HomeMy WebLinkAboutCT 14-07; BWR 16 LLC; 2018-0156903; Affordable Housing Agreement/ReleaseRECORDING REQUESTED BY:
DOC# 2018-0156903
11111111111111111111111111111111111111111111111 IIIII IIIII 1111111111111
Apr 19, 2018 04:16 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr,
AND WHEN RECORDED
MAIL TO: IJ)
SAN DIEGO COUNTY RECORDER
FEES $0.00 (SB2 Atkins $0 00)
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Affordable Housing Agreement Imposing Restrictions on Real PropeR.1'{
(Please fill in document title(s) on this line)
1 D Exempt from fee per GC27388.1 due to being recorded in connection with concurrent transfer that
is subject to the imposition of documentary transfer tax, or,
2 D Exempt from fee per GC27388.1 due to being recorded in connection with a transfer that was
subject to documentary transfer tax which was paid on document recorded previously on
_______ (date) as document number ____________ of Official
Records, or,
3 D Exempt from fee per GC27388.l due to the maximum fees being paid on documents in this
transaction, or,
4 D Exempt from fee per GC27388.1 due to the maximum fees having been paid on documents in the
transaction(s) recorded previously on __________ (date) as document number(s)
_______________________ of Official Records, or
5 D Exempt from fee per GC27388.1; document transfers real property that is a residential dwelling to
an owner-occupier, or,
6 D Exempt from fee per GC27388.l due to being recorded in connection with concurrent transfer that
is a residential dwelling to an owner-occupier, or,
7 D Exempt from fee per GC27388.1 due to it being recorded in connection with a transfer of real
property that is a residential dwelling to an owner-occupier. The recorded document transferring
the dwelling to the owner-occupier was recorded on __________ (date) as
document number(s)
_________________________________ , or,
8 D Exempt from the fee per GC 27388.1 (a) (1); Not related to real property, or,
9 ~ Exempt from fee under GC27388. l for the following reasons:
GC27388.1 (a)(2)(D) recorded real estate instrument by municipality
THIS PAGE ADDED TO PROVIDE SENATEBILl2EXEMPTIONINFORMAllON
(Additional recording fee applies)
\
RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad California 92008
(Space above for Recorder's Use)
AFFORDABLE HOUSING AGREEMENT
IMPOSING RESTRICTIONS ON REAL PROPERTY
This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON
REAL PROPERTY ("Agreement"), entered into this !Or~ day of P.PRtL
2018, by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred
to as the ("City"), and BWR 16, LLC, a CALIFORNIA LIMITED LIABILITY company
(hereinafter referred to as the "Developer"), is made with reference to the following:
A. Developer is the owner of certain real property in the City of Carlsbad, in the
County of San Diego, California (hereinafter referred to as the "Subject Property") described in
"Attachment A", which is attached hereto and incorporated herein by this reference.
B. For the purposes of this Agreement, Developer currently intends to construct a
total of sixteen ( 16) residential units (hereinafter referred to as the "Development") on the
Subject Property. The City has approved Tentative Tract Map CT 14-07, and Village Review
Permit RP 14-20 (which also serves as the approved Site Development Plan) for the
Development, known as Beachwalk at Roosevelt. The City issued the approval subject to certain
Conditions of Approval, including a condition requiring at least fifteen percent ( 15%) of the units
in the Development to be affordable housing as required by the City's Inclusionary Housing
Ordinance (CMC Chapter 21.85).
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Satisfaction of Affordable Housing Obligation and Conditions of Approval. In
order to satisfy the Conditions of Approval for the Development and requirements of the City's
Inclusionary Housing Ordinance, Carlsbad Municipal Code Chapter 21.85, Developer shall
provide a total of two (2) Affordable Units on-site which shall be restricted and affordable to
lower-income households. This Agreement is an Affordable Housing Agreement pursuant to
Section 21.85.140 of Chapter 21.85 of the Carlsbad Municipal Code. Developer shall submit
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this Agreement to City and Agreement shall be executed prior to the approval of the final map
for the Subject Property.
2. Terms Governing Provision of Affordable Ownership Units.
2.1. Obligation to Provide Affordable Units.
2.1.1. Developer shall provide the two (2) on-site Affordable Units in
relation to the sixteen (16) Market Units ("Market Units") on the Subject Property. The
Affordable Units shall include two bedroom units with the square footage indicated in
"Attachment B" to this Agreement. The maximum allowable income level of buyers of the
affordable units shall be restricted to a maximum of 80% of the area median income.
