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HomeMy WebLinkAboutCT 92-02; Sambi Seaside Heights LLC; 1997-0045122; Affordable Housing Agreement/Release\ . . \ . RECORDING REQUESTED BY: City of Carlsbad WHEN RECORDED MAIL TO: City of Carlsbad City Clerk’s Offrce Attn.: City Clerk 1200 Carlsbad Village Drive Carlsbad, California 92008 1725 Dii.i II 1997-0045122 03-FEE-1997 MI=53 All DFFICM. RECORDS SAN DIEM COUNTY RECORDER’S OFFICE GREGORY SI’IITH, COUN;;E$CORDER ;;; iv. 00 : 49.00 2;m 00x flF: . (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 ;’ c%# day of &&A.*-1996, by and A between the CITY OF CARLSBAD, a Municipal Corporation (hereinafter referred to as the “City”), and SAMBI SEASIDE HEIGHTS, L.L.C., (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 Exhibit “A,” which is attached hereto and incorporated herein by this reference. B. Developer wishes to construct 235 residential housing units for sale at prevailing market prices (“Market Units”) and 42 residential housing units for sale at affordable prices (“Affordable Units”) on the subject property. The City has approved Carlsbad Tentative Tract Map Number CT 92-02(A), Planned Unit Development Number 92-06(A), and Site Development Plan Number SDP 92-06(A), for the proposed development. The City issued this approval subject to certain Conditions of Approval, including a condition requiring the SAMBLAGBJZE 2 1 11/07/96 /Anita ,- - I . 1726 Developer to enter into an Affordable Housing Agreement in which Developer agrees to provide 42 dwelling units affordable to lower-income households. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Satisfaction of Affordable Housing Obligation and Conditions of Annroval. In order to satisfy the Conditions of Approval and requirements of the City’s Inclusionary Housing Ordinance, Carlsbad Municipal Code Chapter 21.85, Developer shall provide a total of forty-two (42) Affordable Units which shall be initially restricted and affordable to lower income households. This Agreement is an Affordable Housing Agreement pursuant to Section 21.85.030(b)(S) of Chapter 21.85 of the Carlsbad Municipal Code. Developer shall submit 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 Units. 2.1. Obligation to Provide Affordable Units. 2.1 .l. Developer shall provide Affordable Units in relation to Market Units (“Market Units”) on the Subject Property according to the following chart: Number of Bedrooms Number of Ownership Affordable Units Maximum Allowable Income Level of Buyers of Affordable units 2 - Bedrooms 3 - Bedrooms 12 80% AMI* 30 80% AM1 TOTAL 42 l San Diego County Area Median Income (AMY. SAMBLAGREE 2 2 11/07/96 /Anita - Schedule for Develoning Affordable Units. 1727 2.2.1 Developer shall begin construction of the Affordable Units before the date on which building permits have been issued for one hundred (100) Market Units on the Subject Property. 2.2.2 Developer shall complete construction of all forty-two (42) Affordable Units and make them available for purchase within eighteen (18) months of the commencement date of construction of the Affordable Units. 2.3 The Affordable Units shall be developed in accordance with the approved Site Development Plan SDP 92-06(A). 2.4 Terms for Sale of Affordable Units. 2.4.1 The Schedule of Maximum Eligible Buyer Incomes and Affordable Subsidized Purchase Prices (the “Schedule”) attached hereto and incorporated herein as Exhibit B sets forth the City’s requirements for 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 Affordable Purchase Prices will vary depending on the actual household income of the Eligible Buyer. 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 and approved by the City’s Housing and Redevelopment Director prior to the marketing of the Affordable Units. 2.4.2 The Developer shall sell the Affordable Units only to Eligible Buyers whose household incomes have been verified by the Developer. The purchase price for SAMBLAGREE 2 3 1 l/07/96 /Anita I I I- 1728 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 Market Purchase Price and the Affordable Purchase Price for the particular Eligible Buyer (the “Primary Affordability Subsidy”). The carryback financing shall be assigned by the Developer to the City, shall include the $10,800 Direct City Subsidy loan amount described in Section 4 below, and shall be evidenced by a single 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. A summary and example of the method of payment of the Market Purchase Price of an Affordable Unit by an Eligible Buyer is shown in Exhibit C. 3. Citv Annroval 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 the Developer shall be submitted to the Housing and Redevelopment 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. 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. 3.1.3. Purchase and Sale Agreements for sale of the Affordable Units SAMBLAGREE 2 lllO7196 / Anita 4 shall be prepared by the Developer. 