HomeMy WebLinkAbout2004-01-20; City Council; 17470; Affordable Housing agreementAB# 17,470
MTG. 1/20/04
DEPT. H/RED
- TITLE: APPROVAL OF AN AFFORDABLE HOUSING
AGREEMENT TO ALLOW AN ALTERNATIVE TO THE
CONSTRUCTION OF NEW INCLUSIONARY HOUSING UNITS
TO SATISFY THE INCLUSIONARY HOUSING REQUIREMENT
FOR THE FARBER JEFFERSON STREET CONDOMINIUMS
DEPT.H
CITY
CITY
RECOMMENDED ACTION:
ADOPT Resolution No. 2004- 024 , APPROVING an Affordable Housing Agreement and
related loan documents to allow two off-site existing housing units to be made affordable to
satisfy the lnclusionary Housing requirement for the Farber Jefferson Street Condominiums
located at 1100 Las Flores Drive.
ITEM EXPLANATION
The Farber Jefferson Street Condominiums are an 1 l-unit project located at 1100 Las Flores
Road, at the northeast corner of Jefferson Street and Las Flores Road. Per the City’s
lnclusionary Housing Ordinance, the project has a requirement to provide two affordable
housing units. When the Planning Commission approved the project, the developer was
provided two options for satisfying the inclusionary housing requirement. The developer could
provide two low income affordable units within the market rate development or obtain approval
of a suitable off-site option from the Housing Commission and City Council. As an alternative
to providing two affordable units on site or participating in an off-site combined project, the
developer is proposing to purchase two existing housing units and to resale those units at an
affordable price to a low income household.
The lnclusionary Housing Ordinance states that whenever reasonably possible, new
inclusionary units should be built on the residential development project site. However, the
Ordinance allows the Council to approve an alternative to construction of new units when the
alternative supports specific housing policies and goals. Approval of the alternative shall be
based on findings that new construction would be infeasible or present unreasonable hardship
in light of such factors as project size, site constraints, market competition, price and product
type disparity, developer capability, and financial subsidies available. Per the Ordinance,
alternatives may include, but are not limited to, acquisition and rehabilitation of affordable
units, conversion of existing market units to affordable units, construction of special needs
housing projects or programs (shelters, transitional housing, etc.), and the construction of
second dwelling units.
The Farber project is proposing to purchase two condominium units in an existing development
located at 2362 Hosp Way. As stated in the developer’s letter (see Exhibit 4), the small size of
the new market rate development makes it financially difficult to integrate the affordable units
into the overall development. The purchase and resale of the units in the existing development
provides a more financially feasible alternative for the developer to satisfy the lnclusionary
Housing Ordinance. The alternate existing development is located within the same quadrant
(northwest) as required by the lnclusionary Housing Ordinance and is within 1% miles of the
new market rate development. The developer believes that the existing development has
locational advantages over the new development. Therefore, the developer has requested
approval of this alternative by the City Council.
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Staff Recommendation
The Affordable Housing Policy Staff Team reviewed the alternative proposal submitted by the
developer. The Team agreed with the developer that the existing condominium development
on Hosp Way, which was built in the early 1980s, does have several locational advantages
over the site of the market rate development on Las Flores Drive. The alternate site is located
adjacent to El Camino Real, approximately % mile south of Marron Road. Within YZ mile of the
site of the affordable units, there are several mass transit options (bus routes, transit center,
Highway 78) and three commercial centers that offer both employment and shopping
opportunities. Staff also agrees that the conversion of existing units to affordable units provides
a more financially feasible alternative for the developer to satisfy the lnclusionary Housing
requirement. Staff inspected the existing units and determined that their “useful life” will extend
for the appropriate period of time (30 years) to satisfy the inclusionary requirement. Staff,
therefore, recommended that the Housing Commission and City Council approve the proposed
affordable housing agreement to allow two existing housing units located at 2362 Hosp Way to
be made affordable as an alternative to satisfy the inclusionary housing requirement for the
Farber Jefferson Street Condominiums located at 1 100 Las Flores Drive.
Housinq Commission Recommendation
At their meeting on September 11, 2003, the Housing Commission reviewed the request from
the Developer. The Commission unanimously recommended approval of the proposal. The
Commission felt that the developer’s proposal provided a good alternative to the construction
of new units, was creative in its approach, and should be encouraged by the City.
Affordable Housing Agreement
Prior to the issuance of a final map or issuance of any building permits for the Farber
development, the developer is required to enter into an Affordable Housing Agreement with the
City which binds the developer to the specifics of the affordable housing project. The
Agreement will require the inclusionary units to be sold at a price that is affordable to a low
income household earning 80% or less of the San Diego County Area Median Income (AMI).
It is requested that the Affordable Housing Agreement, attached as Exhibit 2, be approved by
the Council in substantially the form presented and subject to final approval by the City
Attorney.
Loan Documents
Because the units will be sold to a low income household, the conditions of resale and the
developer subsidy must be recorded as a silent second against the property. The borrower
promissory note, deed of trust and disclosure statement related to this transaction are attached
as Exhibit 3 for the City Council’s review and approval. The buyer of the affordable unit will be
required to enter into these agreements at the time of the purchase to ensure that the
affordability requirements for the project are maintained. The loan documents state if the
property is re-sold within 15 years of the original purchase, the property must be resold to a
subsequent low income household at a price which is affordable to a low income household
earning 80% or less of the AMI. The documents also allow that if the property is sold after 15
years of the initial purchase, the property may be sold at market price, and the City will
recapture the initial developer subsidy (provided entirely by the developer) plus a share of any z
appreciation. It is requested that the Council approve these documents in substantially the
form presented and subject to final approval by the City Attorney.
ENVIRONMENTAL REVIEW
The Planning Commission approved a Mitigated Negative Declaration for the Site ,
Development Plan (SDP 02-14) on January 15, 2003. No further environmental review is
required as part of the approval of the subject alternative to satisfy the City’s lnclusionary
Housing Ordinance.
FISCAL IMPACT
The Developer is not requesting any financial assistance for this project. However, as part of
the sale of the affordable units, the developer will provide a subsidy to the buyer to make the
units affordable to lower income households. The subsidy will be assigned to the City and a
silent second recorded against the property. The subsidy, plus a percentage share of
contingent interest based on appreciation, will be repaid to the City at the time the unit is sold
to a non-low income household, which shall be no less than 15 years after the initial sale of the
property .
EXHl BITS
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6.
City Council Resolution No. 2004 - 024 , to approve an affordable housing
agreement to allow the inclusionary housing alternative proposed for the Farber Jefferson
Condominium Project.
Affordable Housing Agreement.
Borrower Promissory Note, Deed of Trust and Disclosure Statement.
Developer Letter and Feasibility Worksheet requesting approval of an alternative to satisfy
the City’s lnclusionary Housing requirements.