2.2 Schedule for Developing Affordable Units.
2.2.1. Prior to the approval of any Final Map, Grading Permit or Building
Permit for the Development: (i) this Agreement shall be duly executed and recorded against the
entire development property; and (ii) the Developer shall have received approval and submitted a
copy of a Site Development Plan (or Village Review Permit) for the development which will
include all of the Affordable Units to the Housing and Neighborhood Services Director.
2.2.2 Upon satisfying the applicable conditions stated in Sections 2.2.1, all
building permits can be released for the Market Units and for the Affordable Units.
2.3 Terms for Sale of Affordable Units.
2.3.1. The Schedule of Maximum Eligible Buyer Incomes and Affordable
Subsidized Purchase Prices (the "Schedule") attached hereto and incorporated herein as Exhibit
C sets forth the City's requirements for determining the maximum household income of buyers of
the Affordable Units ("Eligible Buyers") and the methodology for calculation of the subsidized
purchase prices of Affordable Units which will be affordable to each of the Eligible Buyers (the
"Affordable Purchase Prices"). The Schedule also includes initial estimates of Eligible Buyer
actual incomes and the corresponding Affordable Purchase Prices. The Final Schedule shall be
established prior to sale based on the San Diego County Area Median Income and the cost factors
applicable at the time. The Final Schedule shall be submitted by the Developer to the City and
approved by the City's Housing and Neighborhood Services Director prior to the marketing of the
Affordable Units.
2.3.2. The Developer shall sell the Affordable Units only to Eligible
buyers whose household incomes have been verified by the Developer. The purchase price for an
Affordable Unit (the "Market Purchase Price") shall be the market price charged for a
comparable unit (and not to exceed fair market value); provided, however, that the Developer
shall carry back financing equal to the difference between the appraised Market Purchase Price
and the calculated Affordable Purchase Price for the particular Eligible Buyer (the "Primary
Affordability Subsidy"). The carryback financing shall be assigned by the Developer to the City,
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and shall be evidenced by a promissory note from the Eligible Buyer to the City, secured by a
second mortgage deed of trust on the Affordable Unit (the "City Second Mortgage"). The
balance of the Market Purchase Price shall be paid by the Eligible Buyer to the Developer in
cash, utilizing downpayment monies and first mortgage proceeds.
2.4 Terms for Re-sale of Affordable Units. After the initial sale of the inclusionary for-
sale units at a price affordable to the target income level group, inclusionary for-sale units shall
remain affordable to subsequent low income eligible buyers pursuant to a resale restriction for a
minimum term of fifteen ( 15) years. Beginning in the sixteenth (16) year after the initial purchase of
an Affordable Unit, for-sale units may be sold at a market price to other than targeted lower income
households provided that the sale shall result in the recapture by the City or its designee of a
financial interest in the units equal to the amount of subsidy necessary to make the unit affordable
to the designated income group and a proportionate share of any appreciation. Funds recaptured by
the City shall be used in assisting other eligible households with home purchases at affordable
prices. To the extent possible, projects using for-sale units to satisfy inclusionary requirements
shall be designed to be compatible with conventional fixed rate mortgage financing programs
including secondary market requirements.
3. City Approval of Documents.
3.1. The following documents, in form and substance acceptable to the City,
shall be used in connection with the sale of Affordable Units. Documents to be prepared by
Developer shall be submitted to the Housing and Neighborhood Services Director for review and
approval no later than the start of construction of the Affordable Units.
3.1.1. A marketing plan establishing the process for seeking, selecting and
determining the eligibility of buyers of the Affordable Units shall be prepared by the Developer
and submitted to the Housing and Neighborhood Services Director for review and approval.
3 .1.2. An educational program informing Affordable Unit purchasers of the
obligations of home ownership and the specific features of this program shall be prepared by the
Developer, and each new homeowner must successfully complete this educational program.
3.1.3. Purchase and Sale Agreements for sale of the Affordable Units shall be
prepared by the Developer.
3.1.4. City Second Mortgage promissory note, deed of trust, and borrower
disclosure form shall be prepared by the City and provided to the Developer.
3.2 Any of the documents identified in Sections 3.1 may be revised by Developer
from time to time with the prior written approval of the City's Housing and Neighborhood
Services Director.
