Loading...
HomeMy WebLinkAbout11 - Termination of Expired Affordable Housing AgreementsCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 June 14, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PLANNING DEPARTMENT Jaime Murillo, Assistant Planner (949) 644 -3209, jmurillo @city.newport- beach.ca.us SUBJECT: Termination of Expired Affordable Housing Agreements ISSUE Should the City terminate two expired affordable housing agreements? RECOMMENDATION Execute Termination Agreements for two expired affordable housing agreements. DISCUSSION Background Through the process of organizing old affordable housing files, staff has discovered that the following two expired affordable housing agreements have not yet been properly terminated: Plummer Court, 309 Cypress Street On May 1, 1985, the City entered into an affordable housing agreement with Wale Development to provide one affordable housing unit at their nine unit residential condominium project as a condition of approval of Tentative Tract Map No. 12208. The agreement was for a period of ten years from the date of occupancy by a qualified moderate - income person or family, which has been determined to have commenced on October 19, 1988. The agreement has therefore expired as of October of 1998. Canyon Cove, 509 Morning Canyon On January 27, 1986, the City entered into an affordable housing agreement with Rumney Enterprises to provide one affordable housing unit at their fourteen unit Termination Agreements June 14, 2005 Page 2 residential condominium project as a condition of approval of Tentative Tract Map No. 12079. The agreement was for a period of ten years from the date of occupancy by a qualified median - income person or family, which has been determined to have commenced on July 23, 1987. The agreement has therefore expired as of July of 1997. Staff did not contact the new owners of these units in regards to reactivating and extending the agreements because of the length of time that has passed since these agreements have expired. Therefore, staff recommends the City execute the two attached Termination Agreements to properly close the files. Prepared by: J me Murillo Assistant Planner Submitted by: S aron Z. Wood Assistant City NVager Attachments: 1. Plummer Court Termination Agreement 2. Canyon Cove Termination Agreement 3. Plummer Court Affordable Housing Agreement 4. Canyon Cove Affordable Housing Agreement F:\ USERS \PLN \Shared \jmudllo \Housing Agreements\ Terminations \6- 14- 0500terminationrpt.doc ATTACHMENT 1 Plummer Court Termination Agreement 3 RECORDING REQUESTED BY AND WHEN RECORDED PLEASE RETURN TO: City Clerk City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 (Space above this line for Recorder's use TERMINATION OF AFFORDABLE HOUSING AGREEMENT This Termination of Affordable Housing Agreement is given this 14th day of June, 2005, by the City of Newport Beach, in accordance with the provisions of that certain Affordable Housing Agreement, dated May 1, 1985, by and among WALE DEVELOPMENT, a California general partnership ( "Developer"), and the CITY OF NEWPORT BEACH, a California municipal corporation ( "City "), as Document No. 85- 257075. RECITALS A. WHEREAS, Developer was the owner and developer of certain real property described in Exhibit "A" hereto, which description is incorporated be this reference (the 'Property "). B. WHEREAS, pursuant to the provisions of an approved tentative tract map (Tract No. 12208), for development of the Property, the City required the Developer to provide and maintain for a period of 10 years, one affordable housing unit and enter into a written Affordable Housing Agreement. C. WHEREAS, the terms of the Affordable Housing Agreement provided that the obligation to maintain an affordable unit for a 10 year period shall commence upon occupancy of the unit to be constructed by the Developer by a qualified family. The commencement date is determined to be October 19, 1988. D. WHEREAS, the ten year term of the Affordable Housing Agreement has expired. NOW THEREFORE, the City of Newport Beach hereby determines that the Affordable Housing Agreement has expired and shall be hereafter considered terminated and no longer of any force or effect. WITNESS WHEREOF, the undersigned have executed this Termination of Affordable Housing Agreement on the date written below. DATE Approved as to Form: City Attorney Date: City of Newport Beach A California Municipal Corporation By Steve Bromberg, Mayor Attest: City Clerk F:\ USERS \PLN \Sharedymudllo \Housing Agreements\ Terminations \PlummerTermination.DOC -2- EXHIBIT "A" TRACT 12208 RECORDED IN BOOK 542, PAGE 11 =2 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY. I STATE OF CALIFORNIA) )ss. COUNTY OF ORANGE ) 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. Notary's Signature STATE OF CALIFORNIA) )ss. COUNTY OF ORANGE ) 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. Notary's Signature F:`,USERS'PLN'SI.,edFo=v