Housing Commission Staff Report dated September 11, 2003.
Draft Housing Commission Minutes of September 11, 2003.
DEPARTMENT CONTACT: Craig Ruiz, (760) 434-281 7, cruiz@ci.carlsbad.ca.us
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CITY COUNCIL RESOLUTION NO. 2004-024
THAT THE CITY COUNCIL APPROVE AN AFFORDABLE HOUSING AGREEMENT
AND RELATED LOAN DOCUMENTS TO ALLOW TWO OFF-SITE EXISTING
HOUSING UNITS TO BE MADE AFFORDABLE AS AN ALTERNATIVE TO
SATISFY THE INCLUSIONARY HOUSING REQUIREMENT FOR THE FARBER
JEFFERSON STREET CONDOMINIUMS LOCATED AT 1100 LAS FLORES DRIVE.
APPLICANT: FARBER JEFFERSON STREET CONDOMINIUMS
CASE NUMBER: SDP 02- 14
WHEREAS, on January 15, 2003, the Planning Commission approved the Farber
Jefferson Street Condominiums to allow for the development of an 11 unit condominium project
at 1100 Las Flores Drive which includes a requirement to provide two housing units affordable
to low income households per the City of Carlsbad’s Inclusionary Housing Ordinance; and
WHEREAS, the developer of the Farber Jefferson Street Condominiums has proposed to
meet the project’s Inclusionary Housing Ordinance requirement with an alternative solution
which would result in the developer’s purchase of two off-site housing units in an existing
condominium development and the resale of those units at an affordable price to a low income
household; and
WHEREAS, the Inclusionary Housing Ordinance allows, at the discretion of the City
Council, an alternative to the construction of new inclusionary housing units when the proposed
alternative supports specific housing policies and goals and a determination is made that the new
construction would be infeasible or present unreasonable hardship; and
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CC Resolution No. 2004-024
Page 2
WHEREAS, the proposed alternative offers a more financially feasible solution to
satisfy the City’s Inclusionary Housing requirements and the existing development at 2362 Hosp
Way has locational advantages over the market rate development at 1100 Las Flores Drive which
include closer proximity to more mass transit, employment and shopping opportunities; and
WHEREAS, based upon staff‘s determination of the existing development’s financial
feasibility and locational advantages, the proposed alternative has demonstrated that the goals of
the Inclusionary Housing Ordinance and the City’s Housing Element would be better served by
allowing the inclusionary units associated with the Farber Jefferson Street Condominiums to be
provided at an alternative site located at 2362 Hosp Way; and
WHEREAS, the Housing Commission did, on the llth day of September, 2003, hold a
public meeting to consider the developer’s request to approve an affordable housing agreement
to allow two off-site existing housing units to be purchased and resold at an affordable price as
an alternative to satisfy the inclusionary housing requirement for the Farber Jefferson Street
Condominiums located at 1100 Las Flores Drive; and
WHEREAS, upon hearing and considering all testimony, if any, of all persons desiring
to be heard, said Housing Commission considered all factors relating to the developer’s proposal
and recommended approval of the proposal to the City Council; and
WHEREAS, at their sole discretion, the City Council may determine that the proposed
alternative to the construction of new inclusionary units is acceptable based upon the
determination that the construction of on-site inclusionary housing units is infeasible or presents
an unreasonable hardship in light of such factors as project size, site constraints, market
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CC Resolution No. 2004-024
Page 3
competition, price and product type disparity, developer capability, and financial subsidies
available; and
WHEREAS, the City Council did hold a public meeting to consider the developer’s
request to approve an affordable housing agreement to allow two off-site existing housing units
to be purchased and resold at an affordable price as an alternative to satisfy the inclusionary
housing requirement for the Farber Jefferson Street Condominiums located at 1 100 Las Flores
Drive; and
WHEREAS, upon hearing and considering all testimony, if any, of all persons desiring
to be heard, said City Council considered all factors relating to the proposed inclusionary
housing alternative.
NOW, THEREFORE, BE IT HEREBY RESOLVED that the City Council of the City
of Carlsbad, California, does hereby find as follows:
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The above recitations are true and correct.
The developer proposal to allow two off-site existing housing units to be
purchased in an existing condominium development located at 2362 Hosp Way
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and to resale the units to a low income household as an alternative to new
construction to satisfy the inclusionary housing requirement for the Farber
Jefferson Street Condominiums located at 1100 Las Flores Drive is consistent
with the goals and objectives and serves the priorities of the City of Carlsbad’s
Housing Element, Consolidated Plan, the Inclusionary Housing Ordinance, and
the Carlsbad General Plan.
As required by Section 21.85.07 of the Carlsbad Municipal Code, the City Council
hereby finds that the construction of new on-site inclusionary housing units within
the Farber development would be infeasible and present unreasonable hardship as
a result of the new development’s small project size (11 units), site constraints,
price and product type disparity for the new development, and the unavailability
of financial subsidies for for-sale products.
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4. That based on the information provided within the City Council staff report and
testimony presented during the public meeting of the City Council, the City Council
hereby approves an Affordable Housing Agreement and related loan documents, in
substantially the form presented and subject to final approval by the City Attorney, to
allow two off-site housing units in an existing condominium development at 2362
Hosp Way as an acceptable alternative to satisfy the Inclusionary Housing
requirement for the Farber Jefferson Street Condominiums located at 1100 Las Flores
Drive.
5. That the Community Development Director or his or her designee is authorized by
the City Council to execute all documents related to approval of the subject
alternative inclusionary housing proposal, including but not limited to an Affordable
Housing Agreement in substantially the form presented to the City Council and
subject to final approval by the City Attorney.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of
the City of Carlsbad, California, held on the 20th day of January 2004, by the
following vote, to wit:
AYES : Council Members Lewis, Finnila, Kulchin, Hall, Packard
NOES: None
ATTEST: ,P
I L& INE WOOD, City Clerk 1 (SEAL)
CC Resolution No. 2004-024
Page 4
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EXHIBIT 2
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
REK PROPERTY ("Agreement"), entered into as of the
by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as
the ("City"), and Farber Family Lirnited Trust (hereinafter referred to as the
("Developer"), is made with reEr.re=nce to me following:
day of 2003,
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") descried
in Attachment "A", which is attached hereto and incorporated herein by this reference.
B. Developer wishes to construct eleven (1 1) residential housing units for
sale at prevailing market prices ("Market Units") and two (2) residential housing units for sale at
affordable prices ("Affordable Units"). The City has approved Site Development Permit SDP
02-14, Carlsbad Tentative Tract Map CT 02-13, Condominium Permit CP 02-08, and Coastal
Development Permit CDP 02-32 for the proposed development (Development). The City issued
these approvals subject to certain Conditions of Approval, including a condition requiring the
Developer to enter into an Affordable Housing Agreement in which Developer agrees to provide
two (2) dwelling units affordable to lower-income households.