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4. Mortgage Credit Certificate Program. Buyers of the Affordable Units may qualify
for income tax credits pursuant to Mortgage Credit Certificate (MCC) Program, for a portion of
the annual interest paid on a first mortgage used to acquire the Affordable Unit. City shall
cooperate with Developer in obtaining and providing to prospective buyers Mortgage Credit
Certificates from allocations which it may receive.
5. Reporting and Compliance Monitoring. A report verifying compliance with the
requirements of this Agreement covering the initial sales of the Affordable Units shall be
provided to the City by the Developer and approved by the Housing and Neighborhood Services
Director or designee. Developer shall provide the City with other reports as reasonably required
by the City to verify compliance with this Agreement
6. Default. Failure of the Developer to cure any default in the Developer's
obligations under the terms of this Agreement within (90) days after the delivery of a notice of
default from the City ( or where the default is of the nature which cannot be cured within such
ninety (90) period, the failure of the Developer to commence to cure such default within the
ninety (90) day period or the Developer's failure to proceed diligently to complete the cure of
such a default within a reasonable time period but in no event not greater than 180 days) will
constitute a failure to satisfy the Conditions of Approval with respect to the Subject Property and
the requirements of Chapter 21.85 of the Carlsbad Municipal Code and void the approval of the
Final Map and Site Development Plan or Village Review Permit; and the City may exercise any
and all remedies available to it with respect to the Developer's failure to satisfy the Conditions of
Approval, including but not limited to, the withholding of building permits for the Market Units
within the Subject Property until such cure is completed.
7. Appointment of Other Agencies. At its sole discretion, City may designate,
appoint or contract with any other public agency, for-profit or non-profit organization to perform
the City's obligations under this Agreement.
8. Release of Subject Property from Agreement. The covenants and conditions
herein contained shall apply to and bind the Developer and its heirs, executors, administrators,
successors, transferees, and assignees of all the parties having or acquiring any right, title or
interest in or to any part of Subject Property and shall run with and burden the Subject Property
until terminated in accordance with the provisions hereof. Prior to the issuance of building
permits, the Developer shall expressly make the conditions and covenants contained in this
Agreement a part of any deed or other instrument conveying any interest in the Subject Property.
Notwithstanding anything to the contrary set forth in the Agreement, individual purchasers of
market rate units pursuant to an approved public report in compliance with the California
Subdivided Lands Act, and mortgage lenders holding deeds of trust on such individual units after
sale to such purchasers, shall not be subject to the terms of this Agreement; and the terms of this
Agreement shall be of no further force or effect with respect to such completed unit on the date
of the recordation of a deed to the individual purchaser. Upon issuance of certificates of
occupancy for all of the Affordable Units, the entire Subject Property, with the exception of the
property subject to the approved Site Development Plan or Village Review Permit, shall be
released from the burdens of this Agreement. The burdens of this agreement shall remain in full
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force and effect and recorded against the property subject to the approved Site Development Plan
or Village Review Permit in accordance with the terms of this agreement. The burdens of this
agreement shall remain in full force and effect and recorded against the affordable units for a
minimum of 30 years.
9. Hold Harmless. Developer will indemnify and hold harmless (without limit as to
amount) City and its elected officials, officers, employees and agents in their official capacity
(hereinafter collectively referred to as "lndemnitees"), and any of them, from and against all loss,
all risk of loss and all damage (including expense) sustained or incurred because of or by reason
of any and all claims, demands, suits, actions, judgments and executions for damages of any and
every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of
or relating in any manner to Developer's performance or non-performance pursuant to this
Agreement, and shall protect and defend lndemnitees, and any of them with respect thereto. The
provisions of this section shall survive expiration or other termination of this Agreement or any
release of part or all of the Property from the burdens of this Agreement, and the provisions of
this Section 9 shall remain in full force and effect
10. Insurance Requirements: Developer shall obtain, at its expense, comprehensive
general liability insurance for the development of the Subject Property naming lndemnitees as
additional named insureds with one million dollars ($1,000,000) per occurrence and aggregate
limits of not less than two million dollars ($2,000,000) for bodily injury and death and property
damage, including coverages for contractual liability and products and completed operations,
purchased by Developer or its successors or assigns from an insurance company duly licensed to
engage in the business of issuing such insurance in the State, with a current Best's Key Rating of
not less than A-:V, such insurance to be evidenced by an endorsement which so provides and
delivered to the Housing and Neighborhood Services Department prior to the issuance of any
building permit for the Subject Property. Said insurance shall remain in effect until all affordable
units have been constructed and a certificate of occupancy or approval of final inspection by the
City for all of the affordable units has been completed.
