24 Gould Street LLC ℅ Traggorth Companies LLC 50 Summer Street Boston, MA 02110
August 7, 2017
Julie D. Mercier, AICP Community Development Director Town of Reading 16 Lowell Street Reading, MA 01867
RE: 20-24 Gould Street Application for Redevelopment
Dear Ms. Mercier,
Enclosed you will find the application for 20-24 Gould Street in Reading’s Downtown Smart Growth District.
In developing the design and program for the site we consulted the Reading Town Master Plan (2005), the Housing Production Plan (2013), and the recently completed Town of Reading Economic Development Action Plan. The Town already has many strengths, but as you will read in the application, this project, with its mix of affordable and market rate housing over retail will help the town achieve many consistently stated goals in these reports. In addition, we have brought together a development team that has the reputation,track record, and skills to finance, build, and operate the project successfully.
On behalf of the entire development team, we are excited to be submitting this proposal, appreciate the guidance you and Andrew have provided to date, and look forward to working together with the Town to advance this important project.
Sincerely,
Dave Traggorth 24 Gould Street LLC
24 Gould Street Redevelopment August 7, 2017 ─
24 Gould Street LLC ℅ Traggorth Companies LLC 50 Summer Street Boston, MA 02110
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Table of Contents
Table of Contents 1
Development Team 3 Joint Venture Developers 3 Traggorth Companies LLC 3 Civico Development 3 Architect 3 Olinger Architects 3 Landscape 4 Verdant Landscape Architecture 4 Civil Engineer/Traffic 4 Design Consultants, Inc. 4
Development Team Project Profiles 5 J.M. Lofts◾Haverhill, MA◾Traggorth Companies◾www.jmlofts.com 5 Mosaic on the Riverway ◾Boston, MA◾Traggorth Companies 6 Cable Mills◾Williamstown, MA◾Traggorth Companies◾www.cablemills.com 7 Abbey Road◾Sherborn, MA◾Civico Development◾www.abbeyroadsherborn.com 8 Inman Crossing◾Cambridge, MA◾Civico Development 9
Development Narrative 10 Description of the Property & Current Use 10 Plot Plan 10 Summary Table of Existing Parcel 11 Proposed Plans 11 Project Goals 11 Housing 11 Retail & Commercial 12 Accessory Uses Supporting Retail/Commercial and Residential Uses 12 Honoring Site History 13
Zoning/40R Criteria 14
Design Standards Summary Tables and Narrative 17 Summary Table 17 Narrative 18 Front Facade Setback (7.1.1) 18 2
Building Step Back (7.1.2) 18 Building Proportions and Appearances (7.1.3) 18 Appearance (7.2) 19 Building Entries (7.3) 19 Fenestration (7.4) 19 Building Exterior Materials (7.5) 19 Sidewalks (8.1) 20 Driveways and Parking (8.2) 20 Landscaping (8.3) 20 Lighting (8.4) 20 Utility Areas and Utilities (8.5) 20 Drainage and Stormwater Management (8.6) 21 Stormwater Operations and Maintenance Plan (8.6.3) 21 Building and Property Signage (9.1 - 9.3) 21 Awnings (9.4) 21
Waivers Requested 22 Density: Unit/Acre 22 Parking 23 Off Street Loading & Deliveries 23 Tree Removal 24
Proof of Site Control 25
Existing Conditions Survey/Plot Map 26
Certified List of Abutters 27
Form of Affordable Housing Restriction Agreement Photographs of Property
Photographs of Adjacent Property
Trip Generation Memo
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Development Team
Joint Venture Developers Traggorth Companies LLC Traggorth Companies (“TC”) develops high-quality mixed use, infill projects that revitalize, restore, and contribute to the economic development of the communities in which they are based. TC is located in Boston and since it’s inception in 2012, has developed numerous award winning projects, all in Massachusetts, recognized for their thoughtful inclusion of affordable and workforce housing, reuse of formerly industrial brownfield sites, and partnerships with municipalities and local owners. Selected project examples are in the following pages and more examples can be found at www.traggorthcompanies.com
Civico Development Civico Development (“Civico”) is a community-focused real estate investment and development group founded around a commitment to quality design, historic preservation and neighborhood-oriented infill development. Civico’s mission is to design and construct high quality buildings, streetscapes, and neighborhoods that significantly enhance the social livability and environmental sustainability of our communities. Civico’s work incorporates projects of all scales, focused on walkability and human scale development. Selected project examples are in the following pages and more about Civico can be found at www.civicodevelopment.com
Architect Olinger Architects Jeffrey Olinger AIA is the founding principal of Olinger Architects (“OA”) a full service architectural design firm based in Cambridge, Massachusetts. Olinger Architects’ portfolio features a broad range of projects that seek to harmonize the environmental, cultural, and economic forces that influence a design. OA’s recent work includes a new 38,000 SF mixed use development at 305 Webster Avenue in Cambridge, MA with Civico. Prior to founding Olinger Architects, Jeff was an architect for the award-winning design firm William Rawn 4
Associates, where Jeff contributed to several notable building projects for clients such as Harvard Business School and the Boston Public Library. Jeff is a LEED Accredited Professional and a Registered Architect in the Commonwealths of Massachusetts and Virginia. Jeff was recently recognized as a 2016 national American Institute of Architects Emerging Professional, and was a presenter for the AIA at the United Nations Habitat III Conference in Quito, Ecuador. Jeff is educated as an Architect and Fine Artist, having received a Bachelor of Fine Arts from Parsons School of Design, and a Masters in Architecture with Distinction from Harvard University.
Landscape Verdant Landscape Architecture Blair Hynes and Katya Podsiadlo are partners of Verdant Landscape Architecture (“Verdant”) and they bring extensive experience developing designs for environmentally mindful clients that express their conservation values. This understanding guides us in imagining alternative design solutions that realize client needs. With more than 30 years as a landscape architect, Blair is experienced in a wide variety of project types including design for institutional and municipal projects, commercial and residential developments, cemetery, conservation planning and residential design.
Civil Engineer/Traffic Design Consultants, Inc. Design Consultants, Inc. (DCI) is a leading civil and transportation engineering, planning and land surveying firm with offices in Somerville, MA (main office), Quincy and Newburyport.
DCI's services include transportation engineering, traffic studies, water/wastewater, stormwater, geotechnical, survey, GIS mapping, site development, and solid waste/hazardous waste. DCI’s clients are municipalities, state agencies, developers, architects, law firms and other consulting companies.
DCI’s mission is to provide clients with innovative, cost effective solutions for their diverse projects and business challenges.
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Development Team Project Profiles The following projects were developed and managed by Traggorth Companies LLC and Civico Development where noted.
J.M. Lofts◾Haverhill, MA◾Traggorth Companies◾www.jmlofts.com
Located in the heart of Haverhill's Historic Washington Street corridor, the project involved the complete rehabilitation of the 20,000+ square foot building into ground floor retail with 18 one and two-bedroom lofts. The lofts feature 10+ foot tall ceilings, exposed brick, large efficient windows with generous natural light, high efficiency mechanical systems, a full service elevator to each floor, and well appointed kitchens and baths. The retail is now occupied by Battle Grounds Coffee, a locally owned and operated coffee, wine, and beer hangout. Construction was completed in May 2016 and fully occupied 2 months later.
Relevance to 24 Gould Street: Reuse of a key parcel downtown and ideal retail space build out to support local business owner start-up idea.
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Boston, MA Traggorth Companies Mosaic on the Riverway ◾ ◾ 42 market condominiums, 43 affordable condominiums, 60 affordable rental apartments, and 9,000 square foot early education facility completed in the Fall of 2016. Mosaic brings high quality market rate and affordable for-sale and rental housing options for the diverse and growing workforce of the Longwood Medical Area of Boston’s Mission Hill Neighborhood. Project development costs exceeded $63M. The market rate condominiums were pre-sold prior to completion, the affordable rental units are completely occupied and TC is closing out the remaining affordable sales in the next two months.
Relevance to 24 Gould Street: Involved the demolition of an historic property listed on the National Register that could not be reused for housing or office (the Massachusetts Mental Health Hospital) and new construction of a mixed income, mixed use building to serve modern needs of the city.
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Cable Mills◾Williamstown, MA◾Traggorth Companies◾www.cablemills.com
Cable Mills involved the restoration and rehabilitation of a centuries-old mill immediately adjacent to Williams College and the Green River into 61 loft apartments, of which 13 are designated as workforce housing. The project provided a maintenance free lifestyle that was within walking distance of the shops and restaurants along Williamstown’s main commercial street. The project was completed in the Spring of 2016 and was fully leased within two months of opening.
Relevance to 24 Gould Street: Involved the rehabilitation of a property in the main commercial district that boosted economic development of surrounding businesses and spawned further infrastructure investments.
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Sherborn, MA Civico Development www.abbeyroadsherborn.com Abbey Road◾ ◾ ◾
Abbey Road is a community of 18 individually-crafted homes for active adults (55 years and older) in the quintessential New England town of Sherborn, Massachusetts. The homes are grouped around a common center green to promote a close-knit sense of community and neighborliness. This “pocket neighborhood” is an exciting new concept in residential neighborhood design, rarely found in New England. Abbey Road is designed to be an energy efficient, eco-friendly community that will reduce the costs of living for its residents through the reduction in energy consumption. By building towards the guidelines set forth in the USGBC LEED for Homes program and Energy Star, Abbey Road is a model of responsible and sustainable building practices. Relevance to 24 Gould Street: Incorporation of new construction, LEED Certified, on a historic site in a small town through thoughtful design to meet the needs of the town (55+ housing). Within walking distance to the commercial center of Sherborn.
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Inman Crossing◾Cambridge, MA◾Civico Development
The project will provide 35 new units of housing, which includes 4 units for Cambridge’s Inclusionary Housing Program. The project features an array of high-performance building features, and is slated to receive a LEED Gold rating. Relevance to 24 Gould Street: Civico and Olinger design team with over 35 years of combined experience designing desirable, sustainable, urban infill, smart growth projects.
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Development Narrative
Description of the Property & Current Use The property proposed for redevelopment is 20-24 Gould Street bounded to the north by Gould Street, 34 Gould Street to the west, 16-18 Gould on the east, and 18-28 Green Street to the south. In addition to surface parking which serves the building, the property currently has a +/- 14,000 square foot one story brick, timber, and steel frame building which has had many additions and modifications over the years. The building is currently used as an adult day program facility operated by EMARC (East Middlesex Association for Children). They are completing their tenancy in October 2017 and consolidating their operations elsewhere. At that time, the building will become vacant. The property and building has a substantial deferred maintenance backlog.
Plot Plan Below is a plot plan showing the parcels included in the development. In addition, a more detailed survey is available later in the application at the Existing Conditions Survey/Plot Map
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Summary Table of Existing Parcel Description Current
Lots 2 contiguous lots which are on the Reading Assessors Maps: Map 16, Lot 304 Map 16, Lot 303
Combined Lot Area 30,745 square feet .705 acres
Combined Frontage +/- 216’
Building Square Footage +/- 14,000 Class C Office/Classroom
Use EMARC (non profit)/vacant
Parking Spaces +/- 38 Spaces
Height +/- 15’
Town of Reading Appraisal $1,307,000
Proposed Plans “Reading is committed to strengthening existing businesses, attracting new ones, and expanding the resident base that is needed to support a growing local economy” -- Town of Reading Economic Development Action Plan 2016-2022
Project Goals In response to the Town of Reading Economic Development Action Plan quoted above, the project’s goals are to 1) meet the housing needs of current and new residents of Reading, 2) contribute to the the success of retail and commercial in the district, and 3) elevate the important stories about the innovations that took place on the site over it’s history as home to the Ace Art Company.
Housing “Housing and population projections estimate that Reading will require an additional 950 housing units town-wide by 2020.” -- Town of Reading Economic Development Action Plan 2016-2022 The project will contribute to town-wide housing production goals by creating 61 units of housing on floors two through four. Between 16 to 25 of the units affordable per the terms of the agreements and restrictions outlined in the application. The affordable unit mix will be at least proportional to the unit mix of the entire building per Zoning Bylaw requirements. The final number of affordable units will depend upon financing source 12
requirements. Of the 61 units, 39 will be one-bedroom, 16 will be two-bedroom, and 6 will be three bedroom. Residents will enter the building through either the parking area or sidewalk entrance on the ground floor to a residential lobby with accessory uses serving the residential such as a mailroom and management office. The elevator will serve all occupied floors of the building. An expanded, diverse resident base within walking distance to shops, restaurants, and civic uses will support the growth and success of businesses and institutions. 20-24 Gould Street will place new residents within walking distance of many downtown local businesses. In addition, these new homes will provide single-level living with an elevator, high ceilings, tall windows, and modern finishes and conveniences. The development team’s experience shows that these qualities, combined with close proximity to transit, especially appeal to current and new residents of Reading who would like to downsize, and current and new residents of Reading who are just starting their careers and see this as their first home.
Retail & Commercial The project also includes approximately 3,813 square feet feet of ground floor retail and commercial space that will be built to standards and codes that will provide a new or expanding business with the right space and fit out that they require. The retail and commercial will also have immediately accessible outdoor seating areas as a result of the setbacks provided. Retail within existing older buildings is difficult for young businesses to outfit and bring up to modern code, therefore, the development team purposefully develops retail and commercial spaces with HVAC, exhaust, and other capital intensive code requirements so as to provide the easiest path to opening and success for local businesses. Examples include J.M. Lofts and Mosaic on the Riverway. Accessory Uses Supporting Retail/Commercial and Residential Uses In addition to the ground floor commercial space, the project will have a trash room, management office, mechanical rooms, bike storage, common room, and parking in support of residential uses. 61 parking spaces will be accessible from Gould Street but concealed by the building and the ground floor uses. One curb cut along Gould Street will be eliminated as a result of the project. There is currently a minimal amount of open space on the site. Once completed, in addition to many units having balconies directly accessible to their units, there will be a shared southern facing courtyard open to residents. This courtyard will be professionally designed and act as a ‘green roof’ over the concealed parking below.