C. Developer is required by the Conditions of Approval to enter into an
Affordable Housing Agreement as required and with the content specified by the City's
Inclusionary Housing Ordinance, Carlsbad Municipal Code ('ICMC'') Chapter 21.85. This
Agreement is that Affordable Housing Agreement pursuant to Section 21.85.140 of CMC
Chapter 21.85, and shall be executed and recorded prior to the approval of any final map,
including Master Tentative Map, for the Subject Property.
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D. Developer is seeking to meet the requirements of the Inclusionary Housing
Ordinance for the Development by providing the two (2) affordable units in an off-site combined
inclusionary housing project as permitted by Section 21.85.80 of CMC Chapter 21.85.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Satisfaction o f A ffordable H ousing Obligation and Conditions of Apmoval. In
order to satisfl 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 two (2)
Affordable Units that shall be restricted and affordable to lower-income households. This
Agreement is an Affordable Housing Agreement pursuant to Section 21.85.140 of the Carlsbad
Municipal Code. Developer shall submit this Agreement to the City and the Agreement shall be
executed prior to the approval of the final map for the subject property.
2. Combined Inclusionary Housing Project. In order to satis@ the Conditions of
Approval and requirements of the City's Inclusionary Housing Ordinance, Carlsbad Municipal
Code Chapter 21.85, the Developer has elected to provide the two (2) Affordable Units in an off-
site C ombined I nclusionary Housing P roject 1 ocated at 2 362 H osp W ay # 234 and 2362 Hosp
Way #334, which are more further described in Attachment B. The units shall be sold at a price
that is restricted and affordable to lower-income households according to the Affordable
Subsidized Purchase Prices attached hereto and incorporated herein as Attachment D.
3. Terms Governing, Provision of Affordable Units.
3.1. Obligation to Provide Affordable Units.
3.1.1. Developer shall provide the two (2) Affordable Units in relation to
Market Units ("Market Units") on the Subject Property. The Affordable Multifamily Units shall
include one bedroom units in the numbers and with the square footage indicated in "Attachment
C" 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.
3.2 Schedule for Developing Affordable Units.
3.2.1. Prior to the approval o fa ny F inal M ap for the D evelopment: ( i)
this Agreement shall be duly executed and recorded; (ii) the developer of the Affordable Units
shall have received approval of a Redevelopment Permit for the Development.
3.2.2 Upon satisfying the applicable conditions stated in Sections 3.2.1,
all building permits for the Development can be released for a total of eleven (1 1) Market Units.
3.2.3. Prior to receiving the first Certificate of Occupancyfor the final
Market Unit, Developer shall sell the two off-site combined units described in Attachment B to
low income households as described in Section 3.3 below. Once the sales transaction of the off-
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site Combined Units is completed, the first Certificate of Occupancy may be obtained for the
Market Units.
3.3 Terms for Sale of Affordable Units.
3.3.1. The Schedule of Maximum Eligible Buyer Incomes and Affordable
Subsidized Purchase Prices (the "Schedule") attached hereto and incorporated herein as
Attachment D 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 and approved by the City's Housing and Redevelopment Director prior to the
marketing of the Affordable Units.
3.3.2. 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), or if there is no comparable unit, then the
market Purchase Price shall be at the value established by an appraiser approved by the City;
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, 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.
3.4 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 fifteen years after the initial purchase of an
Affordable Unit, for-sale units may b e s old at a market price to other than targeted 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 mount 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 mortgage financing programs including secondary market
requirements.
4. City Approval of Documents.
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4.1. 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.
4.1.1. 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.
4.1.2. 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.
4.1.3. Purchase and Sale Agreements for sale of the Affordable Units
shall be prepared by the Developer.
4.1.4. City Second Mortgage promissory note, deed of trust, and
borrower disclosure form shall be provided by the City, substantially in the form attached hereto
respectively as Exhibits , , and respectively.
4.2 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.
5. Mortgage Credit Certificate Promam. 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 that 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 approved by the Housing and Redevelopment
Director. Developer shall provide the City with other reports as reasonably required by the City
to veri@ compliance with this Agreement.
7. 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 c ommence to cure such d efault 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 35 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
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to it with respect to the Developer's failure to satis@ 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.
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. Release of Subiect Property From Agreement. The covenants and conditions
herein contained shall apply to and bind the Developers 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
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 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 approval Site Development
Plan SDP 02-14,'shall be released from the burdens of this Agreement. The burdens of this
agreement shall remain in full force and effect and recorded against the property subject to the
approval Site Development Plan SDP 02-14 for the duration of this agreement.
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, fiom 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 Indemnitees, 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
11. Insurance Requirements: Developer shall obtain, at its expense, comprehensive
general liability insurance for the development of the Subject Property naming Indemnitees as
additional named insureds with aggregate limits of not less than five million dollars ($5,000,000)
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 fiom an
insurance company duly licensed to engage in the business of issuing such insurance in the State,
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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 Redevelopment Department
prior to the issuance of any building permit for the Subject Property..
12. 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 Redevelopment Department
Attn: Housing and Redevelopment Director
2965 Roosevelt Street, Suite B
Carlsbad, California 92008-2389
TO THE DEVELOPER:
Attn:
Any party may change the address to which notices are to be sent by
notifllng the other parties of the new address in the manner set forth above.
13.
the parties and no modification hereof shall be binding unless reduced to writing and signed by
the parties hereto.
Integrated Agreement. This Agreement constitutes the entire Agreement between
14. 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.
15. Recording of Ameement. The parties hereto shall cause this Agreement to be
recorded against the Subject Property in the Official Records of he County of San Diego.
16. 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.
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IN WITNESS WHEREOF, the parties hereto have causecl this agreement to
executed as of the day and year first above written.
DEVELOPERS CITY
City of Carlsbad, a Municipal corporation
By: By:
Sandra L. Holder
Community Development Director (Print Name & Title)
(Print Name & Title)
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, Secretary,
President, or
Vice-president
**Group B.
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation
corporate seal empowering the officer(s) signing to bind the corporation.
attach a resolution certified by the secretary or assistant secretary under
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By:
Assistant City Attorney
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ATTACHMENT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
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ATTACHMENT B
LEGAL DESCRIPTION OF OFF-SITE COMBINED PROJECT
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ORDER NO 40303873-40
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EXHIBIT "A"
PARCEL A:
AN UNDIVIDED 1/108TH INTEREST IN AND TO LOT 1 OF CARLSBAD TRACT NO. 81-41, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA. .-
EXCEPTING THEREFROM THE FOLLOWING:
(A) ALL UNITS AS SHOWN UPON THE GROVE PHASE I CONDOMINIUM PLAN (HEREINAFTER "CONDOMINIUM PLAN") RECORDED SEPTEMBER 21, 1983 AS FILE NO. 83-337701 AND RE- RECORDED DECEMBER 7, 1983 AS FILE NO. 83-444150 BOTH OF OFFICIAL RECORDS OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO.