11. Notices. All notices required pursuant to this Agreement shall be in writing and
may be given by personal delivery or by registered or certified mail, return receipt requested, to
the party to receive such notice at the addressed set forth below:
TO THE CITY OF CARLSBAD
CITY OF CARLSBAD
Housing and Neighborhood Services Department
Attn: Housing and Neighborhood Services Director
1200 Carlsbad Village Drive
Carlsbad, California 92008
CA 6/25/14
TO THE DEVELOPER:
McCenzia Holdings LLC
1818 1st A venue, Suite 100
San Diego, Ca. 92101
Attention: R. Geoffrey McComic
And a copy to:
RB Ruxton, LLC
2922 Daimler Street
Santa Ana, Ca. 92705
Attention: Scott Lissoy
Any party may change the address to which notices are to be sent by notifying the other
parties of the new address in the manner set forth above.
12. Integrated Agreement. This Agreement constitutes the entire Agreement between
the parties and no modification hereof shall be binding unless reduced to writing and signed by
the parties hereto.
13. Duration of Agreement.· This Agreement shall remain in effect for 30 years for all
affordable ownership units, and/or shall terminate and become null and void upon the: (a) the
closing of the sale of the last of the Affordable Units to an individual eligible purchaser pursuant
to a sale on an approved public report in compliance with the California Subdivided Lands Act,
or (b) upon the granting of a written release by the Housing and Neighborhood Services Director.
This Agreement, and any section, subsection, or covenant contained herein, may be amended
only upon the written consent of Developer and the Housing and Neighborhood Services
Director.
14. Recording of Agreement. The parties hereto shall cause this Agreement to be
recorded against the Subject Property in the Official Records of the County of San Diego.
15. Severability. In the event any limitation, condition, restriction, covenant, or
provision contained in this Agreement is to be held invalid, void or unenforceable by any court of
competent jurisdiction, the remaining portions of this Agreement shall nevertheless be and
remain in full force and effect.
(The remainder of this page has been left intentionally blank)
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed as of the day and year first above written.
Developer
BWR 16LLC,
A California Limited Liability Company
By: McCenza Holdings, LLC, a Delaware
limited liability c P. Y. s Managing
Member
By:
Name:
Title:
. Geoffrey McComic
anaging Member
James Carenza
anaging Member
City
City of Carlsbad, a Mun~l corporation
By: ~.1 ~~:)
Housing & Neighborhood Services Director
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA BREWER, City Attorney
By: {?gd{~-
Assistant City Attorney
CA 6/25/14
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validitv of that document.
State of California
County of-=-Sa=n..:..=D.;..:ie"'"g=o ____ _
On April 2. 2018 before me, Pamela Mackell. Notary Public
(Here Insert name and title of Notary)
personally appeared, R. Geoffrey McComic and James Carenza •
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity (ies) and that by his/her/their signatures(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
(Notary Seal)
Signature of Notary Public
•
PAMB.A MACKELL COMM,12113414 ,
NOTARY PlllLIC • CALFORNIA SAN DEGO COlNTY · • CommiuianEicpirnMAY29, 2019
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
Affordable Housing Agreement-Imposing
Qescription of attached document))
Restrictions on Real Property
{Title or description of attached document continued)
Number of Pages 11
Document Date ________ _
CAPACITY CLAIMED BY THE SIGNER
D Individual (s)
C Corporate Officer
(Title)
D Partner (s)
D Attorney-in-fact
D Trustee (s)
Other Developer for BWR 16, LLC a Cal.
Limited Liability Company,By: McCenza Holdings LLC, a
Delaware Limited Liability Co. Managing Members
INSTRUCTION FOR COMPLETING THIS FORM
This form complies with current California statues regarding notary wording
and, if needed should be completed and attached to the document.
Acknowledgements from other states may be completed for documents being
sent to that state so long as the wording does not require the California Notary
to violate California Notary Law.
• State and Country information must be the State and County where the document
signer (s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer (s) personally appeared which
must also be the same date the acknowledgement if completed.