Old Foms`Fo=\STATEICA.DOC 1 ATTACHMENT 2 Canyon Cove Termination Agreement 0 RECORDING REQUESTED BY AND WHEN RECORDED PLEASE RETURN TO: City Clerk City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 (Space above this line for Recorders use only.) TERMINATION OF AFFORDABLE HOUSING AGREEMENT This Termination of Affordable Housing Agreement is given this 14th day of June, 2005, by the City of Newport Beach, in accordance with the provisions of that certain Affordable Housing Agreement, dated January 27, 1986, by and among RUMNEY ENTERPRISES, INC., a California Corporation ( "Developer'), and the CITY OF NEWPORT BEACH, a California municipal corporation ( "City "), as Document No. 86- 145985. RECITALS A. WHEREAS, Developer. was the owner and developer of certain real property described in Exhibit "A" hereto, which description is incorporated be this reference (the "Property "). B. WHEREAS, pursuant to the provisions of an approved tentative tract map (Tract No. 12079), for development of the Property, the City required the Developer to provide and maintain for a period of 10 years, one affordable housing unit and enter into a written Affordable Housing Agreement. C. WHEREAS, the terms of the Affordable Housing Agreement provided that the obligation to maintain an affordable unit for a 10 year period shall commence upon I occupancy of the unit to be constructed by the Developer by a qualified family. The commencement date is determined to be July 23, 1987. D. WHEREAS, the ten year term of the Affordable Housing Agreement has expired. NOW THEREFORE, the City of Newport Beach hereby determines that the Affordable Housing Agreement has expired and shall be hereafter considered terminated and no longer of any force or effect. WITNESS WHEREOF, the undersigned have executed this Termination of Affordable Housing Agreement on the date written below. DATE Approved as to Form: City Attorney Date: City of Newport Beach A California Municipal Corporation By Steve Bromberg, Mayor Attest: City Clerk F:\ USERS \PLN \Shared \jmurillo \Housing Agreements\ Terminations \MomingCanyonTermination.DOC _2_ 2 EXHIBIT "A" TRACT 12079 RECORDED IN BOOK 556, PAGE 42 & 43 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY. STATE OF CALIFORNIA) )ss. COUNTY OF ORANGE ) 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. Notary's Signature STATE OF CALIFORNIA) )ss. COUNTY OF ORANGE ) 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. Notary's Signature Ft USERS PLN ".Shared Forms +Old FwmsFOnms'.STATEICA.DOC ATTACHMENT 3 Plummer Court Affordable Housing Agreement J5 n l 04/22/b5 mq.o.+sP. i-- tisio�5 I•,� M3 TO BE RECORDED AND VfflEN RECORDED RETURN TO: City Clerk/I,' t�,:. 7VU �E J�eti� City of Newport Beach Fla 3300 Newport Boulevard Newport Beach, CA 92663 F_E_X_E_1V_.PT_1 C7. RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY CALIFORNIA -2 io Pni JUL 12'85- ca4- a AFFORDABLE HOUSING AGREEMENT THIS AGREEMENT is entered into this ist day of «+Deal: ('f CF `:.RT GEAPH. ' rAlff. r "1 ID85 Q- r�:Gfi a "Ty CLERK f 1985 , by and between THE CITY OF NEWPORT BEACH, a Municipal corporation and charter city, (hereinafter "City ") and WALE DEVELOPMENT, a California general partnership (hereinafter "Developer "), and is made with reference to the following facts: RECITALS A. Developer is the owner of that certain parcel of land described on Exhibit "A" attached hereto and located in the City of Newport Beach (hereinafter "The Property "). B. On 22nd day of-April 19 85 City approved Tentative Map of Tract No. 12208 to permit development of The Prop- erty with a 9 -unit residential condominium project (hereinafter "the Project "). C. City has adopted Policy P -1 containing administra- tive guidelines for implementation of the provisions of State law relative to low and moderate income housing located within the Coastal Zone., D. Pursuant to City's Policy P -1, the City Council has determined that it would be feasible to require the inclusion of a dwelling unit affordable to persons or families of moderate income (hereinafter the "Affordable Unit ") within the Project. R188 -F 04/22/85 TO BE RECORDED AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 AFFORDABLE HOUSING AGREEMENT THIS AGREEMENT is entered into this ist day of May 1985 , by and between THE CITY OF NEWPORT BEACH, a Municipal corporation and charter city, (hereinafter "City ") and WALE DEVELOPMENT, a California general partnership (hereinafter c "Developer "), and is made with reference to the following facts: Pr.rTTATS A. Developer is the owner of that certain parcel of land described on Exhibit "A" attached hereto and located in the City of Newport Beach (hereinafter "The Property "). B. On 22nd day of 'AQril , 1995 , City approved Tentative Map of Tract No. 12208 to permit development of The Prop- erty with a 9 -unit residential condominium project (hereinafter "the Project "). C. City has adopted Policy P -1 