(B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS BALCONY, PATIO, STORAGE, COVERED PARKING SPACE AND PARKING SPACE EXCLUSIVE USE AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE REFERRED TO.
PARCEL B:'
UNIT LU 234 AS SHOWN UPON THE CONDOMINIUM PLAN REFERRED TO
ABOVE.
PARCEL C:
EXCLUSIVE RIGHT TO USE, POSSESSION 'AND OCCUPANCY OF THOSE PORTIONS OF PARCEL A DESCRIBED ABOVE DESIGNATED AS B 234, CPS-234, P , 5-234, AND PS-234, AS APPURTENANT TO PARCELS A AND B ABOVE,-DESCRIBED.
PARCEL D:
-4-
0
ORDER NO 40303873-40
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, USE AND ENJOYMENT OVER THE COMMON AREA OF LOTS 2 AND 3 OF CARLSBAD TRACT NO. 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ON SEPTEMBER 19, 1983 WHICH EASEMENT IS APPURTENANT TO PARCELS A, B, AND C DESCRIBED ABOVE. THIS EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF SAID LOTS, RESPECTIVELY, UPON RECORDATION OF A DECLARATION OF ANNEXATION DECLARING SUCH LOTS, RESPECTIVELY, - TO BE SUBJECT TO THE . DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS TO WHICH REFERENCE IS HEREAFTER MADE OR A SEPARATE DECLARKTION OF COVENANTS, CONDITIONS AND RESTRICTIONS WHICH REQUIRES THE OWNERS OF SAID .LOTS, RESPECTIVELY, TO BE MEMBERS OF THE ASSOCIATION (AS DEFINED BELOW) ALL AS MORE FULLY SET FORTH IN THE DECLARATION TO WHICH REFERENCE LS HEREAFTER MADE. THE COMMON .AREA REFERRED
TO HEREIN AS TO EACH OF SAID LOTS SKALL BE SHOWN AND DESCRIBED ON THE CONDOMINIUM PJhN OR PLANS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA.
EXCEPTING THEREFROM ANY RESIDENTIAL BUILDINGS THEREON AND PORTION THEREOF WHICH-MAY BE DESIGNATED AS AN EXCLUSIVE USE AREA.
PA~CEL E:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER, ALONG,
ACROSS AND THROUGH THAT REAL PROPERTY DESCRIBED AS FOLLOWS:
A STRIP OF LAND 7.50 FEET, LYING WITHIN SAID LOT 2, THE
WESTERLY, NORTHERLY AND EASTERLY BOUNDARY OF SAID STRIP OF LAND BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE BOUNDARY LINE OF SAID LOT NORTH 30" 32' 30" EAST, 325.37 FEET; THENCE SOUTH 64' 47, 19" EAST, 56.45 FEET; THENCE SOUTH 25" 40, 47" EAST 219.40 FEET; THENCE SOUTH 67' 11' 43', EAST, 16.00 FEET; THENCE NORTH 57" 33' 00" EAST, 85.00 FEET.
ALSO THE SOUTHEASTERLY 75.00 FEET OF LOT 3.
SAID NON-EXCLUSIVE EASEMENT SHALL BE FOR THE BENEFIT OF THE , OWNERS OF LOT 1 OF CARLSBAD TRACT 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA. THEIR SUCCESSORS IN INTEREST, HEIRS AND ASSIGNS SAID EASEMENT SHALL BE APPURTENANT TO SAID LOT 1 AND SHALL RUN WITH THE LAND IN ACCORDANCE WITH THE COVENANTS, CONDITIONS
NOTE : SAID COVENANTS, CONDITIONS AND RECORDED SEPTEMBER 21, 1983 AS FILE OFFICIAL RECORDS.
AND RESTRICTIONS.
RESTRICTIONS WERE NO. 83-337702 OF
-5- 18
ORDER NO 40303874-40
EXH I B I T "A"
A CONDOMINIUM COMPRISED OF:
PARCEL A:
AN UNDIVIDED 1/108TH INTEREST IN AND TO LOT 1 OF CARLSBAD TMCT NO. 81-41, IN THE CITY OF CARLSBAD, COUNTY OF SA" DIEGO, 'STATE OF- CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 19, 1983.
EXCEPTING THEREFROM THE FOLLOWING:
(A) ALL UNITS AS SHOWN UPON THE GROVE PHASE 1 CONDOMINIUM
PLAN ("CONDOMINIUM PLAN") RECORDED SEPTEMBER 21, 1983 AS FILE/PAGE NO. 83-337701 OF OFFICIAL RECORDS OF THE COUNTY RECORDER OF COUNTY OF SAN DIEGO AND RE-RECORDED DECEMBER 7, 1983 AS FILE/PAGE NO. 83-444150 OF OFFICIAL RECORDS.
(B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS
DESIGNATED AS -BALCONY, PATIO, STORAGE, COVERED PARKING
SPACE AND PARKING SPACE EXCLUSIVE USE AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE REFERRED TO.
PARCEL B:
UNIT LU 334, AS SHOWN UPON THE CONDOMINIUM PLAN REFERRED TO
ABOVE.
PARCEL C:
EXCLUSIVE RIGHT TO USE, POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF PARCEL A DESCRIBED ABOVE DESIGNATED ON SAID
CONDOMINIUM PLAN AS EXCLUSIVE USE AREAS AS APPURTENANT TO
PARCELS A AND B ABOVE DESCRIBED.
-4-
ORDER NO 40303874-40
PARCEL D:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, USE AND ENJOYMENT OVER THE COMMON AREA OF LOTS 2 AND 3 OF CARLSBAD TRACT NO. 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF
CALIFORNIA, ON SEPTEMBER 19, 1983 WHICH EASEMENT IS APPURTENANT TO PARCELS A, B, AND C DESCRIBED ABOVE. THIS
EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF SAID LOTS, RESPECTIVELY, UPON RECORDATION OF A DECLARATION OF ANNEXATION DECLARING SUCH LOTS, RESPECTIVELY, TO BE SUBJECT TO THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO WHICH REFERENCE IS HEREAFTER MADE OR A SEPARATE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS WHICH REQUIRES THE OWNERS OF SAID LOTS, RESPECTIVELY, TO BE
MEMBERS OF THE ASSOCIATION, ALL AS MORE FULLY SET FORTH IN
COMMON AREA REFERRED TO HEREIN, AS TO EACH OF SAID LOTS SHALL BE SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN OR PLANS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA.
EXCEPTING THEREFROM ANY RESIDENTIAL BUILDINGS THEREON AND ANY PORTION THEREOF WHICH MAY BE DESIGNATED AS AN EXCLUSIVE USE AREA.