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Honoring Site History The site is the former home of the Ace Art Company which invented the mounting corners for photo albums. Lester S. Riley designed the concept and machine for producing them in bulk which was protected by patents and had little competition at the time1. As exemplified by the project portfolio described earlier in this application, the development team utilizes historic rehabilitation for conversion into mixed use buildings wherever possible. Unfortunately, the building footprint, massing, and materials of the current building do not lend itself to such a conversion, and make it impossible in its current form to meet the allowed uses of the Downtown Smart Growth District under the Bylaw 10.5.5.1 where office, retail, restaurant, or institutional are allowed only as part of a mixed use development. The site does not have a historic preservation restriction. However, as was the case with Mosaic on the Riverway, another project developed on a historic site that required demolition of an existing 1900’s building, there are steps that can, and will be taken to honor the history of the site and its contribution Reading’s history. Specifically, the development team will work the relevant groups in Town to implement the following as the project is developed. ● Incorporate design details from the current building into the new building. ● Design a site history exhibit within the lobby of the new building. ● Place an informational plaque accessible to the public on the outside of the building noting the history of the site. ● Explore branding/naming of the building to reference it’s history.
1 Massachusetts Historical Commission Inventory Form for REA.170 14
Zoning/40R Criteria
The development will conform with the purposes of the Town’s Downtown Smart Growth District (Bylaw Section 10.5.1) as follows: To provide an opportunity for residential development and to especially encourage mixed-use development, including both new construction and renovation of existing buildings, within a distinctive, attractive and livable environment that supports the commercial revitalization of Downtown Reading. ● The project is mixed use incorporating residential over boutique retail/commercial. ● The management office, and the special events they host there for new and existing residents, will create life and activity along the streetfront from the moment the building opens. ● New residents will be within walking distance of existing and new businesses further supporting and expanding their client base. ● Building management will actively promote and market local businesses that residents may not be aware of and encourage them to visit. ● The residential portion of the building will not contain amenities that will compete with local businesses.
To promote continuing development and redevelopment in Downtown Reading that is pedestrian friendly and consistent with Reading history and architecture. ● The project expands the sidewalk along Gould Street in key locations to allow for a more pedestrian friendly experience for residents, retail visitors, and the general public. ● When complete, there will be one curb cut along Gould Street instead of two large curb cuts. ● The expanded sidewalk also allows for potential outside dining/seating. ● The design is consistent with the design standards and will honor the history of the site as the former home to the Ace Art Company.
To ensure high quality site planning, architecture and landscape design that enhances the distinct visual character and identity of Downtown Reading and provides an environment with safety, convenience, and amenity. ● The project team includes experienced and talented civil, architecture and landscape designers. ● The design is consistent with the design standards. 15
● The design includes generous amounts of public and private open spaces (terrace, courtyard, sidewalks) that will be professionally designed and maintained.
To provide for a diversified housing stock at a variety of costs within walking distance of services and public transportation, including affordable housing and other housing types that meet the needs of the Town’s population. ● The project will provide well-designed one to three bedroom single-level living units served by an elevator and covered parking as an alternative to the single-family housing stock already in place. ● The project will meet or exceed the affordable housing requirements mandated by the by-law. ● This style of living appeals to existing Reading residents who want to downsize but stay in town and near civic events, shopping, restaurants, and transit. ● This style of living also appeals to new Reading residents who are looking housing that is close to transit into Boston and the 128 corridor.
To generate positive tax revenue for the Town and to benefit from the financial incentives provided by Massachusetts General Law Chapter 40R, while providing the opportunity for new business growth and additional local jobs. ● The building is currently assessed at $1,307,000 and when completed will be assessed at a much greater value increasing tax base and receipts ● The development within the newly expanded 40R would allow the town to leverage the the MGL 40R incentives. ● Approximately 60 short-term construction jobs would be created. ● Approximately 2.5 long-term property management jobs would be created. ● Approximately 5-10 new full time retail/commercial jobs would be created depending upon the uses. ● In addition, the Town would collect one-time and ongoing permit and licensing fees.
To encourage preservation and rehabilitation of historic structures and buildings. ● The design team will incorporate design features of the existing buildings into the new design where possible. ● The project will elevate the important stories and history of the site and its relationship to the Ace Art Company. ● The design team team will feature the history of the Ace Art Company prominently in the building lobby, and take other measures outlined in this application. 16
● The design team will place a plaque on the exterior of the building, accessible to the public featuring information about the history of the site.
To promote efficient use of land and existing parking supply and limit expansion within the district by encouraging shared parking. ● Parking is covered and not visible from any public way. ● The project will partner with ZipCar and other shared services wherever possible. ● The project will provide electric vehicle charging stations.
To encourage adoption of energy efficient building practices and sustainable construction methods ● The building will be built to LEED Silver standards. ● The roof will be solar ready and the portions of the parking that are not covered by the building will be covered by a green courtyard.
To ensure compliance with the Massachusetts Department of Environmental Protection stormwater management policies. ● The project will meet all applicable standards.
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Design Standards Summary Tables and Narrative
The project is compliant with the Downtown Smart Growth Design Guidelines (“DSGD Design Guidelines”) and in line with the guiding principles outlined in Section 6. As explained in this application and attachments, the project is mixed use and will bring new business and residents to Reading, will enhance the downtown through sidewalk improvements and increased pedestrian activity, will be have a compatible design, will elevate the important stories and innovations on the site over its history, and will feature sustainable designs and materials.
Summary Table The following summary tables provides a snapshot of the project as compared to the Bylaw benchmarks.
Description By-Law Proposed
Density: Maximum FAR 2.8 2.11 (64,989 sf/30,745 sf)
Density: Units/Acre 20 units/acre 86 units/acre (61 units)
Height 45’ 42’ to roof, 45’ to parapet
Lot Frontage 50 feet min, 300 feet max No change, compliant +/- 216’
Front Setback 0 feet min, 10 feet max Varies, does not exceed 10’
Min Side/Rear if abutting a 15 feet N/A we do not abut a residential zone residential zone
Min Side/Rear in DSGD or 0 feet +/- 1 feet on ground floor, abutting business district +/- 5 feet or more on upper floors
Interior Setback Between 15 feet N/A Buildings on the Same Lot
Affordable Units 25% rental Between 25% and 41%
Parking: Retail/Restaurant 0 0
Parking: Residential Units 1.25 per unit 1 per unit (61 parking spaces) 18
Parking: Office/Institutional 2 spaces per 1000 sf 0 - *compliance depends upon final placement of demising wall and adjacent space use (see Waivers) Parking: Other 0 0 Non-Residential > 2,000 sf
Parking: Other 1 space per 2,000 sf 0 - *compliance depends Non-Residential < 2,000 sf upon final placement of demising wall and adjacent space use (see Waivers)
Narrative Explanations of how the building meets Section 7 (Building Design Standards), Section 8 (Site Design Standards), and Section 9 (Signage Design Standards) of the DSGD Design Guidelines follows below.
Front Facade Setback (7.1.1) The minimum setback line is 0’, the maximum is 10’ in the Downtown Smart Growth Overlay District. The maximum setback at ground floor is permitted where the space between the facade and setback is specifically designed for pedestrians uses. The entire front facade facing Gould Street is no more than ten feet from the front lot line and therefore in compliance with 7.1.1 of the DSGD Design Guidelines. The design of the front facade setbacks provide variety and articulation in building entries and opportunities for outdoor seating, as well as ample room for street trees along Gould Street.
Building Step Back (7.1.2) The front facade facing Gould Street provides for a 5’ step back from the primary building face at the second level and fourth level over 50% of the overall length and is in compliance with the DSGD Design Guidelines. The building does not abut a residentially zoned district. However, the rear facade facing Green Street provides for a 5’ step back from the primary building face at the second level with an additional 5’ set back at the fourth floor. The goal in incorporating these design features is to create a pedestrian friendly, human scale proportion to the Gould Street facade and provide adequate separation between abutting properties.
Building Proportions and Appearances (7.1.3) The first story of the front facade along Gould Street is designed to reflect a dominant horizontal proportion and taller first floor, allowing the commercial use to reinforce the 19
public zone. The residential use above the ground floor commercial is predominantly a two and three story vertical expression, contrasting with that of the larger public size first floor. Along Gould Street, a series of projecting bays, recesses and a variety of balconies, provide scale and break down the facade that is over 40’ in length, complying with 7.2.1 under the DSGD Design Guidelines.
Appearance (7.2) The project complies with Section 7.2 of the DSGD Design Guidelines. Projecting bays, recesses, and cornices occur at all floor levels, horizontal elements are combined with vertical elements to clearly define proportions and uses. The Gould Street facade elements wrap around side lot lines while rear facades are simplified in order to blend into surroundings. Mechanical equipment will be set back from the Gould Street facade so that it is not visible from street views, while screening elements will provide for acceptable decibel levels and mitigate equipment noise. Where possible facade detailing will honor that of the building currently on site and any building or retail branding will be made consistent with the standards established by the Town.
Building Entries (7.3) The commercial entries along Gould Street will be primarily transparent and face the public sidewalk. The residential entries will be separated from the commercial entries as required in the District By-Law, and will be clearly articulated with a projecting canopy that will not extend into the public way. Storefronts and canopies will be prepared to accommodate signage in compliance with the standards established by the Town.
Fenestration (7.4) Consistent with 7.1.3 of the DSGD Design Guidelines the commercial use will be dominantly horizontal in appearance, while the upper stories of residential will be primarily vertical. The first floor will be a minimum of 60% clear glass, and have a larger height than that of the upper floors, reinforcing the public nature of the sidewalk. Each retail and commercial storefront will have either an awning or canopy, providing shelter, scale and identity to the ground floor tenants and public zone. The upper floors will have operable windows and a variety of balconies and terraces, providing an “eyes on the street” mentality, affording safety through community.
Building Exterior Materials (7.5) The first floor along Gould Street will be predominantly masonry and glass storefront, providing a low maintenance, durable and high quality material aspect to the public zone. Detailing will mirror the brickwork found on the existing building. Upper floors will also be masonry or cementitious panels, with a change in scale, color and/or articulation. Facades 20
along the side and rear setbacks will be of either cementitious panels composite siding, detailed and installed in a manner consistent the DSGD Design Guidelines.
Sidewalks (8.1) The front facing sidewalk along Gould Street will be continuous and consistent in material and dimensions, other than providing opportunities for special enhanced areas highlighting recessed entries and outdoor spaces that are devoted to outdoor dining.
Driveways and Parking (8.2) The primary vehicular entrance is located towards the end of the building facade along Gould Street, to minimize the interruption of the pedestrian walkway. The parking for all building users and residents will be interior on the first floor, behind the retail, minimizing any large open paved areas that detract from the pedestrian environment facing Gould Street. Shared parking will be incorporated into the design of the parking, creating an efficient use of all spaces.
Landscaping (8.3) The sidewalk along Gould Street will contain street trees consistent with the planting plan established by the Town of Reading, providing shade and reinforcing the commercial scale to the first floor facade. Minimal landscaping will be incorporated, such as plants, grasses, and bushes but not to interfere with the retail visibility. Where applicable, landscaping will be incorporated into areas along the sidewalk areas to define outdoor seating and building entries. Within the second floor terrace level facing south toward Green Street, landscape and hardscape will enhance this usable open space. The area will be accessed only by the building tenants as a building amenity and building community space. Thought will be given to the abutters directly facing this open space, with landscape design features that mitigate sound and offer privacy.
Lighting (8.4) Facade lighting along the front facade of Gould Street will articulate the building entries, signs, and also provide lighting for public safety along the sidewalk. Lighting within the Terrace Level Courtyard will be kept minimal as to not impede upon abutters privacy. Low architectural lighting will designed so building tenants can safely utilize the open space when dark.
Utility Areas and Utilities (8.5) Gas. electrical, water/sewer, tel/data and other utilities will all be delivered to the site underground. A grease trap, and oil separator will be connected to the existing sewer line. 21
Trash for the property will be behind the management office, away from the public sidewalk along Gould Street. There will be recycling bins provided for building tenants, trash chutes from upper floors leading directly into the waste disposal containers.
Drainage and Stormwater Management (8.6) The stormwater management system will incorporate Best Management Practices and Low Impact Development Strategies in accordance with the ByLaw and MassDEP Stormwater Management Handbook. All surface runoff from the property will be retained on site where possible as determined by the Town and the design team.
Stormwater Operations and Maintenance Plan (8.6.3) A Long Term Operations and Maintenance Plan will be prepared and submitted for approval once the Final Stormwater System is designed and approved.
Building and Property Signage (9.1 - 9.3) Signage will be provided and architecturally incorporated as to identify residential entries and not exceed 16 square feet. There will be one primary residential entrance along Gould Street. All Commercial signs will primarily for retail tenants along Gould Street will be compliant with 9.2 of the DSGD Design Guidelines.
Awnings (9.4) Awnings along Gould Street for both residential and commercial purposes will be made of either metal, glass or fire resistant fabric.
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Waivers Requested
Per Section 10.5.12 of the Bylaw, the CPDC may “waive dimensional and other requirements, including design standards, with conditions, in the interest of design flexibility and overall project quality, and upon finding of consistency of such variation with the overall purpose and objectives of the Downtown Smart Growth District and the Reading Master Plan, or if it finds that such a waiver will allow the project to achieve the density, affordability, mix of uses and/or physical character allowed under Section 10.5” The development team respectfully requests the following waivers from the CPDC in order to achieve the desired objectives of the Downtown Smart Growth District.