containing administra- tive guidelines for implementation of the provisions of State law relative to low and moderate income housing located within the Coastal Zone. D. Pursuant to City's Policy P -1, the City Council has determined that it would be feasible to require the inclusion of a dwelling unit affordable to persons or families of moderate income (hereinafter the "Affordable Unit ") within the Project 15 R188 -F i l 04/18/85 E. Whereas, City and Developer desire to enter into this Agreement establishing an Affordable Unit within The Project and providing for the procedures for administering the Affordable Unit. NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions stated below, the parties agree as follows: AGREEMENTS 1. Developer, for itself and for its successors -in- interest, agrees to provide, and maintain for a period of 10 years, one affordable housing unit on the site of the Project. The Affordable Unit will be a rental unit, and the ma4iigym;:renta4aat. - that can be charged occupants gtxGhaGtlirskrab71Q:% of� the = -area median - .income: :for a�.fami.lya;o o'ur (4 asTd f ned i Sett gt :50,0,93; of the Health and Safety Code of the State of California. The rental rate,may be adjusted to reflect changes in the area median income. 2. The Affordable Unit shall be, for the duration -=o.f, this: Agreement (10 years-) , occupied by- .persons_.:or.- familie§- earning 120 percent;; of.: area median . income ...... or;. Mess:,; =, °a s= that- :.tenri is - defined in_Section-50093 of the Health and Safety Code for. a.:fami-ly.'ofV 3. The Affordable Unit shall be available for occupancy by persons or a family earning 120 percent of area median income, or less, on or before the date which is six (6) calendar months after the first residential unit within the Project is occupied, and the obligation of the Developer to maintain the Affordable -2- )6 R188 -F 04/18/85 Unit for a 10 -year period shall commence as of the date the Affordable Unit is occupied by a qualifying person or family. 4. The Affordable Unit shall contain two bedrooms, and shall contain substantially the same amenities as other units within the Project with the exceptions of upgraded appliances, light and other fixtures and trim package. 5. The Developer will be responsible for ensuring that the persons or family who rent the Affordable Unit properly qualify as persons or a family earning 120 percent, or less, of the area median income. In order to ensure that the persons or family are properly qualified in terms of income level and to ensure that the process by which the occupants of the Affordable.Unit are selected is fair and equitable, the Developer shall do the following: a. Advertise the availability of the Affordable Unit on at least two separate occasions in a newspaper of general circulation within the County of Orange; b. Allow a reasonable period of time for persons or a family to apply with the Developer for rental of the Affordable Unit, and accept applications for occupancy for a period of not less than 10 days after the last date on which the availability of the unit is advertised; C. Develop for use a form that requires all information necessary to make a determination of the income earned by the person or family applying, and the Developer shall investigate the facts and representations contained in all applications submitted and /or take other appropriate action to attempt in good faith to confirm that those facts and representations are accurate; -3- 1 R188 -F 04/18/85 d. Select the occupant of the Unit through a random system such as a lottery; no preference whatsoever shall be given in the selection to any applicant who is related, either by blood or marriage, to the Developer or to any person employed by the Developer, by the City of Newport Beach, or by any governmental agency. However, nothing herein shall preclude the selection of one of such persons through the random system of selection used, and nothing herein shall preclude the rejection of a person selected through the random system for any of the following objective criteria provided the reason for rejection is provided to the rejected person(s): poor or inadequate credit rating; unstable or inadequate employment history; inability or unwillingness to provide bank account information. 6. In the event that the Affordable Unit is rented to a person or family who does not qualify under the terms of this Agreement, the Developer shall, within 90 days from the date on which it learns of the failure of the person or family to qualify, replace the occupants of that unit with persons or a family who do qualify as provided in this Agreement. In the event that Developer - is unable, for any reason within his control, to terminate the tenancy of the occupant within 90 days, the Developer shall provide a temporary replacement unit within the City of Newport Beach, affordable to and occupied by a person or family which qualifies under this Agreement. 