THE DECLARATION TO WHICH REFERENCE IS HEREAFTER MADE. THE
PARCEL E:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER, ALONG, ACROSS AND THROUGH THAT REAL PROPERTY DESCRIBED AS FOLLOWS:
A STRIP OF LAND 7.50 FEET LYING WITHIN SAID LOT 2, THE WESTERLY, NORTHERLY AND EASTERLY BOUNDARY OF SAID STRIP OF LAND BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE BOUNDARY LINE OF SAID LOT NORTH 30' 32' 30" EAST 325.37 FEET; THENCE SOUTH 64O 47' 19" EAST 56.45 FEET; THENCE SOUTH 25' 40' 47" EAST 219.40 FEET; THENCE SOUTH 67'
11' 43" EAST 16.00 FEET; THENCE NORTH 57' 33' 00" EAST 85.00 FEET.
ALSO THE SOUTHEASTERLY 7.50 FEET OF LOT 3.
SAID NON-EXCLUSIVE EASEMENT SHALL BE FOR THE BENEFIT OF THE OWNERS OF LOT 1 OF CARLSBAD TRACT 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, THEIR SUCCESSORS IN INTEREST, HEIRS AND ASSIGNS WITH SAID EASEMENT SHALL BE APPURTENANT TO SAID LOT 1 AND SHALL RUN WITH THE LAND IN ACCORDANCE WITH THE COVENANTS, CONDITIONS AND RESTRICTIONS.
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ATTACHMENT C
LOCATION, SIZE, AND BEDROOM COUNT
OF AFFORDABLE UNITS
10 25 .
ATTACHMENT D
SCHEDULE OF MAXIMUM ELIGIBLE BUYER INCOMES
AND AFFORDABLE SUBSIDIZED PURCHASE PRICES
For-Sale Product
Affordable Housing Calculation
Maximum Selling Price
Example
As sump ti ons :
One Bedroom Unit: 5% of market appraised value for down payment; 1.5
person household @ 80% of AMI; 30% front end ratio; interest rate of 6.5%
Median Household Annual Income: $38,350
Maximum Monthly Payment: $ 959
Housing Costs:
Private Mortgage Insurance
Property Taxes
HOA Dues
Utility Allowance
Principal & Interest
Total Monthly Payment
$ 40
$ 175
$ 140
$ 38
$ 556
$ 959
1'' Trust Deed Loan
Down Payment
Maximum Purchase Price
$ 90,000
$ 8,750
$ 98,750
Appraised Value of Home: $ 175,000
Max. Purchase Price (for 80% AMI): 98,750
Gap Financing Required: ($76,250)
Builder Silent Second $76,250 (43.6% of
appraised value)
27
c
e ATTACHMENT 5 0 -
FARBER JEFFERSON STREET
CONDO
CT 02-1 3/CP 02-08/CDP 02-32/SDP 02-1 4
2%
EXHIBIT 3
NOTICE TO BORROWER:
THIS NOTE CONTAINS PROVISIONS RESTRICTING ASSUMPTION
Farber Jefferson Street Condominiums
PROMISSORY NOTE
Secured by Deed of Trust
Carlsbad, California
Y 200-
FOR VALUE RECEIVED, the undersigned
(the "Borrower") promises to pay to the City of Carlsbad, a
municipal corporation (the "City"), or order, at the Housing and Redevelopment Department,
2965 Roosevelt Street, Suite B, Carlsbad, California 92008, or such other place as the City may
designate in writing, the principal sum of $ , plus Contingent Interest calculated
pursuant to Section 4 below.
1. Purpose of Loan. Borrower is purchasing the Residence located at
in the City of Carlsbad. This Note evidences a loan made by the Seller of
the Residence (the "Seller") to the Borrower, utilizing subsidy funds provided by the Seller, and
assigned by the Seller to the City (the "Seller Loan"). The Seller Loan is in the amount
determined by the City to be necessary for the Borrower to afford to purchase the Residence
making a reasonable downpayment and using conventional first mortgage financing for the
balance of the purchase price not financed by the Seller Loan. The Seller made the Seller Loan
to the Borrower and assigned the Seller Loan to the City in fulfillment of certain inclusionary
housing obligations pursuant to City of Carlsbad Municipal Code Chapter 21.85 and an
Affordable Housing Agreement between the Seller and the City dated
and recorded as Document No. in the Official Records of San Diego County.
2. Definitions. The terms set forth in this Section shall have the following
a.
meanings in this Note.
subtracting the total original purchase price of the Residence paid by the Borrower, which was
Dollars ($ ), from one of the following amounts, as
applicable: (i) in the event of a sale of the Residence, the amount received by the Borrower as
the sale price of the Residence, as certified by the Borrower pursuant to Section 13 below; or (ii)
in the event of a prepayment of this Note, a Transfer other than sale of the Residence, or in the
event of a default, the Fair Market Value of the Residence; or (iii) in the event a creditor acquires
title to the Residence through a deed in lieu of foreclosure, a trustee's deed upon sale, or
otherwise, the amount paid for the Residence at a creditor's sale of the Residence.
"Appreciation Amount" shall mean the amount calculated by
I
b. "Contingent Interest" shall mean the percentage of the
Appreciation Amount set out in Section 4.
C. "Fair Market Value" shall be determined by a real estate appraisal
made by an independent residential appraiser designated by the City. If possible, the appraisal
shall be based upon the sales prices of comparable properties sold in the market area during the
preceding three-month period. The cost of the appraisal shall be paid by the Borrower. Nothing
in this subparagraph shall preclude the Borrower and the City fi-om establishing the Fair Market
Value of the Residence by mutual agreement in lieu of an appraisal.
d. "First Mortgage" shall mean the promissory note and deed of trust
evidencing and securing the first mortgage loan for the Residence.
e. "Residence" shall mean the housing unit and land encumbered by
the deed of trust executed in connection with this Note.
f. "Transfer" shall mean any sale, assignment or transfer, voluntary or
involuntary, of any interest in the Residence, including, but not limited to, a fee simple interest, a
joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, or an interest
evidenced by a land contract by which possession of the Residence is transferred and the
Borrower retains title. Any Transfer without satisfaction of the provisions of this Note is
prohibited. A transfer: (i) to an existing spouse who is also an obligor under the Note; (ii) by a
Borrower to a spouse where the spouse becomes the co-owner of the Residence; (iii) between
spouses as part of a marriage dissolution proceeding; (iv) to an existing spouse or child of the
Borrower by devise or inheritance following the death of the Borrower; (v) by the Borrower into
an inter vivos trust in which the Borrower is the beneficiary; or (vi) by deed of trust or imposition
of a lien subordinate to the Deed of Trust, shall not be considered a Transfer for the purposes of
this Note; provided, however, that the Borrower shall continue to occupy the Residence as his or
her principal place of residence and the Borrower shall provide written notice of such transfer to
the City pursuant to Section 14 below.