Density: Unit/Acre The proposed density per acre is 86 and the development team requests a waiver from the Bylaw’s benchmark of 20 units/acre per Section 10.5.6.1. This needed waiver is similar across many projects built or under review in the Downtown Smart Growth District. The development team is meeting other benchmarks that allow the density to be accommodated while also providing for an attractive, functional, and desirable building: ● The project complies with the FAR density requirements (the project has an FAR of 2.11 with a benchmark of 2.8) which drive the allowable size, massing, and scale of the building, ● The project meets the height limits, ● The project meets the setbacks requirements along the sidewalks that facilitate retail outdoor dining, ● The project conceals the parking, ● The project provides added open space on the sidewalk and within the public and private spaces of the building ● The project steps back the facade to meet aesthetic requirements To meet this benchmark, the design team could design larger units with more bedrooms, but these units would not meet the market demand (well designed one and two bedrooms), would place higher demands on the parking, and overall make the project economically infeasible. It would also be in conflict with the Reading Master Plan which states that “the trend toward increasingly smaller household sizes will continue a demand for housing units” and “increase in empty nesters and early seniors may fuel a need for smaller units that are easy to maintain”2
2 Page 33, https://www.readingma.gov/sites/readingma/files/file/file/chapter_5_-_housing.pdf 23
Granting the waiver also allows the development team the achieve higher energy performance than code requires (LEED Silver) and also allows us to incorporate open spaces into the property while accommodating for parking needs. Using urban infill sites such as this in a thoughtful, dense design to achieve more housing near shops, transit, and existing infrastructure is a more efficient use of town resources, encourages public transit, walking, and biking, and promotes economic development by locating residents near retail businesses. The alternative of building housing far from other uses, that needs new infrastructure built is far less efficient and environmentally friendly.
Parking Per Section 10.5.8.1, the parking requirement for residential units is 1.25 spaces per unit. The development team requests a waiver by providing 1 space per unit per Section 10.5.8.4. This location is transit oriented with immediate access to the Reading Commuter Rail and locates residents near shops and businesses. The development team is confident that the proposed parking ratio will meet the practical needs of residents while encouraging the use of alternative modes of transit, and shopping locally for goods and services. The current plan finds the balance between market demand which continues to decline in transit oriented locations, setbacks along the public sidewalk, and retail and commercial space sizing. In addition, going below ground in order to build more parking is not feasible as a result of 1) the cost to build underground parking, and 2) the public storm-water drain that travels under the property and is protected by an easement. To further encourage alternative uses, the development team will seek out shared car usage through ZipCar or an equivalent, provide electric vehicle charging stations, and is proposing a bike room for resident bike storage. The building will comply with retail and restaurant of off-street parking per Section 10.5.8.1. In addition, to the degree that the CPDC requires a waiver for office or institutional uses, or other non residential uses, which will in part depend on the final placement of the demising wall and abutting use, the development team requests such a waiver.
Off Street Loading & Deliveries Per section 10.5.8.2 of the bylaw if the use of the ground floor is a restaurant, then one space per 2,000 square feet would be required, if the use of the ground floor is other secondary uses, then one space per 5,000 square feet would be required. The entire proposed ground floor space is 3,813 square feet. To the extent that the Commission determines that the ground floor loading and parking area requires a waiver, the development team requests the waiver. 24
Given the infrequency of large deliveries for retail/commercial of this scale and residential, a dedicated loading dock is not typically needed or required by users. An important factor to consider is the presence of professional property management that is on site to facilitate loading and unloading of vehicles. Give the size of the retail/commercial space, the development team expects that any deliveries will be made by van or small truck and will be relatively quick. The frequency of deliveries will depend upon the use and in all such potential uses, a conventional loading dock is not required. There are several options where loading can occur within the building. The first area is immediately after the delivery vehicle pulls into the ground floor garage nearest the residential entry. The ceiling height in this area is 10 feet. The second area is further into the garage with a ceiling height of 9 feet.
Tree Removal Of the Design Standards and Guidelines, Section 8.3.6, healthy trees over 6” in caliper should be preserved. There are several trees at the front and the back of the property that meet or exceed the 6” caliper benchmark and these will need to be removed in order to construct the building, and the development team thereby requests a waiver. In their place the development team will work with the Town to improve and expand the street trees along Gould Street in front of the property which will be made possible through the expansion of the sidewalk. In addition, the project will have far more open and green space than currently exists on the property.
25
Proof of Site Control
FletcherTilton. Attorneys at law
The Guaranty Building 370 Main Street, 12th Floor Worcester, MA 01608-1779 August 4, 2017 TEL 508.459.8000 FAX 508.459.8300
The Meadows 161 Worcester Road, Suite 501 Julie D. Mercier, AlCP Framingham, MA 01701-5315 Community Development Director TEL 508.532.3500 FAX 508.532.3100 Town of Reading 16 Lowell Street Cape Cod Reading, MA 01867 1597 Falmouth Road, Suite 3 Centervilie, MA 02632-2955 TEL 508.815.2500 RE: 20 Gould Street, Reading, Massachusetts FAX 508.459.8300 Dear Ms. Mercier: FIetcherTiIton.com This correspondence will confirm that this office represents Clifford Rucker, Trustee of C&M Realty Trust under declaration of trust dated June 9, 2003 and recorded at the Middlesex South District Registry of Deeds in Book 23289, Page 468 (the "Trust"). The Trust is the owner of the property known in numbers 20- 24 Gould Street, Reading, Massachusetts.
Pursuant to that certain Purchase and Sale Agreement, the Trust is entered into an agreement with 24 Gould Street, LLC to purchase the property at 20-24 Gould Street, Reading, Massachusetts. Pursuant to the Purchase and Sale Agreement, 24 Gould Street, LLC has the authority to file with the Town of Reading any application required for the projected use of the property by 24 Gould Street, LLC.
If you need any further information or have any questions please do not hesitate to contact me.
Verw^uly yours.
Mark L. Donahue
MLD/mmp
Direct Line: (508) 459-8029 Direct Fax: (508) 459-8329 E-Mail: mdonah ue(^fletch ertilton.com Please direct all correspondence to our Worcester office.
Client Files/42834/0003/02483468.DOC 26
Existing Conditions Survey/Plot Map
27
Certified List of Abutters
28
Form of Affordable Housing Restriction Agreement The development team has spoken with the Department of Housing and Community Development on the restriction and at a minimum the development team will be using the 40R restriction as attached in form. If the project receives other state or federal subsidy, additional restrictions may be placed on the property, most likely in the form of the standard MassDOCs forms also attached.
These restrictions will require additional refinement and modification as the financing is completed.
AFFORDABLE HOUSING RESTRICTION AGREEMENT FOR 40R RENTAL PROJECT
CITY/TOWN OF [MUNICIPALITY]
This Affordable Housing Restriction Agreement (the "Agreement") is made this ___ day of _____ 2017 by and among [Developer] a ______[Massachusetts limited liability company] _, a Massachusetts limited liability company organized and existing in accordance with Massachusetts law, with an address of [#] _[street name]_ Street, _[Municipality]_, MA _[zip code] (the “Owner”) and its successors and assigns, the [City/ Town] of ______(“the Municipality"), with a mailing address at______, its successors and assigns, or its designee, exclusively for the purpose of ensuring retention of housing for occupancy by low income persons and families, and [Monitoring Agent] (the “Monitoring Agent”), , having an address at______, its successors and assigns, or its designee, exclusively for the purpose of ensuring retention of housing for occupancy by low income persons and families.
RECITATIONS:
WHEREAS, the Smart Growth Zoning District Program was established pursuant to G.L. c. 40R and regulations promulgated at 760 CMR 59.00 (the "Regulations"), which establish the affordability and related requirements for the Project and this Affordable Housing Restriction;
WHEREAS, the Department of Housing and Community Development (“DHCD”) is responsible for the administration, review, and reporting on the Smart Growth Zoning District Program pursuant to G.L. c. 40R, §12;
WHEREAS, the Municipality has adopted a smart growth zoning overlay district (the “Approved District”) in Section______of the Municipality’s Zoning [Ordinance Bylaw] (the “Bylaw”) which DHCD has approved pursuant to G.L. c. 40R, § 4;
WHEREAS, the Owner intends to construct a housing development known as [Name of Project] in the Municipality, more particularly described in Exhibit A attached hereto and made a part hereof (the “Project”);
WHEREAS, the Approved Project covers a ______acre site. The Project shall consist of a total number of __ rental units (the "Units") of which ____ will be rented at rents specified in this Agreement to persons or households with incomes at or below eighty percent (80%) of the regional median household income (the "Low and Moderate Income Units");
WHEREAS, the Owner has received a Plan Approval decision for the Project from the Municipality’s Approving Authority under G.L. c.40R, which decision is recorded / filed at the ______County Registry of Deeds / Registry District of the Land Court (the “Registry”) in Book ______, Page ______/ Document No.______on Certificate of Title
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No.______.
WHEREAS, pursuant to the requirements of the [Ordinance/Bylaw], the Municipality has appointed the Monitoring Agent to ensure compliance with the affordability requirements of the [Ordinance/Bylaw];
NOW, THEREFORE, in consideration of the agreements and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which each of the parties hereto hereby acknowledge to the other, the Municipality, the Owner, and the Monitoring Agent hereby agree and covenant as follows:
1. Purposes. The purpose of this Affordable Housing Restriction is to assure that the Affordable Units (hereinafter defined) within the Property will be retained [identify period of time, in accordance with the Ordinance/Bylaw, but not less than 30 years] as affordable rental housing for occupancy by low income families.
2. Scope. The Owner intends, declares and covenants, on behalf of itself and its successors and assigns, that the covenants and restrictions set forth in this Affordable Housing Restriction regulating and restricting the use and occupancy of the Affordable Units and the transfer of the Property (i) shall be and are covenants running with the Property, encumbering the Property and binding upon the Owner’s successors in title and all subsequent owners of the Property, (ii) are not merely personal covenants of the Owner, and (iii) shall bind the Owner and its successors and assigns (and the benefits shall inure to the Municipality, the Monitoring Agent and to any past, present or prospective tenant of the Property).
The Owner acknowledges that, pursuant to M.G.L. c. 40R (the “Massachusetts Act”) and 760 CMR 59.00 et seq. (the “Regulations”), the _[Municipality]_ has adopted the _[name of ordinance/bylaw]_ Smart Growth Zoning Overlay District (the “_[ordinance/bylaw abbreviation]_”), which requires that affordable housing restrictions be recorded with respect to any Affordable Units developed pursuant to the Massachusetts Act, the Regulations and the _[ordinance/bylaw abbreviation]_ and which authorizes the Municipality to allocate, administer, and determine eligibility for Affordable Housing developed pursuant to the Massachusetts Act. The Owner also acknowledges that it has applied to and received from the Municipality approval under the terms of the _[ordinance/bylaw abbreviation]_ for the development of the rental housing development located in _[Name of County]_ County, known as or to be known as [#] _[Street Name]_ Street (the “Project”), and that, as a condition of approval of the Project pursuant to the _[ordinance/bylaw abbreviation]_, the Owner must execute, deliver and record an affordable housing restriction under M.G.L. c.184 with the registry of deeds in the county where the property is located.
3. Duration Not Limited. This Affordable Housing Restriction is intended to be construed as an affordable housing restriction as defined in Section 31 of Chapter 184 of the Massachusetts General Laws which has the benefit of Section 32 of said Chapter 184, such that the restrictions contained herein shall not be limited in duration by any rule or operation of law. The Owner hereby agrees that any and all requirements of the laws of The Commonwealth of
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Massachusetts to be satisfied in order for this Affordable Housing Restriction to constitute deed restrictions and covenants running with the land shall be deemed to be satisfied in full and that any requirements of privity of estate are intended to be satisfied, or in the alternative, that an equitable servitude has been created to insure that this Affordable Housing Restriction runs with the land.
4. Term of the Restriction. This Affordable Housing Restriction shall be _____ ( ) [term of restriction un accordance with ordinance/bylaw but not less than 30 years] following completion of the Project, which shall in no event occur later than ______(___) months after the date hereof.
5. Subsequent Conveyances. Each and every contract, deed or other instrument hereafter executed conveying the Property or portion thereof shall expressly provide that such conveyance is subject to this Affordable Housing Restriction, provided, however, that the covenants contained herein shall survive and be effective regardless of whether such contract, deed or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Affordable Housing Restriction.
6. Permitted Use. The Property shall be primarily used for _[# of units]_ units of _[bldg.. type (e.g., multifamily)]_ rental housing (the “Housing Units”), consisting of [types of buildings] of which no fewer than _[number of affordable units]_ (_[# of affordable units]_) shall be deemed Affordable Housing under the [ordinance/bylaw abbreviation]_ (the “Affordable Units”). There shall be _[number of 1-bdrm aff. Units]_ (_[# of 1-bdrm aff. Units]_) one-bedroom Affordable Units,_[number of 2-bdrm aff. Units]_ (_[# of 2-bdrm aff. units]_) two-bedroom Affordable Units and _[number of 3-bdrm aff. units]_ (_[# of 3-bdrm aff. Units]_), all of which shall “float” and shall not be fixed, as detailed below; provided the Affordable Units remain equitably integrated and dispersed throughout the Project to a degree that is consistent with the initial unit assignments approved by DHCD, including by unit type and construction phase. Any Affordable Unit occupied by an Eligible Household at the commencement of occupancy shall be deemed an Affordable Unit, so long as (i) such unit continues to be rent-restricted, and (ii) the tenant’s income does not exceed 140% of the Maximum Income. If the tenant’s income exceeds 140% of the Maximum Income at the time of annual eligibility determination, at the expiration of the applicable lease term, the rent restrictions shall no longer apply to such tenant. The Owner shall not be in default hereunder so long as either (i) the tenant income does not exceed one hundred forty percent (140%) of the maximum income permitted or (ii) the Owner rents the next available unit in said Building with the same or greater number of bedrooms which is not an Affordable Unit. Such next available unit shall then be deemed to be an Affordable Unit and shall be rented to an Eligible Household pursuant to the terms hereof.