7. The Developer shall require that the person or family selected to occupy the Affordable Unit enter into a rental agreement which shall contain at least the following terms: -4 ) 0 R188 -F 04/18/85 a. The renter shall be required, at least once a year, to provide the Developer with information regarding the income of the person or family sufficient to enable the Developer to determine if the person or family still qualifies for occupancy; and b. A provision that gives the Developer the right, in the event of a material misrepresentation made by a person or family with respect to income, or in the event the person or family no longer qualifies, as provided in this Agreement, to terminate the tenancy upon 30 days' written notice. When requalifying a tenant, an income increase occurring during the previous year of tenancy shall not disqualify a previously qualified tenant if the resulting income is not more than 10% higher than the maximum allowable income. 8. The Developer shall initially and at least once a year thereafter, submit to the Planning Director a schedule of the rental for the Affordable Unit, and the Developer shall also provide the Planning Director with information regarding the income of the occupant of the Affordable Unit that is sufficient to enable the Planning Director to determine whether that person or family qualifies under the terms of this Agreement. 9. The parties agree that any breach of this Agree- ment by the Developer will irreparably injure the City of Newport Beach and that monetary damages, or any other legal remedy, would be inadequate to remedy such a breach. The parties further agree that the City, in the event of a breach of the Agreement by the Developer, is entitled to obtain an Order of the Superior Court requiring the Developer to specifically perform in accordance -5- R188 -F 04/18/85 with this Agreement, and that the interim injunctive relief pending In the event the City is required tions of this Agreement, the City reasonable attorney's fees and co such litigation. City would be entitled to the issuance of such an Order. to enforce the terms and condi- shall be entitled to recover sts incurred in conjunction with 10. Notices required or permitted hereunder shall be sufficiently given if made in writing and delivered either per- sonally or by registered or certified mail, postage prepaid, to the following addresses, or to such other address as may be designated for formal notice: City of Newport Beach City Manager P. 0. Box 1768 Newport Beach, CA 92663 -3884 Wale Development c/o Wale Development Corp. 17752 Mitchell, Suite E Irvine, CA 92714 11. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, and shall be recorded in the County Recorder's Office, Orange County, California. 12. No change in or addition to this Agreement or any part hereof shall be valid unless in writing and signed by or on behalf of the parties hereto. 13. If any portion of this Agreement is held by a court or arbitrator of competent jurisdiction to.be invalid, void and unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated. J -6- ) 0 R188 -F 04/18/85 14. This Agreement constitutes the entire understanding between the parties with respect to the subject mater hereof, superseding all negotiations, prior discussions and preliminary agreements or understandings, written or oral. 15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, and the Developer shall, in the performance of its duties under this Agreement, comply with all applicable federal, state and local fair housing laws. 16. The parties shall each execute and deliver or cause to be executed and delivered such further instruments and documents and shall take such other action as may be reasonably required to more effectively carry out the intent and purpose of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. ATTEST: City Clerk city attorney -7- ) .4A ) R188 -F 04/18/85 Signature Page for Affordable Housing Agreement -8 WALE DEVELOPMENT, a California gene By: WALE a Ca al ,�,Z R188 -F 04/18/85 STATE OF CALIFORNIA ss. COUNTY OF ORANGE On , 1985, before me, the undersigned, a Notary Public in and for said State, personally appeared PHILIP R..MAURER, Mayor of the City of Newport Beach, and personally known to me (on the basis of satisfactory evidence) to be the person who executed the within instrument on behalf of the CITY OF NEWPORT BEACH herein named and acknowledged to me that the City of Newport Beach executed the within instrument pursuant to a reso- lution of its City Council. WITNESS my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ss. COUNTY OF ) On this the /y a- day of 19,( , before me, the undersigned, a No ary Public in and for said State, personally appeared EDWARD H. WALE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who exe- cuted the within instrument as the President, of WALE DEVELOPMENT CORPORATION, the corporation that executed