3.1.4. City Second Mortgage promissory note, deed of trust, and borrower disclosure form shall be provided by the City. 3.1.5. Loan documents (including, without limitation, loan agreement, promissory note, and deed of trust) evidencing and securing the City Loan to the Developer described in Section 4 below shall be provided by the City. 3.2 Any of the documents identified in this section 3.1 may be revised by Developer from time to time with the prior written approval of the Housing and Redevelopment Director. 4. Citv Financial Assistance to Develouer.. To assist Developer in construction of the Affordable Units, the City shall lend to Developer and Developer shall borrow from the City an amount equal to $453,600 (the “City Loan”). Following execution and recordation of the City Loan documents, the City shall deposit the full face amount of the City Loan with a construction lender selected by Developer (“Construction Lender”) within 48 hours of request therefor by the Construction Lender. City shall execute any commercially reasonable agreement requested by Construction Lender in connection with the administration and disbursement by the Construction Lender of the funds from the City Loan to the Developer which may include the right to commingle the funds from the City Loan with the proceeds of any loans made by Construction Lender to Developer for the development of the Subject Property. The City Loan shall be evidenced by an agreement between City and Developer and a promissory note from Developer to City, and secured by a deed of trust on the portion of the Subject Property where the Affordable Units will be constructed (the “City Deed of Trust”). The City will subordinate the City Deed of Trust to the deed of trust securing the loan from the Construction Lender, on such commercially reasonable terms as are requested by the SAMBLAGREE 2 11/07/96 I Anita 5 . 178Q Construction Lender, provided notice of default by Developer under the Construction Loan and an opportunity to cure are provided to the City. The City Loan will be assumed by Eligible Buyers of the Affordable Units pursuant to the following procedure. When an Affordable Unit is sold, the Eligible Buyer will execute a City Second Mortgage promissory note to the City in the amount of the Primary Affordability Subsidy described in Section 2.4 above (which Primary Affordability Subsidy shall include $10,800 of the City Loan amount), to be secured by a City Second Mortgage deed of trust on the Affordable Unit to the City. Upon execution of the City Second Mortgage note and recordation of the City Second Mortgage deed of trust, the City will credit the Developer with repayment of $10,800 of the City Loan and will partially reconvey the City Deed of Trust from the Affordable Unit being sold. Upon sale of all 42 Affordable Units, the City Loan shall have been repaid in full and the City Deed of Trust shall have been fully reconveyed. 5. 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. 6. 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 certified by a third party such as a Certified Public Accountant approved by the Housing and Redevelopment Director. Developer shall provide the City with other reports as reasonably required by the City to verify compliance with this Agreement. SAMBI.AGREE 2 11/07/96 /Anita 7. Default. Failure of the Developer to cure any default in the Developer’s obligations under the terms of this Agreement within ninety (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) day 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) 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; 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. 8. 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. 9. Burden to Run with Prouertv. The covenants and conditions herein contained shall apply to and bind the 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 this Agreement, individual purchasers of 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 SAMBI.AGREE 2 N/07/96 / Anita 7 1732 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. 10. 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 “Indemnitees”), 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 actions or defaults pursuant to this Agreement, and shall protect and defend Indemnitees, and any of them with respect thereto. Developer shall obtain, at its expense, the following insurance policies for development of the Subject Property naming Indemnitees as additional named insureds with aggregate limits of not less than five million dollars ($5,000,000) purchased by Developer 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 City Clerk prior to the issuance of any building permit for the Subject Property. 