Owner shall not permit the use of any Housing Unit for any purpose other than rental housing and those uses which are permitted accessory uses under the _[ordinance/bylaw abbreviation]. Each Housing Unit shall contain complete facilities for living, sleeping, eating, cooking and sanitation which are to be used on other than a transient basis. Each Housing Unit shall meet the housing quality standards set forth in the regulations of United States Department of Housing and Urban Development (“HUD”) as 24 C.F.R. §982.401 or any successor thereto, and the accessibility requirements at 24 C.F.R. Part 8, or any successor thereto (which implement Section 504 of the Rehabilitation Act of 1973), 28 C.F.R. parts 35 and 36, as applicable, or any successor thereto (which implement the Americans with Disabilities Act, as amended), Chapter
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151B of the Massachusetts General Laws and the Massachusetts Architectural Access Board regulations at 521 CMR 1.00 et. seq., or any successor thereto, and, if applicable, the design and construction requirement of 24 C.F.R. §100.205 or any successor thereto (which implement the Fair Housing Act).
7. Tenant Selection.
(a) Nondiscrimination. The Owner, the Municipality and the Monitoring Agent shall not discriminate on the basis of race, religion, color, sex, sexual orientation, gender identity, familial status, age, handicap, marital status, national origin, genetic information, ancestry, children, receipt of public assistance, or any other basis prohibited by law in the lease, use and occupancy of the Housing Units or in connection with the employment or application for employment of persons for the operation and management of the Housing Units.
(b) Selection Policies. Prior to marketing or otherwise making available for rental any of the units in the Development, the Owner shall adopt and submit to DHCD for approval resident selection policies and criteria for Affordable Units (the “Tenant Selection Plan”) acceptable to DHCD that: (i) Provides for (a) the selection of residents of Affordable Units (initially and upon all subsequent rentals) from a written waiting list of Eligible Households in accordance with a tenant selection plan approved by the Massachusetts Department of Housing and Community Development (“DHCD”), as may be amended from time to time, and (b) the prompt written notification to any rejected applicant of the grounds for any rejection. (ii) Provides for an affirmative marketing plan. The affirmative marketing plan and selection policies and criteria shall comply with all applicable statutes, regulations, executive orders, and guidelines, including the DHCD Affirmative Fair Housing Marketing and Resident Selection Plan Guidelines, or any applicable successor guidelines or directives, as amended. The approved marketing plan and the approved resident selection policies and criteria for Affordable Units shall be adhered to in every respect. (iii) Provides that only Eligible Households shall reside in the Affordable Units, and notice of any lease or sublease of an Affordable Unit, including a lease or sublease in violation of that requirement must be given to the Monitoring Agent on an annual basis in the Annual Compliance Report as specified in section 12 hereof.
4. The Owner shall use its good faith efforts during the Term of this Agreement to maintain all the Affordable Units within the Development at full occupancy as set forth in Section 6 hereof. In marketing and renting the Affordable Units, the Owner shall comply with the Tenant Selection Plan and Affirmative Fair Housing Marketing Plan which are incorporated herein by reference with the same force and effect as if set out in this Agreement.
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5. Occupancy agreements for Affordable Units shall meet the requirements of this Agreement. The Owner shall enter into a lease with each tenant for a minimum term of one year. The lease shall contain clauses, among others, wherein each resident of such Affordable Unit:
(a) certifies the accuracy of the statements made in the application and income survey;
(b) agrees that the family income, family composition and other eligibility requirements, shall be deemed substantial and material obligations of his or her occupancy; that he or she will comply promptly with all requests for information with respect thereto from Owner, the Municipality, or the Monitoring Agent; and that his or her failure or refusal to comply with a request for information with respect thereto shall be deemed a violation of a substantial obligation of his or her occupancy; and
(c) agrees that at such time as Owner , the Municipality, or the Monitoring Agent may direct, but at least annually, he or she will furnish to Owner certification of then current family income, with such documentation as the Municipality or the Monitoring Agent shall reasonably require; and agrees to such charges as the Municipality or Monitoring Agent has previously approved for any facilities and/or services which may be furnished by Owner or others to such resident upon his or her request, in addition to the facilities included in the rentals, as amended from time to time pursuant to Section 3 above.
8. Income and Rent Restrictions.
For purposes of this Agreement, all of the following restrictions shall be read together in a consistent manner, so that the most restrictive of the restrictions shall apply for the longest period applicable.
(a) Additional Definitions.
(i) “Family” is defined as one or more individuals occupying a unit and satisfying the standards adopted by HUD pursuant to Section 8 of the U.S. Housing Act of 1937, or any successor program, and promulgated at 24 C.F.R. Part 982 (the “Section 8 Program”).
(ii) The “Area” is defined as the _[name of applicable HUD income limit region/MSA]_ Metropolitan Statistical Area.
(iii) A Family’s annual income shall be the anticipated total income from all sources received by the Family head and spouse (even if temporarily absent) and by each additional member of the Family (other than children under the age of 18 years), including all net income derived from assets for the 12- month period following the effective date of certification of income. Annual income specifically includes and excludes certain types of income
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as set forth in, and shall be determined in accordance with, 24 C.F.R. 5.609 (or any successor regulations).
(iv) “AMI” is defined as the median income for the Area, based on family size, as determined by HUD pursuant to the Section 8 program.
(v) An “Eligible Household” is defined as a Family whose annual income is less than 80% AMI.
(vi) “Monitoring Agent” means [name of Monitoring Agent].
(b) General Rent Restriction. The monthly rent charged to tenants of Affordable Units shall not exceed:
A monthly rent payment, including utilities and parking, shall not exceed thirty percent (30%) of the maximum monthly income permissible for an Eligible Household, assuming a family size equal to the number of bedrooms in the Unit plus one, unless other affordable program rent limits approved by DHCD shall apply (Maximum Monthly Rent). Maximum Monthly Rents and utility allowance shall be adjusted annually as provided herein.
9. Income Certifications. The Owner represents, warrants and covenants that the determination of whether a Family occupying an Affordable Unit meets the income requirements set forth herein shall be made by Owner at the time of leasing of a Housing Unit and thereafter at least annually on the basis of the current income of such Family. In initially verifying a Family’s income, the Owner shall examine the source documents evidencing annual income (e.g. wage statements, interest statements, unemployment compensation statements) for the Family. Owner shall maintain as part of its Project records copies of all leases of Affordable Units in the Project and all initial and annual income certifications by tenants of the Affordable Units, which shall be available for inspection by the Monitoring Agent, the Municipality and DHCD. Tenants shall also be required to provide such information as the Monitoring Agent may reasonably request in order to ensure affordability.
10. Rent Schedule. Projected initial monthly rents and allowances for utilities and services for all Affordable Units shall be as set forth in Exhibit B attached hereto. Annually, as part of the annual reports required under Section 12, Owner shall submit to Municipality a proposed schedule of monthly rents and monthly allowances for utilities and services for all Affordable Units. The rent schedule shall include the maximum rents applicable to Affordable Units under Section 8 above. Such schedule shall be subject to the approval of Municipality for compliance with the requirements of Section 8 above. Rents for Affordable Units shall not be increased above the amounts permitted under the _[ordinance/bylaw abbreviation]_ without the Municipality’s prior written approval of either (a) a specific request by Owner for a rent increase or (b) the next annual schedule of rents and allowances. Notwithstanding the foregoing, rent increases shall be subject to the provisions of outstanding leases and shall not be implemented without at least 30 days' prior written notice by Owner to all affected tenants. If an annual request
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for a new schedule of rents for the Affordable Units as set forth above is based on a change in the AMI figures published by HUD, and the Municipality fails to respond to such a submission within thirty (30) days of the Municipality’s receipt thereof, the Municipality shall be deemed to have approved the submission. If an annual request for a new schedule of rents for the Affordable Units is made for any other reason, and the Municipality fails to respond within thirty (30) days of the Municipality’s receipt thereof, the Owner may send the Municipality a notice of reminder, and if the Municipality fails to respond within thirty (30) days from receipt of such notice of reminder, the Municipality shall be deemed to have approved the submission for the remainder of the lease term.
Without limiting the foregoing, the Owner may request a rent increase for the Affordable Units to reflect an increase in the AMI published by HUD between the date of this Agreement and the date that the Units begin to be marketed or otherwise made available for rental; if the Municipality approves such rent increase, the Rental Schedule attached as Appendix ___ hereto shall be deemed to be modified accordingly.
9. Transfer Restrictions. Owner will not sell, transfer, lease, or exchange the Project or any portion thereof or interest therein (collectively a “Sale”) or except as permitted under Section (d) below) mortgage the Property without the prior written consent of DHCD, the Municipality and the Monitoring Agent.
(a) A request for consent to a Sale shall include: 1. A signed agreement stating that the transferee will assume in full the Owner’s obligations and duties under this Agreement, together with a certification by the attorney or title company that it will be held in escrow and, in the case of any transfer other than a transfer of Beneficial Interests, recorded in the Registry of Deeds with the deed and/or other recorded documents effecting the Sale; 2. The name of the proposed transferee and any other entity controlled by or controlling or under common control with the transferee, and names of any affordable housing developments in the Commonwealth owned by such entities; 3. A certification from the Municipality that the Project is in compliance with the affordability requirements of this Agreement. (b) Consent to the proposed Sale shall be deemed to be given unless DHCD, the Monitoring Agent or the Municipality notifies the Owner within thirty (days) after receipt of the request that either 1. The package requesting consent is incomplete, or 2. The proposed transferee (or any entity controlled by or controlling or under common control with the proposed transferee) has a documented history of serious or repeated failures to abide by agreements of affordable housing funding or regulatory agencies of the Commonwealth or the federal government or is currently in violation of any agreements with such agencies beyond the time permitted to cure the violation, or
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3. The Project is not being operated in compliance with the affordability requirements of this Agreement at the time of the proposed Sale. (c) The Owner shall provide DHCD, the Monitoring Agent and the Municipality with thirty (30) day’s prior written notice of the following: 1. any change, substitution or withdrawal of any general partner, manager, or agent of the Owner ; or 2. the conveyance, assignment, transfer, or relinquishment of a majority of the Beneficial Interests (herein defined) in the Owner (except for such a conveyance, assignment, transfer or relinquishment among holders of Beneficial Interests as of the date of this Agreement). 3. the sale, mortgage, conveyance, transfer, ground lease, or exchange of the Owner’s interest in the Project or any party of the Project.
For purposes hereof, the term “Beneficial Interest” shall mean: (i) with respect to a partnership, any partnership interests or other rights to receive income, losses, or a return on equity contributions made to such partnership; (ii) with respect to a limited liability company, any interests as a member of such company or other rights to receive income, losses, or a return on equity contributions made to such company; or (iii) with respect to a company or corporation, any interests as an officer, board member or stockholder of such company or corporation to receive income, losses, or a return on equity contributions made to such company or corporation.
(d) Notwithstanding the above, DHCD’s consent under this Section 9 shall not be required with respect to the grant by the Project Sponsor of any mortgage or other security interest in or with respect to the Project to a state or national bank, state or federal savings and loan association, cooperative bank, mortgage company, trust company, insurance company or other institutional lender made at no greater than the prevailing rate of interest or any exercise by any such mortgagee of any of its rights and remedies (including without limitation, by foreclosure or by taking title to the Project by deed in lieu of foreclosure), subject, however to the provisions of Section 14 hereof.
The Owner hereby agrees that it shall provide copies of any and all written notices received by the Owner from a mortgagee exercising or threatening to exercise its foreclosure rights under the mortgage.
12. Annual Compliance Report. The Owner agrees to prepare and deliver annually a report in a form specified by the Monitoring Agent (the “Annual Compliance Report”) both to the Monitoring Agent and the Municipality regarding the compliance of the Owner with reporting requirements within the provisions of the _[ordinance/bylaw abbreviation]_ and compliance of the Project with the Affordability Requirement. The Owner shall annually certify in writing to the Monitoring Agent that each of the Affordable Units continues to be an Affordable Unit as provided herein; and that the Development and the Affordable Units have been maintained in a manner consistent with this Agreement. The Annual Compliance Report shall indicate the extent of non- compliance with the relevant reporting and/or substantive requirements, if any, shall describe efforts being made by the Owner to remedy such non-compliance. The Owner shall deliver the Annual Compliance Report within one hundred twenty (120) days of the end of each calendar year
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during the term of this Addendum.
13. Enforcement. (a) _[name of Monitoring Agent]_ (the “Monitoring Agent”) with an address at _[street #]_ _[Street Name]_ Street, _[Municipality]_, MA _[Zip Code]_, its successors and permitted assigns, or its designee, shall have the power to monitor and enforce the requirements of the Massachusetts Act and the _[ordinance/bylaw abbreviation]_, as Monitoring Agent, and as such, shall monitor the compliance of the Project with the Affordability Requirement of the _[ordinance/bylaw abbreviation]_. The purpose of monitoring is to ensure that (both initially and on an ongoing basis) the income eligibility of the tenants are properly and reliably determined, rental amounts of Affordable Rental Units are properly computed, the Tenant Selection Plan conforms to all requirements and is properly administered and compliance with its terms continues, Eligible Households are properly chosen, and annual recertification of continued eligibility occurs in accordance with the guidelines set forth in the _[ordinance/bylaw abbreviation]_.
(b) Default. The Developer and the Municipality each covenant and agree to give the Monitoring Agent and DHCD written notice of any default, violation or breach of the obligations of the Developer or the Municipality hereunder (with a copy to the other parties to this Agreement) within seven (7) days of first discovering such default, violation or breach. If the Monitoring Agent becomes aware of a default, violation, or breach of obligations of the Developer or the Municipality hereunder without receiving a Default Notice from Developer or the Municipality, the Monitoring Agent shall give a notice of such default, breach or violation to the offending party (with a copy to the other party to this Agreement and to DHCD). If any such default, violation, or breach is not cured to the satisfaction of the Monitoring Agent within thirty (30) days after the giving of the default notice, then at the Monitoring Agent’s option, and without further notice to the parties, the Monitoring Agent may terminate this Agreement, or the Monitoring Agent may apply to any state or federal court for specific performance of this Agreement, or the Monitoring Agent may exercise any other remedy at law or in equity or take any other action as may be necessary or desirable to correct non-compliance with this Agreement.
