
June 1st, commencing on June 1, 2002, based on the annual change in the Consumer
Price Index (CPI). The CPI increase shall be determined, using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban
consumers, all items, within the Los Angeles/Riverside /Orange Co. Metropolitan area
during the prior year. For example on June 1, 2002, the utility allowance shall be
adjusted by the change in CPI from February 2001 to February 2002. The calculation
shall be made using the month of February (i.e., the month which is four (4) months
prior to the month in which the Development Agreement was approved by the
Moorpark City Council). If there is a decrease in the CPI, the utility allowance shall
remain at the same amount until the next change in the CPI results in an increase.
moor \arch \p1an9.wpd
12 -12 -01 45
ARCHSTONE COMMUNITIES
AFFORDABLE HOUSING ALLOCATION
Initial Rents for Restricted Units
Family Size
Area
Median
Income
2 person household
3 person household
4 person household
$ 57,450
$ 64,600
1 $ 71,800
TOTAL UNIT ALLOCATION OF RESTRICTED UNITS
Unit
Type
Unit Distribution
Utility
Allowance
Very Very Low
Very Low
Low
Moderate
Total
1 Bedroom, 1 Bath
0
0
8
8
$ 45
2 Bedroom, 1 Bath
4
8
10
22
$ 53
2 Bedroom, 2 Bath
1
11
3
7
22
$ 53
3 Bedroom, 2 Bath
1
41
51
10
$ 67
Total
61
231
21
121
62
Monthly Rent
Unit
Type
Very Low
VerV Low
Low
Moderate
Estimated
Market Rent
-Very
30% of 33% AMI
30% of 50% of AMI
30% of 60% of AMI
30% of 100% of AMI
1 Bedroom, 1 Bath
-
-
$817
-
$ 1,128
2 Bedroom, 1 Bath
$480
$755
$916
-
$ 1,335
2 Bedroom, 2 Bath
$480
$755
$916
$1,562
**
$ 1,463
3 Bedroom, 2 Bath
$525
$8311
$1,010
$1,728
**
$ 1,692
Total
Assumptions:
a,
* Rents above include reduction for Utility Allowance
* 1 bedroom unit is priced for a household of 2
* 2 bedroom unit is priced for a household of household of 3
* 3 bedroom unit is priced for a household of household of 4
** In no case will rent charged exceed market rent
4 P��
ITEM ��- •
MOORPARK CITY COUNCIL
MEMORANDUM
To: Honorable City Council
From: Nancy Burns, Senior Management Analyst
Date: December 18, 2001
Subject: EXHIBITS TO ITEM NO. 10A (CC Meeting of December 19,
2001) CONSIDER AFFORDABLE HOUSING IMPLEMENTATION AND
RENTAL RESTRICTION PLAN AND AFFORDABLE HOUSING
AGREEMENT FOR ARCHSTONE COMMUNITIES (RPD 97 -1)
The attached Exhibits are listed in the Affordable Housing
Agreement (Agreement) with Archstone Smith Operating Trust,
being presented for your consideration at the City Council
Meeting December 19, 2001.
The exhibits identified in the Agreement are as follows:
Exhibit No. 1 Legal Description (attached)
Exhibit No. 2 Affordable Housing Implementation and Rental
Restriction Plan (in your Agenda packet)
Exhibit No. 3 Assignment and Assumption Agreement
(attached)
Exhibit No. 4 Memorandum of Agreement (attached)
cc: Steven Kueny, City Manager
Hugh Riley, Assistant City Manager
Deborah Traffenstedt, City Clerk
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
Legal Description
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
Parcel B, of Parcel Map No. 3118 in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28, Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said County.
EXCEPT 50 percent of all oil, gas, petroleum, hydrocarbon and any
other kindred substances in and under a portion of said land,
except in an area beginning at the surface of said land and
continuing straight down toward the center of the earth 500 feet as
reserved by Hardy Charles, a single man, in deed recorded August
27, 1956, in Book 1437, Page 482, Official Records.