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: SAMBI.AGREE 2 1 l/07/96 I Anita TO THE CITY OF CARLSBAD: CITY OF CARLSBAD Housing and Redevelopment Department Attn: Housing and Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, California 92008-2389 TO THE DEVELOPER: SAMBI SEASIDE HEIGHTS, L.L.C. Attn: Charles P. Mallon 864 1 Firestone Boulevard Downey, California 90241 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 terminate and become null and void upon the earlier of: (a) the closing of the sale of the last of the Affordable Units to an individual 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 Community Development Director. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of Developer and the Community Development 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. SAMBI.AGBEE 2 11/07/96 /Anita 15. SeverabiliQ. 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. DEVELOPER CITY SAMBI SEASIDE HEIGHTS, L.L.C. CITY OF CARLSBAD, By: Name:si 36 H. -rd\~dL~ VA Title: Community Development Director APPROVED AS TO FORM &iL \\ \&,. RONALD R. BALL City Attorney SAMBI.AGREE 2 1 l/07/96 /Anita 10 . STATE OF CALIFORNIA > 1735 COUNTY OF Los Ah&s ; ss* / 9 on //- //- 1994, before me, appeared s?‘is 4 *Qd /.Mka /p/ ., pp A AC/q $7,2, personally and 1 personally known to me (or Graved to me on the basis of satisfactory evidence) to be the person&) whose name@) is/w subscribed to the within instrument and acknowledged to me that he/w executed the same in his&&l&r authorized capacity&+, and that by his/h&h& signaturM$) on the instrument the person@, or the entity upon behalf of which the person@) acted, executed the instrument. WITNESS my hand and official seal. 00 c Notary Public in and for (SE-W STATE OF CALIFORNIA ,199-, before me, (SEAL) SAMBI.AGREE 2 11/07/96 I Anita 11 n CALlFORidlA ALl.=PlJRPOs~ ACKNOWLEDGMENT _. . State of County of On~bVJ.hl&ll, 121 /?qr before rne,j&&?? m&V, flm&, &.Rw, Date f Name and Title of Offi& (e!g., ‘Jane Doe, f$hy ffiblic”) personally appeared A,/ o/!wl VAk I / NameIs) of Signer(s) ,@$ personally known to me - OR - Cl proved to me on the basis of satisfactory evidence to be the person@) whose name@) is/M subscribed to the within instrument and acknowledged to me that he/sh&hey executed the same in his/f&their authorized capacity(ies), and that by his/her/tft& signature(e) on the instrument the person(s), RAENETTE ABBEY or the entity upon behalf of which the person@ acted, COMM. + 1o4Bszl executed the instrument. Notary Public - California SAN DIEGO COUNW my hand and official seal. Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document 4?~! Document Date: 1 1 Number of Pages: ,iL;/ Signer(s) Other Than Named Above: <E/zd, is. mYoti&B & /?rQtM 0 R. &acL Capacity(ies) Claimed by Signer(s) Signer’s Name: h&WIH A@-47 \/AK 0 Individual 0 Corporate Officer Title(s): Cl Partner - q Limited 0 General 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator m Other: (?fJvn 4 u n !, t, llxla@bE~ l&.gwa& Signer Is Representing: Top of thumb here Signer’s Name: cl Individual 0 Corporate Officer Title(s): 0 Partner - cl Limited 0 General Cl Attorney-in-Fact q Trustee 0 Guardian or Conservator q Other: Signer Is Representing: Top of thumb here 0 1994 National Notary Association * 8236 Remmet Ave., P.O. Box 7164 l Canoga Park, CA 91309.7164 Prod. No. 5907 Reorder: Call Toll-Free 1-600-876-6827 CONSULTA January 15,1997 J.N.: 95-1017 Paul Klukas Planning Systems 2 111 Palomar Airport Road, Suite 100 Carlsbad, CA 92009 SUBJECT: LEGAL DESCRIPTION OF SAMBI SEASIDE HEIGHTS (CT 92-02) Dear Paul: As the final map has now recorded, the new legal description of Sambi Seaside Heights is: Map 13378 recorded in the office of the County Recorder of San Diego County as 613541 on December 9,1996. ~~~ Predisent File No. 1996- -7 cc: T. Kato, CDC EXHIBIT “A” DESCRIPTION OF SUBJECT PROPERTY 7220 Avenida Encinas Suite 204 Caxlsbad, California 92009 619-931-7700 Fax: 619-931-8680 Civil Engineering Planning Processing Surveying EXHIBIT B 1738 UNIT TYPE MAXIMUM MAXIMUM ELIGIBLE AFFORDABLE INCOME PURCHASE PRICE 3 Bedroom $ 118,783 $41,750 2 Bedroom $ 99,270 $35,425 * Based on the income of a low-income householdfor San Diego County as published by the Department of Housing and Urban Development, assuming household sizes of 3.5 persons for a 2-Bedroom Unit and 5.5 for a 3-Bedroom Unit. Actual affordable purchase prices will vary based on actual household income. SAMBLAGREE 2 11107196 I Anita 13 ” . ,,. ‘. EXHIBIT C ILLUSTRATIVE EXAMPLE OF PURCHASE * 1. Market Purchase Price (Not Exceeding Fair Market Value) 2. Affordable Purchase Price (Assuming Maximum Price for 3-Bedroom Unit) 3. Eligible Buyer’s Sources of Funds for Affordable Purchase Price a. First-Mortgage Loan b. Down Payment and Closing Costs c. Total 4. Primary Affordability Subsidy Required (Equals 1 minus 2) $ 150,000 $ 115,000 $ 109,000 6,000 % 115,000 $ 35,000 (To be Carried Back by Developer and Assigned by Developer to City) 5. Sources of Primary Affordability Subsidy (To be Evidenced by Single Promissory Note and Secured by City Second Mortgage) a. Direct City Subsidy Loan $ 10,800 b. Developer’s Carryback 24,200 c. Total Primary Affordability Subsidy $ 35,000 * This example uses$gures which are for illustrative purposes only. SAMBLAGREE 2 11/07/96 I Anita 14