the within instrument on behalf of WALE DEVELOPMENT, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such Partner and that such partnership executed the same. WITNESS my hand and off'c al seal. Sign ture [SEAL] OFFICIAL SEAL REEN E FITCH UBLIC - CALIFORNIA ANGE COUNTY expires AUG 16, 1985 -9- � 5 . EXHIBIT "A" Tract 12208 recorded in Book Sf6Z , , Page / Z of Miscellaneous Maps, Records of Orange County. ATTACHMENT 4 Canyon Cove Affordable Housing Agreement a5 4K 1 M �o TO BE RECORDED AND WHEN RECORDED RETURN cltl pEr p�N , City Clerk City of Newport Beach 3300 Newport BoulevardCtpp Newport Beach, CA 92663 C2- 5 86 =14:N, 15 t RECORDING REQUESTED BY � CONTINENTAL LAND TITLE CO. RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY. CALIFORNIA 100 PM APR 11 '86 AFFORDABLE HOUSING AGREEMENT THIS AGREEMENT is entered into this !. L— day of U�h 198 G , by and between THE CITY OF NEWPORT BEACH, a Municipal corporation and charter city, (hereinafter "City ") and RUMNEY ENTERPRISES, INC., a California Corpo- ration (hereinafter "Developer "), and is made with reference to the following facts: A. Developer is the owner of that certain parcel of land described on Exhibit "A" attached hereto and located in the City of Newport Beach (herein- after "The Property "). B. On the 5th day of March 5, 1984, City approved Tentative Map of Tract No. 12079 to permit development of The Property with a 14 -unit residential condominium project (hereinafter "the Project "). C. City has adopted Policy P -1 containing administrative guidelines for implementation of the provisions of State law relative to low and moderate income housing located within the Coastal Zone. D. Pursuant to City's Policy P -1, the City Council has determined that it would be feasible to require the inclusion of one dwelling unit afford- abler to persons or families of median income (hereinafter the "Affordable Unit ") within the-Project. 86= 145985 E. Whereas, City /and '_Developer desire to enter into this Agreement establishing an Affordable Unit within The Project and providing for the proce- dures for administering the Affordable Unit. NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions stated below, the parties agree as follows: AGREEMENTS 1. Developer, for itself and for its successors -in- interest, agrees to provide, and maintain for a period of 10 years, one affordable housing unit on the site of the Project. The Affordable Unit shall be a rental unit, and the maximum rental rate that can be charged occupants of that unit shall be 27% of the County median income, but shall not exceed 30% of the moderate income. standard for a family of two (2)1as defined in Section 50093 of the Health and Safety Code of the State of California. The rental rate may be adjusted to reflect changes in the area median income. 2. The Affordable Unit shall be, for the duration of this Agreement (10 years), occupied by persons or families earning 100 percent of County median income, or less, but shall not exceed the moderate income standard as that term is defined in Section 50093 of the Health and Safety Code for a family of two 3. The Affordable Unit shall be available for occupancy by persons or a family earning 100 percent of County median income, or less, on or before the date which is six (6) calendar months after the first residential unit within the Project is occupied, and the obligation of the Developer to maintain the Affordable Unit for a 10 -year period shall commence as of the date the Affordable Unit is occupied by a qualifying person or family. - 2 - -1 -86= 145985 4. The Affordable/Unit shall contain one bedroom, and shall contain substantially the same amenities as other units with the Project with the exceptions of upgraded appliances, light and other fixtures and trim package. 5. The Developer will be responsible for ensuring that the persons or family who rent the Affordable Unit properly qualify as persons or a family earing 100 percnet, or less, of the area median income. In order to ensure that the perons or family are properly qualified in terms of income level, and to ensure that the process by which the occupants of the Affordable Units are selected is fair and equitable, the Developer shall do the following: a. Advertise the availability of the Affordable Units on at least two separate occasions in a newspaper of general circulation within the County of Orange; b. Allow a .reasonable period of time for individuals or families to apply with the Developer for rental of an Affordable Unit, and accept applications for occupancy for a period of not less than 10 days after the last date on which the availability of the unit is advertised; C. Develop for use a form that requires all information necessary to make a determination of the income earned by the person or family applying, and the Developer shall investigate the facts and representations contained in all applications submitted and /or take other appropriate action to attempt, in good faith, to confirm that those facts and representations are accurate. d. Select the occupant of the Unit through a random system such as a lottery; no preference whatsoever shall be given in the selection to any applicant who is related, either by blood or mar- riage, to the Developer or to any person employed by the Developer, by - 3 - � } . ,. -86= 145985 4. The Affordable/Unit shall contain one bedroom, and shall contain substantially the same amenities as other units with the Project with the exceptions of upgraded appliances, light and other fixtures and trim package. 