ALSO EXCEPT 25 percent of all oil, gas, petroleum, hydrocarbon and
any other kindred substances in an under a portion of said land
except an area beginning at the surface of said land and continuing
straight down toward the center of the earth 500 feet as reserved
by Hilma S. Paige, a widow, in deed recorded October 7, 1958, Book
1660 Page 460, Official Records.
PARCEL 2:
An easement for ingress and egress over the Easterly 60 feet of
Parcel "A ", of Parcel Map No. 3118 in the City of Moorpark, County
of Ventura, State of California, as shown on Parcel Map filed in
Book 28 Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said county, as provided in the deed recorded June 22,
1979 in Book 5422, Page 602 of Official Records of said county.
PARCEL 3:
An easement for road purposes over the Westerly 30 feet of Parcel
"A" of Parcel Map No. 3118, in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28 Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said county, as provided in the deed recorded June 22,
1979 in Book 5422, Page 602 of Official Records of said county.
EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
[BEHIND THIS PAGE]
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is entered into by
and among the CITY OF MOORPARK ( "City ") , ARCHSTONE SMITH OPERATING
TRUST, a Maryland real estate investment trust ( "Archstone ") and
( "Assignee ") with reference to the
following facts:
A. The City and Archstone have heretofore entered into
that certain Affordable Housing Agreement, dated as of
, including the Affordable Housing Implementation
and Rental Restriction Plan attached thereto (collectively, the
"Agreement "). The Agreement is incorporated herein by this
reference.
B. Pursuant to the Agreement, Archstone has agreed to
include and operate affordable units as part of a 312 -unit
multifamily residential housing complex (the "Project ") developed
by Archstone on certain real property described therein as the
"Property ".
C. Archstone has designated the Assignee identified
above to take title to the Property.
D. As contemplated by the Agreement, Archstone intends
to assign the Agreement to Assignee, and Assignee intends to assume
all rights and obligations of Archstone, as "Owner" thereunder.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein and other consideration, the receipt
and sufficiency of which is hereby acknowledged, the City,
Archstone and Assignee hereby agree as follows:
1. Archstone hereby assigns to Assignee all of its right,
title and interest in and to the Agreement and Assignee hereby
accepts such assignment, and assumes all of the obligations of the
Owner thereunder and agrees to be bound thereby in accordance with
the terms thereof.
2. Assignee shall accept title to the Property and be bound
by the terms and conditions of the Agreement in accordance with the
terms thereof. The Agreement and all its attachments and exhibits
shall be referred to collectively as the "Agreement."
Assignment and Assumption Agreement
Moor \arch \assign.wpd Page 1 of 3
11 -20 -01
3. Assignee shall operate the Project in conformance with
the Agreement.
4. Assignee shall assume and perform all executory
obligations of the Owner pursuant to the Agreement, without
exception.
5. City hereby consents to and accepts the assumption of the
Agreement by Assignee.
6. City hereby releases Archstone from any and all liability
on or under the Agreement arising after the date of this
Assignment. In the event of any further assignment subsequent to
the assignment of the Agreement to the Assignee identified above,
the Assignee identified above shall not be released from liability
or obligation under the Agreement except to the extent such release
is expressly approved in writing by the City upon the acceptance of
an assignment and assumption agreement applicable to such
subsequent assignment, substantially in the form of this
instrument.
7. The principal address of Assignee for purposes of the
Agreement is as follows:
[Name of Assignee]
8. This Agreement is made for the sole benefit and
protection of the parties hereto, and their successors and assigns,
and no other person or persons shall have any right of action or
right to rely hereon. As this Agreement contains all the terms and
conditions agreed upon between the parties, no other agreement
regarding the subject matter thereof, shall be deemed to exist or
bind any party unless in writing and signed by the party to be
charged. Wherever required, any consent or approval of either
party shall not be unreasonably withheld or delayed.
9. This Agreement may be executed in several duplicate
originals, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument, and
shall become effective upon execution by the parties, as indicated
by the signatures below. The signature pages of one or more
counterpart copies may be removed from such counterpart copies and
all attached to the same copy of this Agreement, which, with all
attached signature pages, shall be deemed to be an original
Assignment and Assumption Agreement
Moor \arch \assign.wpd Page 2 of 3
ii -20 -oi
Agreement. When fully executed, the date of this Agreement shall
be the later of the dates indicated below:
IN WITNESS WHEREOF, Archstone, City and Assignee have executed
this Agreement.