14. Further Assurances. The Municipality and/or the Monitoring Agent is authorized to record and/or register any notices or instruments appropriate to assuring the enforceability of this Affordable Housing Restriction Agreement; and the Owner on behalf of itself and its successors and assigns appoints the Municipality and/or the Monitoring Agent its attorney-in-fact to execute, acknowledge and deliver any such instruments on its behalf. Without limiting the foregoing, the Owner and its successors and assigns agree to execute any such instruments upon request. The benefits of this Affordable Housing Restriction Agreement shall be in gross and shall be assignable by the Municipality. The Owner and the Municipality intend that the restrictions arising hereunder take effect upon the date hereof, and to the extent enforceability by any person ever depends upon the approval of governmental officials, such approval when given shall relate back to the date hereof regardless of the date of actual approval or the date of recording and/or registering of any instrument evidencing such approval.
The restrictions contained herein are intended to be construed as an affordable housing restriction as defined in Section 31 of Chapter 184 of Massachusetts General Laws which has the benefit of Section 32 of said Chapter 184, such that the restrictions contained herein shall not be limited in duration by any rule or operation of law but rather shall run for the Term hereof. In
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addition, this Agreement is intended to be superior to the lien of any mortgage on the Development and survive any foreclosure or exercise of any remedies thereunder and the Owner agrees to obtain any prior lienholder consent with respect thereto as DHCD shall require.
15. Foreclosure. Notwithstanding anything herein to the contrary, the terms and restrictions herein contained shall not be terminated in the event of foreclosure of the Project. It is therefore the intention of the parties that the restrictions on affordability contained herein shall survive such foreclosure or a deed in lieu of a foreclosure.
16. Notices. Any notice, request or other communication which either party hereto may be required or may desire to give hereunder shall be made in writing, and shall be deemed to have been properly given if hand delivered, if sent by recognized overnight courier, receipt confirmed, or if mailed by United States registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to Owner:
_[Name of Owner]_ _[Street Address]_ _[Municipality]_, Massachusetts _[Zip Code]_
If to the Municipality:
CITY/TOWN OF _[Municipality]_ _[Street Address]_ _[Municipality]_, Massachusetts _[Zip Code]_
If to DHCD:
Department of Housing and Community Development Attention: Smart Growth Zoning Program Coordinator Division of Community Services 100 Cambridge St., Suite 300 Boston, MA 02114
or such other address as the party to be served with notice may have furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice. A notice sent by certified or registered mail shall be deemed given three days after mailing; a notice sent by overnight courier shall be deemed given one day after deposit with such courier; and a notice delivered by hand shall be deemed given upon receipt.
17. Amendment. This Affordable Housing Restriction Agreement may not be amended, nor may any obligation hereunder be waived or released, without first obtaining the
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written consent of the Municipality, the Monitoring Agent and DHCD. Notwithstanding the foregoing, or anything else contained herein to the contrary, if at any time Owner converts the subject Housing Units from apartment rentals, to condominium units to be offered for sale, provided Owner first obtains all required approvals from the Town, and DHCD, it is agreed that this Agreement shall be replaced by a revised Affordable Housing Restriction Agreement, approved by DHCD, suitable for use for condominium units being offered for sale.
18. Governing Law. This Agreement shall be governed by the laws of The Commonwealth of Massachusetts.
No documentary stamps are required as this Affordable Housing Restriction Agreement is not being purchased by the Municipality.
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Executed under seal this _____ day of ______, 20[XX]
_[Owner]_ By: _[Applicable Affiliate]_, its _[Title]_
By:______[Owner/Affiliate Representative]_, _[Title]_
COMMONWEALTH OF MASSACHUSETTS
______County, ss.
On this ____ day of ______, 20[XX], before me, the undersigned notary public, personally appeared ______, the ______of _[Applicable Owner Affiliate]_, LLC, proved to me through satisfactory evidence of identification, which was [a current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be his free act and deed on behalf of [Owner].
EXHIBIT A - Property Description EXHIBIT B - Initial Rent Schedule _[Owner]_, proved to me through satisfactory evidence of identification, which was [a current driver’s license] [a current U.S. passport] [my personal knowledge], to be the person whose name is signed on the preceding instrument and acknowledged the foregoing instrument to be her/his free act and deed and the free act and deed of _[Owner]_.
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EXHIBIT A Property Description
Parcel [X] :
_[Parcel Description]_...
Parcel(s) _[applicable parcel #(s)]_ is/are shown on a plan entitled “PLAN OF LAND IN _[Muncipality]_, MASSACHUSETTS, OWNED BY _[APPLICABLE OWNER]_.; _[APPLICABLE DATE]_; 1 IN. = 30 FT.; _[APPLICABLE SURVEYOR]_, REGISTERED LAND SURVEYOR” recorded with _[Applicable Registry Name]_ District Registry of Deeds (“Registry”) as Plan No. _[Plan #]_ of _[Year]_.
883380v5 13
EXHIBIT B
Projected Initial Rent Schedule
Description of Units Contract rent Utility/Parking Allowance No. of Units
Studio $_[X,XXX]_ $_[XX]_ {# of Studio aff.] bedroom units $_[X,XXX]_ $_[XX]_ _[# of 1-BR aff.]_ 2 bedroom units $_[X,XXX]_ $_[XX]_ _[# of 2-BR aff.]_ 3 bedroom units $_[X,XXX]_ $_[XX]_ _[# of 3-BR aff.]_
Certificate of Approval Affordable Housing Restriction G.L. c. 184, § 32
The undersigned Undersecretary of the Massachusetts Department of Housing and Community Development hereby certifies that the Affordable Housing Restriction made and declared by Amesbury Heights LLC and recorded with the Essex South Registry of Deeds in Book , Page , with respect to land in the City of Amesbury described in deed to recorded with the Essex South Registry of Deeds in Book , Page , is hereby declared to be in the public interest and is approved pursuant to the provisions of Massachusetts General Laws Chapter 184, Section 32 to ensure that such Affordable Housing Restriction fulfills requirements therein associated with M.G.L., Chapter 40R, its corresponding regulations (760 CMR 59.00 et seq.), and the Comprehensive Permit Guidelines, M.G.L., Chapter 40B Comprehensive Permit Projects – Subsidized Housing Inventory.
COMMONWEALTH OF MASSACHUSETTS
By: ______
Chrystal Kornegay
Undersecretary
Department of Housing and Community Development
Date: ______
Commonwealth of Massachusetts
Signature page to Affordable Housing Restriction Agreement
AFFORDABLE HOUSING RESTRICTION
DATE: As of ______, 2015 GRANTOR: ______PROPERTY NAME: ______TOTAL NUMBER OF UNITS: 48 TOTAL NUMBER OF RESTRICTED UNITS: XX
NUMBER OF HIGH MODERATE INCOME UNITS (110% AMI):1 XX NUMBER OF MODERATE INCOME UNITS (80% AMI): XX NUMBER OF LOW INCOME UNITS (60% AMI): XX NUMBER OF VERY LOW INCOME UNITS (50% AMI): XX NUMBER OF EXTREMELY LOW INCOME UNITS (30% AMI): XX NUMBER OF HOME ASSISTED UNITS: XX NUMBER OF 40R UNITS: 12 PROPERTY ADDRESS: ______, ______, Massachusetts
TERM: __ years (subject to extension for any extension of the construction period and/or extension of one or more of the Loans to which this Restriction relates, as set forth below)
This Affordable Housing Restriction (this "Restriction") is granted by the undersigned Grantor, a Massachusetts corporation having a mailing address of ______, for the benefit of The Commonwealth of Massachusetts acting by and through the Department of Housing and Community Development having a mailing address of 100 Cambridge Street, Suite 300, Boston, Massachusetts 02114-2524 ("DHCD") and The Commonwealth of Massachusetts, acting by and through the Department of Housing and Community Development under the Affordable Housing Trust Fund
1 Numbers in parentheses are the percentage of median income for the Area (AMI, as defined below), adjusted for family size, as determined from time to time by HUD (as defined below) pursuant to Section 8 of the United States Housing Act, as amended. © 2006 Massachusetts Housing Partnership 1
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Statute, M.G.L. c. 121D, by the Massachusetts Housing Finance Agency ("MHFA"), as Administrator, having an address at One Beacon Street, Boston, Massachusetts 02108 ("AHT"). It is also the intention of the parties that this Restriction will conform to the requirements of the ______Smart Growth Overlay District, established under M.G.L. c. 40R and the regulations and guidelines promulgated pursuant to said Chapter 40R.
In addition, the Monitoring Agent shall have the power and authority to monitor and enforce this Restriction in accordance with M.G.L. c. 40R (the “40R Requirements”).
BACKGROUND
A. The Grantor holds a fee simple interest in the Property and intends to construct a 66-unit rental housing development, consisting of two residential buildings, at the Property (the "Project").
B. As a condition of the Loan, the Grantor has agreed that this Restriction be imposed upon the Property as a covenant running with the Grantor’s fee simple interest in the property and binding upon any successor to the Grantor.
RESTRICTIONS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor hereby covenants as follows:
1. Definitions. Capitalized terms used herein are defined herein and in Exhibit D attached hereto.
2. Use Restrictions. The Property shall be reserved and used for the Permitted Uses and for no other purpose. The Restricted Units shall include at least 10 one-bedroom Units, 45 two- bedroom Units and 5 three-bedroom Units. Each Unit shall contain complete facilities for living, sleeping, eating, cooking and sanitation which are to be used on other than a transient basis. Each Unit shall meet the housing quality standards set forth in the regulations of HUD at 24 C.F.R. §982.401 or any successor thereto, the accessibility requirements at 24 C.F.R. Part 8 or any successor thereto (which implement Section 504 of the Rehabilitation Act of 1973) and, if applicable, the design and construction requirements of 24 C.F.R. §100.205 or any successor thereto (which implement the Fair Housing Act). The Restricted Units shall be of comparable quality to the other Units at the Property. The Restricted Units shall be dispersed evenly throughout the buildings comprising the Improvements. Throughout the term hereof, the Grantor shall maintain the Property and the Improvements in good, safe and habitable condition in all respects and in full compliance with all applicable laws, by-laws, rules and regulations of any governmental (or quasi-governmental) body with jurisdiction over matters concerning the condition of the Property.
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3. Occupancy Restrictions. The following restrictions shall apply during the period commencing with the first date on which any Units are occupied and continuing for the balance of the term of this Restriction.
A. Low Income Units. At least 50 of the Units of the types shown on Exhibit C attached hereto shall be leased exclusively to Low Income Families ("Low Income Units"). The monthly rent charged to a Family occupying a Low Income Unit shall not exceed the lesser of Fair Market Rent or an amount equal to (x) one-twelfth of thirty percent (30%) of sixty percent (60%) of the Bedroom Adjusted AMI, minus (y) if applicable, an allowance established by the Holders for any utilities and services (excluding telephone) to be paid by the occupying Family. A Family who resides in a Restricted Unit, who qualified as a Low Income Family at the time of such Family's initial occupancy at the Property and whose Household Income exceeds sixty percent (60%), but does not exceed eighty percent (80%) of the Family-size Adjusted AMI, shall continue to be treated as a Low Income Family and the foregoing maximum rent shall continue to apply to such Family. A Family who resides in a Restricted Unit, who qualified as a Low Income Family at the time of such Family's initial occupancy at the Property and whose Household Income exceeds eighty percent (80%) of the Family-size Adjusted AMI, shall, from and after the expiration of the then-current term of such Family's lease, no longer be treated as an income- qualified Family and (i) until such time as the Property again has the required number of income-qualified Families at all income levels hereunder must pay as monthly rent the Over-income Rent and (ii) once the Property again has the required number of income- qualified Families at all income levels hereunder, such Family's Unit shall, from and after the expiration of the then-current term of such Family's lease, no longer be deemed a Restricted Unit hereunder.
B. Very Low Income Units. At least 3 of the Units of the types shown on Exhibit C attached hereto shall be leased exclusively to Very Low Income Families ("Very Low Income Units"). The monthly rent charged to a Family occupying a Very Low Income Unit shall not exceed the lesser of Fair Market Rent or (x) one-twelfth of thirty percent (30%) of fifty percent (50%) of the Bedroom Adjusted AMI, minus (y) if applicable, an allowance established by the Holders for any utilities and services (excluding telephone) to be paid by the occupying Family. A Family who resides in a Restricted Unit, who qualified as a Very Low Income Family at the time of such Family's initial occupancy at the Property and whose Household Income exceeds fifty percent (50%), but does not exceed eighty percent (80%), of the Family-size Adjusted AMI, shall, from and after the expiration of the then-current term of such Family's lease, be treated as a Low Income Family, and must pay as monthly rent the lesser of (x) the maximum amount payable by the Family under the laws of the municipality in which the Property is located or of The Commonwealth of Massachusetts, (y) one-twelfth of thirty percent (30%) of sixty percent (60%) of the Bedroom Adjusted AMI (minus, if applicable, an allowance established by the Holders for any utilities and services [excluding telephone] to be paid by the occupying Family) or (z) the comparable market rent for the Family’s Unit. A Family who resides in a Restricted Unit, who qualified as a Very Low Income Family at the time of such Family's initial occupancy at the Property
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and whose Household Income exceeds eighty percent (80%) of the Family-size Adjusted AMI, shall, from and after the expiration of the then-current term of such Family's lease, no longer be treated as an income-qualified Family and (i) until such time as the Property again has the required number of income-qualified Families at all income levels hereunder must pay as monthly rent the Over-income Rent and (ii) once the Property again has the required number of income-qualified Families at all income levels hereunder, such Family's Unit shall, from and after the expiration of the then-current term of such Family's lease, no longer be deemed a Restricted Unit hereunder.