5. The Developer will be responsible for ensuring that the persons or family who rent the Affordable Unit properly qualify as persons or a family earing 100 percnet, or less, of the area median income. In order to ensure that the perons or family are properly qualified in terms of income level, and to ensure that the process by which the occupants of the Affordable Units are selected is fair and equitable, the Developer shall do the following: a. Advertise the availability of the Affordable Units on at least two separate occasions in a newspaper of general circulation within the County of Orange; b. Allow a .reasonable period of time for individuals or families to apply with the Developer for rental of an Affordable Unit, and accept applications for occupancy for a period of not less than 10 days after the last date on which the availability of the unit is advertised; C. Develop for use a form that requires all information necessary to make a determination of the income earned by the person or family applying, and the Developer shall investigate the facts and representations contained in all applications submitted and /or take other appropriate action to attempt, in good faith, to confirm that those facts and representations are accurate. d. Select the occupant of the Unit through a random system such as a lottery; no preference whatsoever shall be given in the selection to any applicant who is related, either by blood or mar- riage, to the Developer or to any person employed by the Developer, by - 3 - � 86 =145985 the City of Newport Beach, or by any governmental agency. However,__ nothing herein shall preclude the selection of one or such persons through the random system of selection used, and nothing herein shall preclude the rejection of a person selected through the random system for any of the following objective criteria provided the reason for rejection is provided to the rejected person(s): poor or inadequate credit rating; unstable or inadequate employment history; inability-or unwillingness to provide bank account information; unstable tenancy history or inability or unwillingness to provide tenant reference. 6. In the event that an Affordable Unit is rented to an individual or family who does not qualify under the terms of this Agreement, the Developer shall, within 90 days from the date on which it learns of the failure of the individual or family to qualify, take action necessary to remove the tenant from the premises and rent the unit to a qualified tenant. In the event that Developer is unable, for any reason within his control, to terminate the tenancy of the occupant within 90 days, the Developer shall provide a temporary replacement unit within the City of Newport Beach, affordable to and occupied by a person or family which qualifies under this Agreement. 7. The Developer shall require that the person or family selected to occupy the Affordable Unit enter into a rental agreement which shall contain at least the following terms: a. The renter shall be required, at least once a year, to provide the Developer with information regarding the income of the person or family sufficient to enable the Developer to determine if the person or family still qualifies for occupancy; and b. A provision that gives the Developer the right, in the event of a material misrepresentation made by a person or family with - 4 - 09 I 86145985 respect to income, or in the event the person or family no longer qualifies, as provided in this Agreement, to terminate the tenancy upon 30 days written notice. When requalifying a tenant, an income increase occurring during the previous year of tenancy shall not disqualify a previously qualified tenant if the resulting income is not more than 10% higher than the maximum allowable income. B. The Developer shall initially and at least once a year-thereaf- ter, submit to the Planning Director a schedule of the rental for the Affordable Unit, and the Developer shall also provide the Planning Director with informa- tion regarding the income of the occupant of the Affordable Unit that is suffi- cient to enable the Planning Director to determine whether that person or family qualifies under the terms of this Agreement. City agrees that Exhibit "B" shall be deemed to be adequate income information for this provision. 