ARCHSTONE SMITH OPERATING TRUST
Name:
Title.
[NAME OF ASSIGNEE]
By:_
The City of Moorpark hereby accepts this Assignment and Assumption
Agreement.
THE CITY OF MOORPARK
By:
Name:
Title:
Assignment and Assumption Agreement
Moor \arch \assign.wpd Page 3 of 3
11 -20 -01
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On before me, , personally
appeared , personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the persons) 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 /their signatures) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On before me, , personally
appeared , personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name (s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signatures) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
EXHIBIT NO
TO AFFORDABLE HOUSING AGREEMENT
MEMORANDUM OF AGREEMENT
[BEHIND THIS PAGE]
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
THE REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: Agency Secretary
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement (the "Memorandum ") is made and
entered into by and between the CITY OF MOORPARK ( "City ") and
ARCHSTONE SMITH OPERATING TRUST, a Maryland real estate investment
trust( "Owner "), who agree as follows:
1. City and Owner have entered into that certain Affordable
Housing Agreement dated as of , 2001, including the
Affordable Housing Implementation and Rental Restriction Plan
attached thereto as Exhibit No. 2(referred to collectively as the
"Agreement ") with respect to the real property (the "Property ")
described as set forth in Exhibit "A" attached hereto and
incorporated herein by this reference.
2. The provisions of the Agreement to be performed by Owner,
whether affirmative or negative in nature, are intended to and
shall bind Owner and its successors and assigns at any time in
accordance with the terms of the Agreement, and shall inure to the
benefit of City and its successors and assigns.
3. This Memorandum is prepared for the purpose of recordation
only and it in no way modifies the provisions of the Agreement.
4. Reference is hereby made to the entire Agreement for any and
all purposes. A true copy of the Agreement is on file in the
office of the City Clerk of the City of Moorpark, 799 Moorpark
Avenue, Moorpark, California 93021.
IN WITNESS WHEREOF, the parties hereto have executed this
Memorandum as of , 2001.
moor \mv \memdda Page 1 of 2
5 -9 -01
ARCHSTONE SMITH OPERATING TRUST
Name:
Title:
THE CITY OF MOORPARK
BY=
Name:
Title:
moor \mv \memdda Page 2 Of 2
5 -9 -01
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On before me, , personally
appeared ' personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his/her/their behalf of on the instrument t
entity upon n
which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On before me, personally
appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signature (s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
EXHIBIT A
Legal Description
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
Parcel B, of Parcel Map No. 3118 in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28, Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said County.
EXCEPT 50 percent substances Oil,
and , under ae portion ofrbsaid nland
other kindred ,
except in an area beginning at the surface of said land and
continuing straight down toward the center of the earth 500 feet as
reserved by Hardy Charles, a single man, in deed recorded August
27, 1956, in Book 1437, Page 482, Official Records.
ALSO EXCEPT 25 percent of all oil, gas, petroleum, hydrocarbon and
any other kindred substances in an under a portion of said land
except an area beginning at the surface of said land and continuing
straight down toward the center of the earth 500 feet as reserved
by Hilma S. Paige, a widow, in deed recorded October 7, 1958, Book
1660 Page 460, Official Records.
PARCEL 2:
An easement for ingress and egress over the Easterly 60 feet of
Parcel "A", of Parcel Map No. 3118 in the City of Moorpark, County
of Ventura, State of California, as shown on Parcel Map filed in
Book 28 Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said county, as provided in the deed recorded June 22,
1979 in Book 5422, Page 602 of Official Records of said county.
PARCEL 3:
An easement for road purposes over the Westerly 30 feet of Parcel
" '-A" of Parcel Map No. 3118, in the City of Moorpark, County of
Ventura, State of California, as shown on Parcel Map filed in Book
28 Pages 59 and 60 of Parcel Maps, in the office of the County
Recorder of said county, as provided in the deed recorded June 22,
1979 in Book 5422, Page 602 of Official Records of said county.