C. Extremely Low Income Units. At least 7 of the Units of the types shown on Exhibit C attached hereto shall be leased exclusively to Extremely Low Income Families ("Extremely Low Income Units"). The monthly rent charged to a Family occupying an Extremely Low Income Unit shall not exceed the lesser of Fair Market Rent or (x) one-twelfth of thirty percent (30%) of thirty percent (30%) of the Bedroom Adjusted AMI, minus (y) if applicable, an allowance established by the Holders for any utilities and services (excluding telephone) to be paid by the occupying Family. A Family who resides in a Restricted Unit, who qualified as an Extremely Low Income Family at the time of such Family's initial occupancy at the Property and whose Household Income exceeds thirty percent (30%), but does not exceed fifty percent (50%) of the Family-size Adjusted AMI, shall continue to be treated as an Extremely Low Income Family but, from and after the expiration of the then-current term of such Family's lease, must pay as monthly rent the Over-income Rent. A Family who resides in a Restricted Unit, who qualified as an Extremely Low Income Family at the time of such Family's initial occupancy at the Property and whose Household Income exceeds fifty percent (50%), but does not exceed eighty percent (80%), of the Family-size Adjusted AMI, shall, from and after the expiration of the then-current term of such Family's lease, be treated as a Low Income Family and must pay as monthly rent the lesser of (x) the maximum amount payable by the Family under the laws of the municipality in which the Property is located or of The Commonwealth of Massachusetts, (y) one-twelfth of thirty percent (30%) of sixty percent (60%) of the Bedroom Adjusted AMI (minus, if applicable, an allowance established by the Holders for any utilities and services [excluding telephone] to be paid by the occupying Family) or (z) the comparable market rent for the Family’s Unit. A Family who resides in a Restricted Unit, who qualified as an Extremely Low Income Family at the time of such Family's initial occupancy at the Property and whose Household Income exceeds eighty percent (80%) of the Family-size Adjusted AMI, shall, from and after the expiration of the then-current term of such Family's lease, no longer be treated as an income-qualified Family and must pay as monthly rent the Over-income Rent.
D. Applicable Lease Term, Change of Status. References in the foregoing provisions of the "then-current term of such Family's lease" shall refer to the term of the lease or occupancy agreement in effect on the date of the required delivery of the income certification that reflects (or that, if duly delivered, would have reflected) the applicable increase in such Family's income or, as applicable, the term of the lease or occupancy agreement in effect at the time the Property regains the required number of income-
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qualified Families. If, with the Holders' consent, the Grantor does not require that a lease be signed for a Restricted Unit (e.g., a property providing short-term transitional housing), the provisions set forth above shall apply, except that the applicable date on which a Family's income-qualified status and/or applicable rent restriction is modified shall be the first day of the month that is at least thirty (30) days following the date of the required delivery of the income certification that reflects (or that, if duly delivered, would have reflected) the applicable increase in such Family's income and the applicable date on which a Restricted Unit's status is modified shall be the first day of the month that is at least thirty (30) days following the date on which the Property regains the required number of income-qualified Families.
E. Federal or State Rental Subsidy. Except with respect to HOME Assisted Units, if a Restricted Unit or the Family occupying such Unit receives federal or state rental subsidy, then the Family's contribution towards rent shall be the contribution allowable under the federal or state rental subsidy program and the maximum rent (i.e., tenant contribution plus rental subsidy) shall be the rent allowable under the federal or state rental subsidy program. In the case of HOME Assisted Units, if a Restricted Unit receives federal or state project-based rental subsidy and the occupying Family qualifies as a Very Low Income Family and pays as a contribution towards rent not more than thirty percent (30%) of one-twelfth of the Family's Household Income, then the maximum rent (i.e., tenant contribution plus rental subsidy) shall be the rent allowable under the federal or state rental subsidy program.
F. Next Available Unit Rule. If at any time fewer than the required number of Units are leased, rented or occupied by Very Low Income Families, the next available Units shall all be leased, rented or otherwise made available to Very Low Income Families until the required number of Units occupied by Very Low Income Families is again obtained. Subject to the foregoing, if at any time fewer than the required number of Units are leased, rented or occupied by Low Income Families, the next available Units shall all be leased, rented or otherwise made available to Low Income Families until the required number of Units occupied by Low Income Families is again obtained. Subject to the foregoing, if at any time fewer than the required number of Units are leased, rented or occupied by Extremely Low Income Families, the next available Units shall all be leased, rented or otherwise made available to Extremely Low Income Families until the required number of Units occupied by Extremely Low Income Families is again obtained. The foregoing provisions shall be applied so as to maintain a mix of Restricted Units that is comparable in size, features and number of bedrooms to the originally designated Restricted Units (i.e., a Unit will not be considered an available Unit for purposes of this Paragraph if classification of such Unit as a Restricted Unit would cause the then current mix of Restricted Units to no longer be comparable to the original mix of Restricted Units described in Section 2 above and as shown on Exhibit C).
G. 40R Units. The [Low Income] and [Extremely Low Income] Units specified above shall be maintained by the Grantor in satisfaction of the 40R Requirements.
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4. Rent Schedule. Projected initial monthly maximum rents and monthly allowances for utilities and services for all Restricted Units shall be as set forth in Exhibit B attached hereto. Notwithstanding the rent restrictions set forth in Section 3 above, the maximum monthly rent permitted to be charged for a Restricted Unit at any particular income level is not required to be lower than the maximum rent applicable at such income level pursuant to Exhibit B, regardless of changes in fair market rents or in median income over time (subject only to the restrictions applicable in the event of any federal or state subsidy, as set forth in Section 3 above). Rents for Restricted Units shall not be increased above applicable maximums without all Holders’ prior written approval of a specific request by the Grantor for a rent increase, except for increases implemented in accordance with an annual schedule of maximum rents and allowances issued by DHCD. Notwithstanding the foregoing, rent increases shall be subject to the provisions of outstanding leases and shall not be implemented without at least thirty (30) days' prior written notice by the Grantor to all affected Residents and notwithstanding any provision in a lease or occupancy agreement to the contrary, in the event of any increase in the rent payable by such Residents in connection with an increase in the income of such Residents, consistent with the terms hereof, the Residents shall have the right to terminate their lease or occupancy agreement by written notice to the Grantor delivered within such thirty-day period.
5. Resident Selection.
A. Nondiscrimination. The Grantor shall not discriminate on the basis of race, creed, color, sex, age, handicap, marital status, sexual preference, national origin or any other basis prohibited by law in the lease, use and occupancy of the Units or in connection with the employment or application for employment of persons for the operation and management of the Units. The Grantor shall not discriminate against, or refuse to lease, rent or otherwise make available the Units to, a holder of a certificate or voucher under the Federal Rental Certificate Program or the Federal Rental Voucher Program or a holder of a comparable document evidencing participation in a HOME Program tenant-based assistance program because of the status of the prospective tenant as a holder of such certificate, voucher or comparable HOME Program tenant-based assistance document.
B. Selection Policies. The Grantor shall adopt and submit to the Holders and the Monitoring Agent for approval resident selection policies and criteria for the Restricted Units that:
(i) Are consistent with the purpose of providing housing for a Low Income Family, a Very Low Income Family, or an Extremely Low Income Family as defined below and required herein;
(ii) Are reasonably related to eligibility of prospective tenants under the Programs and to the prospective tenants' ability to perform the obligations of the Grantor's form lease;
(iii) Give reasonable consideration to the housing needs of Families that would have preference under Section 6(c)(4)(A) of the United States Housing Act of 1937 (42 U.S.C. §1437 et seq.);
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(iv) Provide for (x) the selection of Residents from a written waiting list in the chronological order of their application, insofar as practicable, and (y) the prompt written notification to any rejected applicant of the grounds for any rejection; and
(v) Designate the household size appropriate for a Restricted Unit with respect to bedroom size, which designation shall not at any time be more restrictive (i.e. require a smaller household size) than the Tenant Selection Plan approved by the Holders as of the date hereof so long as such Tenant Selection Plan is in compliance with the State Sanitary Code, and provide that the preference for such Unit shall be given to a household of the appropriate size.
The Grantor shall also provide the Holders with an affirmative marketing plan acceptable to all Holders. The affirmative marketing plan must comply with all applicable statutes, regulations and executive orders, with all Holders’ affirmative marketing requirements and with DHCD’s directives reflecting the agreement between DHCD and HUD in the case of NAACP, Boston Chapter v. Kemp. The approved marketing plan and the approved resident selection policies and criteria shall be adhered to in every respect and any changes thereto shall be subject to the prior written approval of the Holders. The Grantor shall list vacancies in Restricted Units in the MassAccess Housing Registry at http://www.massaccesshousingregistry.org.
6. Lease Form. The Grantor shall not include in any lease for a Restricted Unit any of the following provisions:
A. Agreement by the tenant to be sued, to admit guilt or to a judgment in favor of the Grantor in a lawsuit brought in connection with the lease.
B. Agreement by the tenant that the Grantor may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the Unit after the tenant has moved out of the Unit. The Grantor may dispose of such personal property in accordance with state law.
C. Agreement by the tenant not to hold the Grantor or the Grantor's agents legally responsible for any action or failure to act, whether intentional or negligent.
D. Agreement of the tenant that the Grantor may institute a lawsuit without notice to the tenant.
E. Agreement by the tenant that the Grantor may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties.
F. Agreement by the tenant to waive any right to a trial by jury.
G. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease.
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H. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the Grantor against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses.
All leases for Restricted Units shall be consistent with the requirements set forth herein, shall be on a form reasonably approved by the Holders and the Monitoring Agent, shall be for terms of not less than one (1) year (unless a shorter term is specified by mutual agreement between the Resident and the Grantor, subject to the Holders' program requirements) and shall require tenants to provide information required for the Grantor to meet its reporting requirements hereunder and such information as the Monitoring Agent may reasonably request in order to ensure affordability. The Grantor may not terminate the tenancy or refuse to renew the lease of an occupant of a Restricted Unit except (i) for serious or repeated violation of the terms and conditions of the lease; (ii) for violations of applicable federal, state or local law; (iii) for completion of the tenancy period for transitional housing; or (iv) for other good cause. Any termination or refusal to renew must be preceded by not less than thirty (30) days by the Grantor's service on the tenant of a written notice specifying the grounds for the action. Grantor shall provide the Monitoring Agent with notice of any lease of a Restricted Unit and shall provide such other information as the Monitoring Agent may from time to time reasonably request to demonstrate compliance with the provisions of this Section.
7. Transfer Restrictions. The Grantor shall not sell, transfer, convey, rent (except for leases or occupancy agreements made in connection with the Permitted Uses that are substantially in the form approved by the Holders), encumber as security for financing, or in any other way exchange all or any portion of the Property (except for a conversion of the Property to a condominium in accordance with the Lease Converting to Condominium between Grantor and ______Limited Partnership, signed of even date herewith and held in escrow until completion of the Project, and except for the mortgages given by Grantor to the Massachusetts Housing Financing Agency, as senior permanent lender, as further described in Exhibit B of the mortgage given by Grantor to DHCD, executed of even date herewith and recorded on or near the same date at the Registry of Deeds) nor shall the Grantor permit the sale, transfer or pledge of any direct or indirect interests in the Grantor, without the express written permission of the Holders. Without limiting the generality of the foregoing, the Permitted Encumbrances are hereby approved by the Holders.
8. Term of Restrictions; Covenants to Run with Land. The term of this Restriction shall commence on the date hereof and shall end 31 years from the date hereof, provided that if the Project is not completed within 12 months after the date of this Restriction for any reason, any Holder shall have the right to extend the term hereof by recording in the Registry of Deeds a certificate of extension certifying the length of the delay in completing the Project, whereupon the term hereof shall automatically be extended by an amount of time equal to the length of such delay and provided further that the term hereof shall automatically be extended for the period of the extension of any of the Loans to which this Restriction relates. Notwithstanding any provision to the contrary herein or in any of the other Loan Documents, this Restriction shall remain in full force for the full term set forth herein including any extension, notwithstanding any prepayment of the Loan. The restrictions contained herein shall run with the Grantor’s fee simple interest, © 2006 Massachusetts Housing Partnership 8
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AFFORDABLE HOUSING RESTRICTION shall bind the successors and assigns of the Grantor, and shall inure to the benefit of the Holders and of the Monitoring Agent and their successors and assigns as permitted herein. Notwithstanding the foregoing, upon satisfaction in full at the originally stated maturity date, as it may have been extended, of all obligations under a particular Loan, as determined by the appropriate Holder, the Grantor may request that the Holders modify this Restriction to eliminate the requirements imposed by or otherwise relating to such Loan set forth in this Restriction. The parties shall cooperate to prepare an appropriate amendment to this Restriction, which amendment shall be duly recorded with the Registry of Deeds by the Grantor at its cost and expense.
9. Subsequent Conveyances. Each and every contract, deed or other instrument hereafter executed conveying the Property or portion thereof shall expressly provide that such conveyance is subject to this Restriction, provided, however, that the covenants contained herein shall survive and be effective regardless of whether such contract, deed or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Restriction.
10. Income Verification. The Grantor represents, warrants and covenants that the determination of whether a Family occupying a Restricted Unit meets the income requirements set forth herein shall be made by the Grantor at the time of leasing of a Restricted Unit and thereafter at least annually on the basis of the current income of such Family. In initially verifying a Family's income, the Grantor shall examine the source documents evidencing annual income (e.g., wage statements, interest statements, unemployment compensation statements) for the Family.
11. Reporting Requirements.
A. Annual Report. Annually, no later than September 30, Grantor shall submit to DHCD, via the web-based annual reporting system located at https://app2.ocd.state.ma.us/hsgdevannualreport, or as otherwise instructed, and to the Monitoring Agent, via such means as the Monitoring Agent shall provide or otherwise require, an annual report consisting of the following in a form approved by DHCD and containing such supporting documentation as DHCD shall reasonably require:
(i) Annual adjusted income of each Family occupying a Restricted Unit.