3. Security. This Note is secured by a second deed of trust dated the same
date as this Note (the "Deed of Trust").
4. Contingent Interest. The Borrower shall pay contingent interest equal to
percent ( %) ("Contingent Interest Percentage Amount") [seller to insert
appropriate percentage which shall in no event exceed (SO%)] of the Appreciation Amount
(the "Contingent Interest"). No interest other than Contingent Interest shall be due hereunder.
The Contingent Interest shall be paid to the City at the time set forth in Section 7 below.
Borrower acknowledges that the Contingent Interest Percentage Amount is equal to the Seller
Loan principal amount as a percentage of the total purchase price of the Residence paid by the
Borrower at the time of purchase, multiplied by seventy-five one hundredths (.75). Borrower
acknowledges that this calculation of the percentage of the Appreciation Amount due to the City
as Contingent Interest includes a twenty-five percent (25%) discount to Borrower to account for
any capital improvements Borrower may make to the Residence.
2
5. Term. The Term of this Note shall mean the period commencing on the
date of this Note and expiring on the date thirty (30) years thereafter.
6. Owner-Occupancy Required; Representations Regarding Income.
a. The Borrower is required to occupy the Residence as his or her
principal place of residence, and failure by the Borrower to comply with this requirement shall be
a default under this Note. The Borrower shall be considered as occupying the Residence if the
Borrower is living in the Residence for at least ten (1 0) months out of each calendar year. The
Borrower shall provide an annual written certification to the City that the Borrower is occupying
the Residence as his or her principal place of residence. The Borrower shall not lease the
Residence to another party. Any lease of the Residence shall be a default under this Note.
b. Borrower hereby certifies that all income information previously
submitted to the Seller andor the City is true and correct. Misrepresentation by Borrower of
income information provided to the Seller and/or the City shall be a default under this Note.
7. Resale Restriction The City and the Developer have provided financial
assistance to the developer to assist in making the Farber Jefferson Street Condominiums
affordable. Your new home is affordable to you because the City and the developer are providing
you with second mortgage financing through the Farber Jefferson Street Condominiums
Homebuyer Assistance Program (the "Program") so that you will be able to buy your home. &
such, there are restrictions in your Deed of Trust and Promissory Note that limit your
ability to sell your home, the sales price at which you are able to sell your home, and of the
amount of income the purchaser of the home may earn in a year.
Beginning on the date you purchase your home (close escrow) and for fifteen years
thereafter, you may only sell your home to a qualified lower income household. A lower income
household is one in witch the households gross annual income does not exceed 80% of the
median income for San Diego County, adjusted for assumed household size. Further, the sales
price can increase above the original sales price by an amount that is equal to the increase annual
increase in the San Diego Area Median Income. Median income' figures shall be those published
annually by the United States Department of Housing and Urban Development. In the event that
such income determinations are no longer published, or are not updated for a period of at least
eighteen (1 8) months, the City shall provide the Owner with other income determinations which
are reasonably similar with respect to methods of calculation to those previously published by the
Department of Housing and Urban Development. Assumed household size figures shall be
provided by the City. Fifteen (15) business days prior to the completion of the sales transaction
(close of escrow), the seller must provide documentation to the satisfaction of the City that the
new home buyer is in fact a lower income household and the sales price is affordable to that
lower income household.
Beginning sixteen (16) years after the initial purchase of the home, the home units may be
sold at a market price to non low 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. The repayment process of the City loan is explained below.
3 31
7. Repayment.
a. The total amount of the principal and any Contingent Interest owed
under this Note shall immediately become due and payable (i) in the event of a default by the
Borrower under this Note, the Deed of Trust, or the First Mortgage, (ii) on the date Transfer is
made whether voluntarily, involuntarily, or by operation of law and whether by deed, contract of
sale, gift, devise, bequest or otherwise, (iii) in the event Borrower ceases to occupy the Residence
as his or her principal place of residence; or (iv) at the end of the Term of this Note as described
above in Section 5. Failure to declare such amounts due shall not constitute a waiver on the part
of the City to declare them due in the event of a subsequent Transfer.
8. Late Payment Fees. If any payment due hereunder is not paid within five
(5) days fiom the date it is due, Borrower shall pay a reasonable late or collection charge equal to
five percent (5%) of the amount so unpaid. The City and Borrower agree that the actual damages
and costs sustained by the City due to the failure to make timely payments would be extremely
difficult to measure and that the charges specified in this paragraph represent a reasonable
estimate by Borrower and the City of a fair average compensation for such damages and costs.
Such charges shall be paid by Borrower without prejudice to the right of the City to collect any
other amounts provided to be paid under this Note or the Deed of Trust or, with respect to late
payments, to declare a default.
9. Prepayments. The Borrower may prepay all or part of the balance due
under this Note including principal and Contingent Interest. In the event the entire amount of
principal due under this Note is prepaid, all Contingent Interest, calculated as of the date of
prepayment, shall also be due at the time of prepayment.
10. No Assumption of Note. The Borrower acknowledges that this Note is
given in connection with the purchase of property (the "Residence") as part of a program of the
City to assist in the purchase of homes by lower income persons. Consequently, this Note may
be assumed or will be due in full upon Transfer per the requirements of Section 7.
1 1. Maintenance; Taxes; Insurance. Borrower shall maintain the Residence in
good repair and in a neat, clean and orderly condition. Borrower shall promptly pay all property
taxes due on the Residence prior to any delinquency and shall comply with the insurance
requirements set forth in the Deed of Trust.
12. Refinance of First Mortgage Loan. The outstanding principal and interest
on this Note shall not be due upon prepayment and refinance of the First Mortgage, and the Deed
of Trust shall be subordinated to the refinanced loan, provided that (i) such refinancing is
approved by the City, (ii) the amount refinanced does not exceed the outstanding principal
balance of the First Mortgage at the time of refinance plus reasonable costs of refinance, and (iii)
the refinance does not result in higher monthly payments on the First Mortgage Loan than were
due prior to the refinance.
4
13. Certification of Purchase Price on Transfer. Upon any sale of the
Residence, the Borrower shall submit to the City at least fifteen (1 5) days prior to the close of
escrow, a copy of the sales contract and a written declaration, under penalty of perjury, from the
Borrower and the proposed purchaser in a form acceptable to the City stating the gross sales price
of the Residence. The certification shall also provide that the proposed purchaser or any other
party has not paid and will not pay to the Borrower, and the Borrower has not received and will
not receive from the proposed purchaser or any other party, money or other consideration,
including personal property, in addition to what is set forth in the sales contract.