• The notary public must print his or her name as it appears within his or her
commissioned followed by a comma and then your title (notary public)
• Print the name (s) of document signer (s) who personally appeared at the time of
Notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms. (i.e.
Melshelthey, is/are) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impressions must not cover text or lines. If seal impression smudges, re-seal if
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
• Additional information is not required but could help to ensure this
acknowledgement is not misused or attached to a different document
• Indicate title or type of attached document, number of pages and date
• Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary)
Securelv attach this document to the sianed document.
ATTACHMENT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Real property in the City of Carlsbad, County of San Diego, State of California, described as
follows:
PARCEL 1: (APN: 203-101-02-00)
THE NORTHEAST HALF OF LOT 26, SEASIDE LANDS, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 1722, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JULY 28, 1921.
PARCEL 2: (APN: 203-101-05-00)
THAT PORTION OF THE NORTHEASTERLY HALF OF LOT 27, SEASIDE LANDS, IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING THE MAP THEREOF NO. 1722, FILED IN THE OFFICE OF THE COUNTY
RECORDER, JULY 28, 1921, LYING NORTHWESTERLY OF THE NORTHWESTERLY
LINE OF THE SOUTHEASTERLY 60 FEET OF SAID LOT.
PARCEL 3:
AN EASEMENT AND RIGHT OF WAY FOR INGRESS AND EGRESS FOR SEWER PIPE
LINE PURPOSES OVER THE NORTHEASTERLY 3 FEET OF THE NORTHWESTERLY
HALF OF LOT 27 OF SEASIDE LANDS, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1722, FILED IN THE OFFICE OF
THE COUNTY RECORDER, JULY 18, 1921.
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Building#
NIA
NIA
ATTACHMENT B
LOCATION, SIZE, AND BEDROOM COUNT
OF AFFORDABLE UNITS
Unit Square Feet Bedrooms
D6 1291 2
Dl 1 1291 2
Bath
2.5
2.5
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ATTACHMENT C
SEE ATTACHED
2017 HUD MEDIAN INCOMES
& AFFORDABLE PRICE ESTIMATOR
CA 6/25/14
Low Income (80%) Sales Price & Mortgage Calculator (2017)
Studio One Bdr Two Bdr Three Bdr Four Bdr
Loan Amount $ (159,465) $ (190,380) $ (220,374) $ (284,918) $ (334,672)
Annual Interest Rate 5.00% 5.00% 5.00% 5.00% 5.00%
# of Payments (Months) 360 360 360 360 360
Monthly Mort. Payment I $856.04 I $1,022.00 I $1,183.021 $1,529.50 I $1,796.59
Annual debt service $ (10,273) $ (12,264) $ (14,196) $ (18,354) $ (21,559)
Gross Annual Income (80%AMI) $ 50,950 $ 58,200 $ 65,500 $ 78,600 $ 90,250
35% 35% 35% 35% 35%
Mx. Affordable Housing Payment $ 1,486.04 $ 1,697.50 $ 1,910.42 $ 2,292.50 $ 2,632.29
Maximum Loan Pmt.(P&I) $ 856.04 1,022.00 $ 1,183.02 1,529.50 1,796.59
Qualified Loan Amount $ (159,465) $ (190,380) (220,374) (284,918) (334,672)
Maximum Affordable Sales Price I $ 171,965 $ 205,380 $ 240,374 $ 309,918 $ 364,672
(loan amount + 5% of MV)
Est. Market Value Sales Price $ 250,000 $ 300,000 $ 400,000 $ 500,000 $ 600,000
Buyer Downpayment (5% of MV) $ 12,500 $ 15,000 $ 20,000 $ 25,000 $ 30,000
Est. Affordable Sales Price $ 172,000 $ 205,500 $ 240,400 $ 310,000 $ 364,700
Total Housing Costs:
Monthly loan payment (P & I) $ 856 $ 1,022 $ 1,183 $ 1,530 $ 1,797
taxes/mo. (1.2% of Aff Price) $ 172 $ 206 $ 240 $ 310 $ 365
PMI $ 40 $ 40 $ 46 $ -$ -
HOA $ 350 $ 350 $ 350 $ 350 $ 350
Utility Allowance $ 68 $ 80 $ 91 $ 103 $ 121
Total Housing Costs $ 1,486 $ 1,698 $ 1,910 $ 2,293 $ 2,632
Assumed HH Size: 1 person 2 persons 3 persons 5 persons 7 persons