(ii) Monthly gross rents (rents plus utility allowances, if applicable) for all Restricted Units, such rents to be consistent with the schedule of maximum rents published annually by DHCD. The rent schedule shall include the maximum rents applicable to Restricted Units under Section 3 as well as the actual rents to be charged to over-income Families under Section 3.
(iii) Data required by DHCD regulations at 760 CMR 61.00 promulgated pursuant to Chapter 334 of the Acts of 2006 and all applicable DHCD directives, guidelines and forms as may be amended from time to time. The Grantor shall collect said data for the express purpose of reporting to DHCD, and the collection and reporting of said data shall comply with said regulations, directives, guidelines and forms.
(iv) Rental assistance data on all existing Residents of Restricted Units. © 2006 Massachusetts Housing Partnership 9
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(v) The Grantor’s certification, made to the best knowledge and belief of the officer or individual signing such certification, that:
(a) The Property continues to be used for the Permitted Uses.
(b) The Property continues to contain the required number of Extremely Low Income Units, Low Income Units and Very Low Income Units and to comply with the rent and other restrictions applicable to such Restricted Units.
(c) Grantor has not transferred, pledged or encumbered any interest in the Property, except as specifically provided in, and in accordance and compliance with the terms of, this Restriction.
(d) Grantor has caused the Property to be maintained in a manner consistent with the Statutes, Regulations and Guidelines and no children under six years old reside in or occupy the Property within the meaning of the Lead Paint Law or, if such children do reside in or occupy the Property, that the Property is in compliance with the Lead Paint Law.
(e) The information submitted pursuant to this Paragraph A. is true and accurate
B. Confidentiality. The Holders, the Monitoring Agent and the Grantor shall treat as confidential any of the foregoing information relating to a specific Resident or Unit in compliance with all applicable state and federal statutes and regulations, including M.G.L. c. 66A, and shall implement adequate systems and procedures for maintaining the confidentiality of such information (but the Holders, the Monitoring Agent and the Grantor may release general statistical and other information about the Property, so long as the privacy rights and interests of the individual Residents are protected). The Holders, the Monitoring Agent and the Grantor shall not use any of the foregoing information in Paragraph A.(iii) for any purpose described in Section 603(d)(1) of the federal Fair Credit Reporting Act (15 U.S.C. § 1681a(d)(1)) or in any manner that would cause a Holder or Grantor to be considered a "consumer reporting agency" under Section 603(f) of the federal Fair Credit Reporting Act (15 U.S.C. § 1681a(f)).
C. Additional Reports. Grantor shall prepare and submit to the Holders and to the Monitoring Agent such additional reports as any Holder and/or the Monitoring Agent may deem necessary to ensure compliance with the requirements of this Restriction and of the Programs.
D. Records. The Grantor shall maintain as part of its records (i) copies of all leases of Restricted Units; (ii) all initial and annual income certifications by Residents of Restricted Units and (iii) such additional records as any Holder or the Monitoring Agent may deem necessary to ensure compliance with the requirements of this Restriction and of the Programs.
E. Additional Reporting Requirements. Additional reporting requirements are stipulated in the Loan Agreement.
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12. No Demolition. The Grantor shall not demolish any part of the Improvements or substantially subtract from any real or personal property included within the Property except in conjunction with renovation or rehabilitation of the Units or construction of a new project on the Property, in either case subject to the prior written consent of all Holders, which consent may be granted or withheld in a Holder’s sole judgment.
13. Casualty. The Grantor represents, warrants and agrees that if the Property, or any part thereof, shall be damaged or destroyed, the Grantor (subject to the approval of the lender(s) providing financing) will use its best efforts to repair and restore the Units to substantially the same condition as existed prior to the event causing such damage or destruction, and the Grantor represents, warrants and agrees that the Units shall thereafter continue to operate in accordance with the terms of this Restriction.
14. Inspection. The Grantor hereby grants to each Holder and to the Monitoring Agent and their duly authorized representatives the right to enter the Property (a) at reasonable times and in a reasonable manner for the purpose of inspecting the Property to determine compliance with this Restriction or any other agreement between the Grantor and such Holder and (b) after thirty (30) days’ prior written notice, to take any reasonable and appropriate action under the circumstances to cure any violation of the provisions of this Restriction. The notice referred to in clause (b) shall include a clear description of the course and approximate cost of the proposed cure.
15. Enforcement. Upon violation by the Grantor of any of the provisions of this Restriction that remains uncured for more than thirty (30) days after notice thereof from any Holder or from the Monitoring Agent (or for such longer period not to exceed thirty (30) days as shall be reasonably required under the circumstances to cure such violation, provided that the Grantor has commenced the cure of such violation within the initial thirty (30) day period and is thereafter diligently pursuing the cure to completion), any Holder or the Monitoring Agent, at its option (without liability to any party for failure to do so), may apply to any court, state or federal, for specific performance of this Restriction or an injunction against any violation of this Restriction, o r for such other relief as may be appropriate, since the injury arising from the default under any of the terms of this Restriction would be irreparable and the amount of damage would be difficult to ascertain and may not be compensable by money alone. In each such default notice, the Holder or the Monitoring Agent giving such notice shall specify the violation in question and the actions such Holder believes are necessary and feasible to remedy such violation. No waiver by a Holder or by the Monitoring Agent of any breach of this Restriction shall be deemed a waiver of such breach by any other Holder or a waiver of any other or subsequent breach. No act or omission by any Holder or by the Monitoring Agent, other than a writing signed by it waiving a breach by the Grantor in accordance with the next Section hereof, shall constitute a waiver thereof. Any Holder or the Monitoring Agent shall be entitled to recover from the Grantor all of such Holder's or Monitoring Agent’s reasonable costs of an action for enforcement of this Restriction, including reasonable attorneys’ fees (including the time of any in-house counsel of a Holder or of the Monitoring Agent charged at the same rate as comparable outside attorneys). By its acceptance of this Restriction, neither the Monitoring Agent nor any Holder undertakes any liability or
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AFFORDABLE HOUSING RESTRICTION obligation relating to the condition of the Property. Without limiting any other rights or remedies available to a Holder or to the Monitoring Agent, any transfer of all or any other portion of the Property in violation of the provisions hereof, in the absence of a certification from all Holders and the Monitoring Agent approving, or waiving any restrictions with respect to, the same, all as set forth above, shall, to the maximum extent permitted by law, be voidable by any Holder or the Monitoring Agent, by suit in equity to enforce the restrictions hereof.
16. Compliance Certification. Upon written request therefor, a Holder and/or the Monitoring Agent shall provide a statement in form acceptable for recording certifying that the Grantor is in full compliance with the provisions hereof as relate to that Holder or the Monitoring Agent, provided such Holder or the Monitoring Agent believes that the Grantor is so in compliance. Upon receipt of a written request therefor, if a Holder or the Monitoring Agent shall believe that the Grantor is not so in compliance, such Holder or the Monitoring Agent shall provide such a recordable certification specifying in detail the section or sections hereof with which such Holder or Monitoring Agent believes the Grantor not to be in compliance. Any third party dealing with the Grantor may rely for all purposes on the truth and completeness of such a certification of a Holder or the Monitoring Agent.
17. Senior Lender Foreclosure.
A. Notwithstanding anything herein to the contrary, but subject to the provisions of this Section, if the holder of record of a first mortgage granted to a state or national bank, state or federal savings and loan association, cooperative bank, mortgage company, trust company, insurance company or other institutional or governmental lender shall acquire the Property by reason of foreclosure or similar remedial action under the provisions of such mortgage or upon conveyance of the Property in lieu of foreclosure, and provided that the holder of such mortgage has given the Holders not less than sixty (60) days' prior written notice of its intention to foreclose upon its mortgage or to accept a conveyance of the Property in lieu of foreclosure to attempt to structure a workout or other arrangement to avoid such foreclosure, conveyance in lieu of foreclosure, or similar remedial action, then except as provided below, the rights and restrictions herein contained shall not apply to such mortgage holder upon such acquisition of the Property or to any purchaser of the Property from such mortgage holder, and such Property shall, subject to Paragraph B. below, thereafter be free from all such rights and restrictions. Notwithstanding the foregoing, the rights and restrictions contained herein shall terminate only to the extent it is financially infeasible to maintain the level of affordability required by this Restriction or some lesser level of affordability (i.e., fewer Restricted Units or Restricted Units affordable to Families with higher Household Incomes than those required by this Restriction). "Financially infeasible" shall mean (i) with respect to the operation of the Property, that the rent and other income from the Property is, or is reasonably projected to be, less than the reasonable expenses required (or reasonably projected to be required) to maintain and operate the Property and (ii) with respect to a sale of the Property, that the restrictions would prevent (or be reasonably projected to prevent) the senior mortgage holder from recovering all amounts due and owing with respect to its financing of the Property, including without limitation, principal, interest, charges, costs, expenses, late fees and © 2006 Massachusetts Housing Partnership 12
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prepayment premiums. Financial infeasibility shall be determined by the senior mortgage holder in its sole discretion after consultation with the Holders. The senior mortgage holder shall notify the Holders of the extent to which the rights and restrictions contained herein shall be terminated and the Grantor agrees to execute any documents required to modify this Restriction to conform to the senior mortgage holder's determination. The Grantor hereby irrevocably appoints any senior mortgage holder and each of the Holders, its true and lawful attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver any such documents on behalf of the Grantor should the Grantor fail or refuse to do so.
B. The rights and restrictions contained herein shall not lapse if the Property is acquired through foreclosure or deed in lieu of foreclosure by (i) the Grantor, (ii) any person with a direct or indirect financial interest in the Grantor, (iii) any person related to a person described in clause (ii) by blood, adoption or marriage, (iv) any person who is or at any time was a business associate of a person described in clause (ii), and (v) any entity in which any of the foregoing have a direct or indirect financial interest (each a "Related Party"). Furthermore, if the Property is subsequently acquired by a Related Party during the period in which this Restriction would have remained in effect but for the provisions of this Section, this Restriction shall be revived and shall apply to the Property as though it had never lapsed.
C. In the event such mortgage holder conducts a foreclosure or other proceeding enforcing its rights under such mortgage and the Property is sold for a price in excess of the sum of the outstanding principal balances of all notes secured by mortgages of the Property plus all future advances, accrued interest and all reasonable costs and expenses which the holders thereof are entitled to recover pursuant to the terms of such mortgages, such excess shall be paid to the Holders in consideration of the loss of the value and benefit of the rights and restrictions herein contained and released by the Holders pursuant to this Section in connection with such proceeding, provided that in the event that such excess shall be so paid to the Holders by such mortgage holder, the Holders shall thereafter indemnify such mortgage holder against loss or damage to such mortgage holder resulting from any claim made by the mortgagor of such mortgage to the extent that such claim is based upon payment of such excess by such mortgage holder to the Holders in accordance herewith, provided that such mortgage holder shall give the prompt notice of any such claim and shall not object to intervention by the Holders in any proceeding relating thereto. The Holders shall share any such excess pro rata in proportion to the respective amounts of principal and interest (if any) then outstanding on their portions of the Loan and the liability of a Holder under the foregoing indemnity shall be limited to the amount of such excess received by it. To the extent the Grantor possesses any interest in any amount which would otherwise be payable to the Holders under this Paragraph, to the full extent permissible by law, the Grantor hereby assigns its interest in such amount to said mortgage holder for payment to the Holders.
18. Notices. Any notice, request or other communication which any party hereto may be required or may desire to give hereunder shall be made in writing, and shall be deemed to have © 2006 Massachusetts Housing Partnership 13
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AFFORDABLE HOUSING RESTRICTION been properly given if hand delivered, if sent by recognized national overnight courier, receipt confirmed, or if mailed by United States registered or certified mail, postage prepaid, return receipt requested, addressed, in the case of the Grantor, to the Grantor’s address set forth above and, in the case of one or more Holders, to the address(es) of such Holder(s) as set forth above with a simultaneous copy to the Monitoring Agent at its address set forth in Exhibit D. Any party may change its notice address by furnishing in writing to all other parties hereto a notice of such new notice address. A notice sent by certified or registered mail shall be deemed given three days after mailing; a notice sent by overnight courier shall be deemed given one day after deposit with such courier; and a notice delivered by hand shall be deemed given upon receipt.
19. Successors and Assigns; No Third-Party Beneficiaries. This Restriction shall be binding upon the Grantor and its successors and assigns, and shall burden the Property as specified herein. This Restriction shall also be binding upon the Holders and the Monitoring Agent, and shall inure to the benefit of their successors and assigns, provided that a Holder shall not voluntarily assign its rights hereunder unless (a) such Holder believes in good faith that it is no longer reasonably capable of performing its duties hereunder, and (b) such assignment shall be to a governmental body or an entity of a similar character and purposes to such Holder which is reasonably capable of performing such duties hereunder.
20. Severability; Construction. All rights, powers and remedies provided herein may be exercised only to the extent that exercise thereof does not violate any applicable law, and are intended to be limited to the extent necessary so that they will not render this Restriction invalid, unenforceable or not entitled to be recorded, registered or filed under applicable law. If any provision or part hereof shall be affected by such holding, the validity of other provisions of this Restriction and of the balance of any provision held to be invalid, illegal or unenforceable, in part only, shall in no way be affected thereby, and this Restriction shall be construed as if such invalid, illegal, or unenforceable provision or part hereof had not been contained herein. In the event of any actual or potential inconsistency between the terms of this Restriction and any of the Statutes and/or the Regulations, such terms shall be interpreted, to the extent reasonably possible, so as to reconcile any such inconsistencies. If such provisions cannot reasonably be reconciled, the provisions of the Statutes, the Regulations and this Restriction, in the foregoing order of priority, shall control.