9. The parties agree that any breach of this Agreement by the Developer will irreparably injure the City of Newport Beach and that monetary damages, or any other legal remedy, would be inadequate to remedy such a breach. The parties further agree that the City, in the event of a breach of the Agree- ment by the Developer, is entitled to obtain an Order of the Superior Court requiring the Developer to specifically perform in accordance with this Agree- ment, and that the City would be entitled to interim injunctive relief pending the issuance of such an Order. In the event the City is required to enforce the terms and conditions of this Agreement, the City shall be entitled to recover reasonable attorney's fees and costs incurred in conjunction with such litiga- tion. 10. Notices required or permitted hereunder shall be sufficiently given if made in writing and delivered either personally or by registered or - 5 - 5 b ' 86.145985 certified mail, postage prepaid, to the following addresses, or to such other address as may be designated for formal notice: City of Newport Beach City Manager P.O. Box 1768 Newport Beach, CA 92658 -8915 Rumney Enterprises, Inc. c/o Richard Rumney 5 Northgrove Irvine, CA 92714 s __ 11. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, and shall be recorded in the County Recorder's Office, Orange County, California. 12. No change in or addition to this Agreement or any part hereof shall be valid unless in writing and signed by "or on behalf of the parties hereto. 13. If any portion of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid, void and unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 14. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and preliminary agreements or understandings, written or oral. 15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, and the Developer shall, in the performance of its duties under this Agreement, comply with all applicable Federal, State and local Fair Housing Laws. 16. The parties shall each execute and deliver or cause to be execut- ed and delivered such further instruments and documents and shall take such - 6 '31 86� 1 45985 other action as may be reasonably required to more effectively carry out tJie intent and purpose of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. ATTEST: W v4=4 -1 Wall APPRO D AS TO FORM: City Attorne STATE OF CALIFORNIA, COUNTY OF orange u. CITY OF NEWPORT BEACH 86 :145985 On this 41tt` day of in the year/ �1 6 , bef me the undersigned a Notary Public in and for said Stat6 personally appeared yzev known to me to be the Mayor of the City of Newport Beach and ,,,�, f� .�;, known to me to be the City Clerk of the City of Newport Beach and known to me tc e the persons who executed the within instrument on behalf of said governmental agency, and acknowledged to me that such governmental agency executed the same. WITNESS my hand and official seal. Noh Public in and for said State. OFFICM SEAT DOROTHY L. PALEN NOTARY PUBLIC f.GLIFORNIA _ PRINCIpQ OFFICE IN ORANGE CWNTY My CAmmiiTian Eap. Apr. 5, 1989 n a STATE OF CALIFORNIA ss. COUNTY OF ORANGE 86- 14596 On , 19 , before me, the under- signed, a Notary Pub_ _ and for said State, personally appeared Mayor of the City of IoT_—t Beach, personally known to me (or proved to me on the basis c= = isfactory evidence) to be the person who executed the within i =Ant on behalf of the CITY OF NEWPORT BEACH, herein named and ack=c_sged to me that the City of Newport Beach executed the within gent pursuant to a resolution of its City Council. WITNESS my 1z� =d official seal. [SEAL] STATE OF CALIFORNIA ss. COUNTY OF ORANGE NOTARY PUBLIC On this the day of 198k, before me, the undersi. zd�,�t$ _i.c in a d for aid State, personally ap- peared tl.:;:� , personally known to me (or proved to me or, = --as Ys of satisfactory vidence) to be the person who executed `- --'yin strument as the of ry /fin r(L Zae+S ! , the Corporation that executed the within irfbtrunena _ acknowledged to me that such corporation executed the within i_ — ent pursuant to its by -laws or a resolution of its board of direc-� WITNESS my `= End official seal. [SEAL] G ,,,P.c — NOTARY PUBLIC OFFUNAL SEAL HOUSE2 BERNARD F. SELZ �r Pubft4 famla AN" COUIM .. camm. Evp. Oot 14, ISM 0 1. .. . .. W O a 0.F F wa W Q F O y U aH P4 w i Z rO E+ i H F 34aa .7 x a N C. .3 Z NF [G H w 86 =145985 a w o U O H o 2 H W z W U F cn Z H i+ t� H a Y w H OJ O W (� w ft. N M c} {Rp'•i Z w £ x 86 =145985 a w o U O H o H W n W U s cn Z H t� H Y H OJ W w LI U F FIG H fA Y a H En U O 'O N a a co w O) W U Z z 0) O N W W O U! H ,GNG ; > O N En U N N y a° E (1 O W U) a w W H Q En U Z a �a qqq F 4 n H n s H Y H Z w FIG Y F U O 'O [A Q U O Y co O) W r En En z 0) O N W ,GNG ; > O N E U N N y a° E r F H a H Qi H H a W Y C/ G U E G RC H y E w 00 O H G G W H H 1 86::145985 EXHIBIT "A" TRACT 12079 RECORDED IN BOOK 556 c: PAGE 42 & 43 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY. S