14. Notice to Citv of Transfers. Borrower shall provide the City with written
notice of any Transfer of the Residence or of any interest in the Residence (including, but not
limited to, encumbrance of the Residence with a junior deed of trust or transfer of the Residence
to a spouse or trust). Borrower shall provide this notice to the City no later than fifteen (15) days
before the Transfer occurs, except where the Transfer is by devise or inheritance after death of
the Borrower in which event notice shall be provided within thirty (30) days of the date of
Transfer.
15. Default.
a. The Borrower shall be in default under this Note if he or she is in
default under the First Mortgage following the expiration of First Mortgage cure periods, or if,
after the notice and cure period provided by the City to the Borrower pursuant to the notice and
cure provisions of the Deed of Trust, the Borrower (i) fails to pay any money when due under
this Note; (ii) breaches any representation or covenant made in this Note in any material respect;
or (iii) breaches any provision of the Deed of Trust.
b. Upon the Borrower's breach of any covenant or agreement of the
Borrower in this Note or the Deed of Trust, including, but not limited to, the covenants to pay,
when due, any sums secured by the Deed of Trust, the City, prior to acceleration, will send, in the
manner set forth in Section 20 notice to the Borrower specifjmg: (1) the breach; (2) if the breach
is curable, the action required to cure such breach; (3) a date, not less than thirty (30) days from
the date the notice is effective, by which such breach, if curable, is to be cured and (4) if the
breach is curable, that failure to cure such breach on or before the date specified in the notice
may result in acceleration of the sums secured by the Deed of Trust and foreclosure by the City.
The notice will also inform the Borrower of the Borrower's right to reinstate after acceleration
and the right to bring a court action to assert the nonexistence of default or any other defense of
the Borrower to acceleration and sale.
16. Acceleration. -Upon the occurrence of a default under this Note, the Deed
of Trust, or the First Mortgage, the City shall have the right to declare the fbll amount of the
principal along with any Contingent Interest under this Note immediately due and payable. Any
failure by the City to pursue its legal and equitable remedies upon default shall not constitute a
waiver of the City's right to declare a default and exercise all of its rights under this Note and the
Deed of Trust. Nor shall acceptance by the City of any payment provided for herein constitute a
waiver of the City's right to require prompt payment of any remaining principal and interest
owed.
5
17. No Offset. The Borrower hereby waives any rights of offset it now has or
may later have against the City, its successors and assigns, and agrees to make the payments
called for in this Note in accordance with the terms of this Note.
18. Waiver; Attorney Fees and Costs. The Borrower and any endorsers or
guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns,
respectively, severally waive diligence, presentment, protest, and demand, and notice of protest,
dishonor and non-payment of this Note, and expressly waive any rights to be released by reason
of any extension of time or change in terms of payment, or change, alteration or release of any
security given for the payments hereof, and expressly waive the right to plead any and all statutes
of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly
and severally agree to pay all costs of collection when incurred, including reasonable attorney
fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs
and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys' fees
in such action.
19. No Waiver by the City. No waiver of any breach, default or failure of
condition under the terms of this Note shall be implied from any failure of the City to take action
with respect to such breach, default or failure or from any previous waiver of any similar or
unrelated breach, default or failure.
20. Notices. All notices required in this Note shall be sent by certified mail,
return receipt requested, or express delivery service with a delivery receipt, or personally
delivered with a delivery receipt obtained and shall be deemed to be effective as of the date
shown on the delivery receipt as the date of delivery, the date delivery was refused, or the date
the notice was returned as undeliverable as follows:
To the Borrower:
At the address of the Residence.
To the City:
City of Carlsbad
Housing and Redevelopment Department
Attention: Housing and Redevelopment Director
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this Section 20.
2 1. Joint and Several Obligations. This Note is the joint and several
obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and
their successors and assigns.
6
22. Nonliabilitv for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of
borrower and lender, and that the City does not undertake or assume any responsibility for or
duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of
the quality, adequacy or suitability of the Residence or any other matter. The City owes no duty
of care to protect Borrower against negligent, faulty, inadequate or defective building or
construction or any condition of the Residence and Borrower agrees that neither Borrower, or
Borrower's heirs, successors or assigns shall ever claim, have or assert any right or action against
the City for any loss, damage or other matter arising out of or resulting from any condition of the
Residence and will hold the City harmless from any liability, loss or damage for these things.
23. Indemnity. Borrower agrees to defend, indemnify, and hold the City
harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable
attorneys fees that the City may incur as a direct or indirect consequence of:
a. the making of the loan to Borrower;
b. Borrower's failure to perform any obligations as and when required
by the Note or the Deed of Trust; or
c. the failure at any time of any of Borrower's representations to the
Seller or the City to be true and correct.
24. Termination of Restrictions. Any legal restrictions on conveyance of the
Residence (as defined in 24 CFR 203.41 (a)(3)(u)) included in this Note shall terminate upon
transfer of the Residence by foreclosure, deed in lieu of foreclosure, or assignment to the
Secretary of the United States Department of Housing and Urban Development.
25. Controlling Law. This Note shall be construed in accordance with and be
governed by the laws of the State of California.
26. Assignment by City. The City may assign its right to receive the proceeds
under this Note to any person and upon notice to the Borrower by the City all payments shall be
made to the assignee.
27. Invalid Provisions. If any one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the remaining provisions contained in
this Note, and this Note shall be construed as if such invalid, illegal or unenforceable provision
had never been contained in this Note.
28. Entire ADeement. This Note (along with the Deed of Trust) sets forth the
entire understanding and agreement of the City and the Borrower and any amendment, alteration
or interpretation of this Note must be in writing signed by both the City and the Borrower.
7 35
Borrower
(Print Name)
Borrower
- ~ ~~ (Print Name)
8
PROMISSORY NOTE
ADMINISTRATIVE COVER SHEET
(Remove Upon Completion)
BLANK LINES: CHECKLIST
Amount of City Loan, p. 1, upper left
Date of Document, p. 1 , upper right
Borrower's Name, p. 1, first paragraph
Amount of City Loan, p. 1, first paragraph
Street Address of Residence, p. 1, Section 1
Original Purchase Price of Residence, p. 1,
Section 2(a)
Contingent Interest Percent, p. 2, Section 4
Signatures, p. 7
37
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attention: City Clerk
No fee for recording pursuant to
n 37'383
(Space above for Recorder's Use)
NOTE TO BORROWER:
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING ASSUMPTIONS -
ANn SECT JRTTY ACTREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of
this day of , 2003, among
("Borrower") as trustor, and
the the City of Carlsbad, a municipal corporation (the "City"), as beneficiary.
("Trustee"), and
The Borrower, in consideration of the promises herein recited and the trust herein created,
irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of sale, the
property located in the City of Carlsbad, State of California, described in the attached Exhihit
!!A!! (the "Property").