21. Governing Law. This Restriction shall be governed by the laws of The Commonwealth of Massachusetts. Inasmuch as the restrictions contained herein have been imposed upon the Property in part to satisfy requirements of various governmental bodies referred to herein, including, without limitation, DHCD, the restrictions contained herein are intended to be constru ed as a restriction held by a governmental body with the benefit of Section 26 of Chapter 184 of the Massachusetts General Laws as existing as of the date hereof, such that the restrictions contained herein shall not be limited in duration by any rule or operation of law, but rather shall run for the full term thereof.
22. Recording. The Grantor, at its cost and expense, shall cause this Restriction and any amendment hereto to be duly recorded with the Registry of Deeds (and if necessary or appropriate, re-recorded), shall pay or cause to be paid all recording, filing, or other taxes, fees
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AFFORDABLE HOUSING RESTRICTION and charges and shall comply with all such statutes and regulations as may be required by law in order to establish, preserve and protect the ability of the Holders and their successors and assigns to enforce this Restriction.
23. Further Assurances. Each Holder is authorized to record or file any notices or instruments appropriate to assuring the enforceability of this Restriction; and the Grantor on behalf of itself and its successors and assigns appoints each Holder its attorney-in-fact to execute, acknowledge and deliver any such instruments on its behalf. Without limiting the foregoing, the Grantor and its successors and assigns agrees to execute any such instruments upon request. The benefits of this Restriction shall be in gross and shall be assignable by any Holder or the Monitoring Agent, as applicable. The Grantor and the Holders intend that the restrictions arising hereunder take effect upon the date hereof, and to the extent enforceability by any person ever depends upon the approval of governmental officials, such approval when given shall relate back to the date hereof regardless of the date of actual approval or the date of filing or recording of any instrument evidencing such approval.
24. Counterparts. This Restriction may be executed in several counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute one instrument. In making proof of this Restriction, it shall not be necessary to produce or account for more than one such counterpart executed by the party against whom enforcement of this Restriction is sought.
25. Incorporation of Exhibits and Riders. Any and all exhibits and riders attached hereto or otherwise referenced herein are hereby incorporated by reference, the same as if each were fully set forth herein.
26. Amendment; Waiver. This Restriction may not be amended, nor may any obligation hereunder be waived or released, without first obtaining the written consent of all Holders and of the Monitoring Agent.
No documentary stamps are required as this Restriction is not being purchased by the Holders.
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Executed under seal as of the date set forth above.
______, INC.
By:______Its: ______
ACCEPTED AND AGREED TO: The Commonwealth of Massachusetts acting by and through the Department of Housing and Community Development
By:______Its:
EXHIBIT A Property Description EXHIBIT B Projected Initial Rent Schedule EXHIBIT C Initial Affordability Matrix EXHIBIT D Additional Definitions
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COMMONWEALTH OF MASSACHUSETTS
______County, ss.
On this ______day of ______, 2010, before me, the undersigned notary public, personally appeared ______, the ______of ______, proved to me through satisfactory evidence of identification, which was (a current driver’s license) (a current U.S. passport) (my personal knowledge of the identity of the principal), to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily, in such capacity, for its stated purpose.
______Notary Public My commission expires:
Suffolk County, ss.
On this ______day of ______, 2010, before me, the undersigned notary public, personally appeared ______, the ______of the Massachusetts Department of Housing and Community Development, proved to me through satisfactory evidence of identification, which was (a current driver’s license) (a current U.S. passport) (my personal knowledge of the identity of the principal), to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily, in such capacity, for its stated purpose.
______Notary Public My commission expires:
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EXHIBIT A : PROPERTY DESCRIPTION
Property Description
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EXHIBIT B : PROJECTED INITIAL RENT SCHEDULE (Rents include utility allowance)
INCOME LEVEL
EXTREMELY LOW VERY MODERATE HIGH MODERATE UNIT TYPE INCOME LOW INCOME LOW INCOME INCOME INCOME SRO $305.00 $508.00 $610.00 $814.00 $1,119.00
STUDIOS $407.00 $678.00 $814.00 $1,086.00 $1,493.00
1-BR $436.00 $727.00 $873.00 $1,164.00 $1,600.00
2-BR $523.00 $872.00 $1,047.00 $1,397.00 $1,919.00
3-BR $605.00 $1,008.00 $1,210.00 $1,614.00 $2,219.00
4-BR $676.00 $1,125.00 $1,350.00 $1,801.00 $2,475.00
Notwithstanding the amounts provided herein, the projected Low Income rent schedule for the eleven (11) HOME units in the Project shall be as follows: 1- BR: $754.00; 2-BR: $1,047.00; and 3-BR: $1,210.00. © 2006 Massachusetts Housing Partnership 19
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EXHIBIT C : INITIAL AFFORDABILITY MATRIX
INCOME CATEGORY
NUMBER/SIZE OF UNITS HIGH MODERATE EXTREMELY LOW MODERATE INCOME LOW INCOME VERY LOW INCOME REQUIRED BY INCOME INCOME
____ SRO ____ SRO ____ SRO ____ SRO ____ SRO ____ STUDIO ____ STUDIO ____ STUDIO ____ STUDIO ____ STUDIO ____ 1-BR ____ 1-BR ____ 1-BR ____ 1-BR ____ 1-BR HOME ____ 2-BR ____ 2-BR 5 2-BR 2 2-BR ____ 2-BR ____ 3-BR ____ 3-BR 3 3-BR 1 3-BR ____ 3-BR ____ 4-BR ____ 4-BR ____ 4-BR ____ 4-BR ____ 4-BR
____ SRO ____ SRO ____ SRO ____ SRO ____ SRO ____ STUDIO ____ STUDIO ____ STUDIO ____ STUDIO ____ STUDIO ____ 1-BR ____ 1-BR 10 1-BR ____ 1-BR ____ 1-BR AHT ____ 2-BR ____ 2-BR 37 2-BR 7 2-BR 1 2-BR ____ 3-BR ____ 3-BR 3 3-BR 1 3-BR 1 3-BR ____ 4-BR ____ 4-BR ____ 4-BR ____ 4-BR ____ 4-BR
_____ SRO _____ SRO _____ SRO _____ SRO _____ SRO _____ STUDIO _____ STUDIO _____ STUDIO _____ STUDIO _____ STUDIO _____ 1-BR _____ 1-BR 10 1-BR _____ 1-BR _____ 1-BR COMPOSITE _____ 2-BR ____ 2-BR 37 2-BR 2 2-BR 6 2-BR _____ 3-BR ____ 3-BR 3 3-BR 1 3-BR 1 3-BR _____ 4-BR _____ 4-BR _____ 4-BR _____ 4-BR _____ 4-BR
_____ SRO _____ SRO _____ SRO _____ SRO _____ SRO _____ STUDIO _____ STUDIO _____ STUDIO _____ STUDIO _____ STUDIO _____ 1-BR _____ 1-BR _____ 1-BR _____ 1-BR _____ 1-BR 40R _____ 2-BR _____ 2-BR _____ 2-BR _____ 2-BR _____ 2-BR _____ 3-BR _____ 3-BR _____ 3-BR _____ 3-BR _____ 3-BR _____ 4-BR _____ 4-BR _____ 4-BR _____ 4-BR _____ 4-BR
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EXHIBIT D : ADDITIONAL DEFINITIONS
Following are additional definitions used in this Affordable Housing Restriction:
"AHT Guidelines" shall mean the guidelines issued by DHCD regarding the AHT Program, as the same may be amended, supplemented, replaced or otherwise modified from time to time.
"AHT Program" shall mean the Affordable Housing Trust Fund loan program established under the AHT Statute under which AHT makes loans available to sponsors of affordable housing for Low Income and Extremely Low Income Families.
"AHT Statute" shall mean the Massachusetts Affordable Trust Fund Statute, M.G.L. c.121D. "Area" shall mean ______.
"Bedroom Adjusted AMI" applicable to a Unit shall mean the median income for the Area, with adjustments for the number of bedrooms in such Unit, as determined from time to time by HUD pursuant to Section 8 of the United States Housing Act of 1937, as amended. For purposes of adjustments for the number of bedrooms in a Unit, a Unit that does not have a separate bedroom is assumed to be occupied by one individual and a Unit with one or more separate bedrooms is deemed assumed to be occupied by 1.5 individuals for each bedroom (with the total number of individuals rounded up). "Condominium" shall mean the ______Condominium.
"Extremely Low Income Family" shall mean a Family whose Household Income is less than or equal to thirty percent (30%) of the Family-size Adjusted AMI.
"Fair Market Rent" shall mean the fair market rent in the Area for a comparably-sized dwelling as established by HUD under regulations promulgated at 24 C.F.R. §888.11 (or successor regulations), minus a monthly allowance established by the Holders for any utilities and services (excluding telephone) to be paid by the occupying Family.
"Family" shall have the meaning set forth in 24 C.F.R. §5.403 (or any successor regulation). Notwithstanding the foregoing, a household comprised of a full-time student or students shall not qualify as a Family except as permitted under the federal low-income housing tax credit program pursuant to Section 42(i)(3)(D) of the Internal Revenue Code of 1986, as amended.
"Family-size Adjusted AMI" shall mean the median income for the Area, adjusted for family size, as determined from time to time by HUD pursuant to Section 8 of the United States Housing Act of 1937, as amended.
"Grantor" shall mean the Grantor named on the first page hereof or any successor or assign thereof permitted under Section 8 of this Restriction, including any party holding ownership interests in or with respect to the Property.
"Guidelines" shall mean the the HOME Guidelines and the AHT Guidelines.
"High Moderate Income Family" shall mean a Family whose Household Income is less than or equal to one-hundred-ten percent (110%) of the Family-size Adjusted AMI.
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"Holder" shall mean each of DHCD and AHT, or, as applicable, each successor or assign of the foregoing and "Holders" shall mean all of the foregoing parties, collectively.
"HOME Guidelines" shall mean the guidelines issued by DHCD regarding the HOME Program, as the same may be amended, supplemented, replaced or otherwise modified from time to time.
"HOME Program" shall mean the federal HOME Investment Partnerships Program under which DHCD makes loans available to sponsors of certain types of affordable housing.
"HOME Regulations" shall mean 24 C.F.R. Part 92.
"Household Income" shall mean a Family’s adjusted annual income determined in the manner set forth in 24 C.F.R. §5.609 (or any successor regulations).
"HUD" shall mean the United States Department of Housing and Urban Development.
"Improvements" shall mean the building or buildings on the Property presently containing, or after completion of the planned construction to contain, the number of Units indicated on the first page hereof, and all other authorized buildings, structures and improvements located on the Property from time to time, all equipment and fixtures therein, and any authorized repair, improvement, reconstruction, restoration, renovation, or replacement of a capital nature thereto or otherwise on the Property.
"Loan" shall mean collectively, the loans for the Project being provided to the Grantor under the Programs.
"Low Income Family" shall mean a Family whose Household Income is less than or equal to sixty percent (60%) of the Family-size Adjusted AMI.
"Master Deed" shall mean the master deed created pursuant to M.G.L. Chapter 183A, as amended, dated ______, 2010, and recorded with the ______Registry of Deeds in Book ______, Page ___.
"Moderate Income Family" shall mean a Family whose Household Income is less than or equal to eighty percent (80%) of the Family-size Adjusted AMI.
"Monitoring Agent" shall mean ______with a mailing address of ______, ______, Massachusetts _____, or its successor.
"Over-income Rent" shall mean, for a particular over-income Family, a monthly rent equal to the lesser of (x) the maximum amount payable by the Family under the laws of the municipality in which the Property is located or of The Commonwealth of Massachusetts, (y) one-twelfth of thirty percent (30%) of the Family's Household Income as recertified annually or (z) the comparable market rent for the Family’s Unit.
"Permitted Encumbrances" shall mean those encumbrances on the Property identified in the mortgage granted to the Holders of even or near date herewith.
"Permitted Uses" shall mean use of the Improvements for the number of rental Units indicated on the first page hereof, including the number of Restricted Units indicated on the first page hereof.
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Such Permitted Uses shall include activities and/or services of a nature to benefit the Residents of the Restricted Units.
"Programs" shall mean the HOME Program and the AHT Program.
"Property" shall mean the Grantor’s fee simple interest in Units __ described on Exhibit A attached hereto of the Condominium, located at the Property Address indicated on the first page hereof and more particularly described in the Master Deed, together with all Improvements thereon.
"Registry of Deeds" shall mean the ______Registry of Deeds.
"Regulations" shall mean the HOME Regulations.
"Residents" shall mean the lawful occupants of the Units.
"Restricted Unit" shall mean a Unit required by the terms hereof to be rented to a Extremely Low Income Family, a Low Income Family or a Very Low Income Family.
"Sponsor" shall mean ______.
"SRO Unit" shall mean a single-room (zero bedroom) Unit intended for occupancy by a single eligible Resident and that contains neither food preparation nor sanitary facilities.
"Statutes" shall mean the AHT Statute.
"Studio Unit" shall mean a single-room (zero bedroom) Unit intended for occupancy by a single eligible Resident that contains food preparation and/or sanitary facilities.
"Unit" shall mean any residential unit located on the Property.
"Very Low Income Family" shall mean a Family whose Household Income is less than or equal to fifty percent (50%) of the Family-size Adjusted AMI.
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29
Photographs of Property
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Above: Looking south from Gould Street to one of the current entrances to the building Below: Western parking lot looking to the southwest from Gould Street
31
Above: The eastern parking lot and second existing curb cut looking to the south Below: Exterior wall facing due east from adjacent property 32
Above: looking across current postal office site/parking due south towards Gould Street
33
Photographs of Adjacent Property
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Above: 123 Haven Street from Gould Street Below : 34 Gould Street
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Above: 75-85 Haven Street Below: 16-18 Gould Street
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Above: 26 Green Street Below: 20 Green Street
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Above: 18 Green Street Below: 28 Green Street
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Above: 32 Green Street
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Trip Generation Memo