TOGETHER with all the improvements now or hereafter erected on the property, and all
easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of
which, including replacements and additions thereto, shall be deemed to be and remain a part of
the property covered by this Deed of Trust; and
TOGETHER with all articles of personal property or fixtures now or hereafter attached to
or used in and about the building or buildings now erected or hereafter to be erected on the
Property which are necessary to the complete and comfortable use and occupancy of such
building or buildings for the purposes for which they were or are to be erected, including all other
goods and chattels and personal property as are ever used or furnished in operating a building, or
the activities conducted therein, similar to the one herein described and referred to, and all
renewals or replacements thereof or articles in substitution therefore, whether or not the same
are, or shall be attached to said building or buildings in any manner; and all of the foregoing,
together with the Property, is herein referred to as the "Security";
1
To have and to hold the Security together with acquittances to the Trustee, its successors
and assigns forever;
TO SECURE to the City the repayment of the sums evidenced by a promissory note
executed by the Borrower to the City dated , 2003, in the amount of
Dollars ($ ) (the "Note");
TO SECURE to the City the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of the Borrower herein contained; and
TO SECURE the performance of any obligations of Borrower in any other agreements
with respect to the financing of the Property or the Security the failure of which would adversely
affect Beneficiary, whether or not Beneficiary is a party to such agreements.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. rrnwer's Fstate. That the Borrower is lafilly seized of the estate hereby
conveyed and has the right to grant and convey the Security, that other than this Deed of Trust,
the Security is encumbered only by that deed of trust executed by the Borrower in connection
with a loan made to the Borrower by
(the "First Lender"), dated
Lender, and recorded in the County of San Diego on ,2003, and as Document No.
(the "First Lender Deed of Trust"), securing a promissory note executed
by the Borrower in favor of the First Lender ("First Lender Note"), to assist in the purchase of the
Property. The Borrower agrees to warrant and defend generally the title to the Security against
all claims and demands, subject to any declarations, easements or restrictions listed in a schedule
of exceptions to coverage in any title insurance policy insuring the City's interest in the Security.
(As used in this Deed of Trust, the term "First Lender" shall include all successors and assigns of
the First Lender.)
or its successors and assigns , 2003, executed by the Borrower in favor of First
2. v. The Borrower will promptly repay, when due, the principal
and interest required by the Note. The Note contains the following provisions concerning
repayment of the loan under certain conditions:
3. nf Nde. The Borrower acknowledges that this
Note is given in connection with the purchase of property (the "Residence") as part of a program
of the City to assist in the purchase of homes by lower income persons. Consequently, this Note
may be transferred under certain circumstances as permitted by the Note or due in full upon a
Transfer as defined in the Note.
3.
and agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender
loan documents.
-. The Borrower will observe and perform all of the covenants
4. w. The Borrower shall occupy the Property as his or
her principal place of residence. The Borrower shall be considered as occupying the Property if
2
the Borrower is living in the unit for at least ten (10) months out of each calendar year. The
Borrower shall provide an annual written certification to the City that the Borrower is occupying
the Property as his or her principal place of residence.
5. Clharpes.. The Borrower will pay all taxes, assessments and other charges,
fines and impositions attributable to the Security which may attain a priority senior to this Deed
of Trust, by the Borrower making any payment, when due, directly to the payee thereof. The
Borrower will promptly furnish to the City all notices of amounts due under this paragraph, and
in the event the Borrower makes payment directly, the Borrower will promptly discharge any lien
which has priority senior to this Deed of Trust; provided, that the Borrower will not be required
to discharge the lien of the First Lender Deed of Trust or any other lien described in this
paragraph so long as the Borrower will agree in writing to the payment of the obligation secured
by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or
defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement
of the lien or forfeiture of the Security or any part thereof.
6. Hazard. The Borrower will keep the Security insured by a standard fire
and extended coverage insurance policy in at least an amount equal to the replacement cost of the
Security, but in no event less than the amount necessary to prevent the Borrower from becoming
a co-insurer under the terms of the policy.
The insurance carrier providing this insurance shall be licensed to do business in the State
of California and be chosen by the Borrower subject to approval by the City; provided, that such
approval will not be withheld if the insurer is also approved by the First Lender, the Federal
Home Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of
Housing and Urban Development, the United States Department of Veterans Affairs, or
successors thereto.
All insurance policies and renewals thereof will be in a form acceptable to the City and
will include a standard mortgagee clause with standard lender's endorsement in favor of the
holder of the First Lender Note and the City as their interests may appear and in a form
acceptable to the City. The City shall have the right to hold, or cause its designated agent to
hold, the policies and renewals thereof, and the Borrower shall promptly hish to the City, or its
designated agent, the original insurance policies or certificates of insurance, all renewal notices
and all receipts of paid premiums. In the event of loss, the Borrower will give prompt notice to
the insurance carrier and the City or its designated agent. The City, or its designated agent, may
make proof of loss if not made promptly by the Borrower. The City shall receive thirty days
advance notice of cancellation of any insurance policies required under this section.
Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject
to the rights of the First Lender, will be applied to restoration or repair of the Security damaged,
provided such restoration or repair is economically feasible and the Security of this Deed of Trust
is not thereby impaired. If such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, the insurance proceeds will be used, subject to
the rights of the First Lender, to repay the Note and all sums secured by this Deed of Trust, with
the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower, or if the
Borrower fails to respond to the City, or its designated agent, within thirty (30) days from the
3
date notice is mailed by either of them to the Borrower that the insurance carrier offers to settle a
claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights
of the First Lender, to collect and apply the insurance proceeds at the City's option either to
restoration or repair of the Security or to repay the Note and all sums secured by this Deed of
Trust.
If the Security is acquired by the City, all right, title and interest of the Borrower in and to
any insurance policy and in and to the proceeds thereof resulting fiom damage to the Security
prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed
of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender.
7. c. The Borrower will keep the Security
in good repair and will not commit waste or permit impairment or deterioration of the Security.
8. Prnt- City -1 s Secllrjtv. If the Borrower fails to perform the covenants
and agreements contained in this Deed of Trust, the First Lender Note, the First Lender Deed of
Trust, or if any action or proceeding is commenced which materially affects the City's interest in
the Security, including, but not limited to, default under the First Lender Deed of Trust, the First
Lender Note or any other deed of trust encumbering the Property, eminent domain, insolvency,
code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the
City, at the City's option, upon notice to the Borrower, may make such appearances, disburse
such sums and take such action as it determines necessary to protect the City's interest, including
but not limited to, disbursement of reasonable attorney's fees and entry upon the Security to make
repairs.
Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will
become an indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and
City agree in writing to other terms of payment, such amount will be payable upon notice fiom
the City to the Borrower requesting payment thereof, and will bear interest from the date of
disbursement at the lesser of (1) ten percent (10%) per annum or (2) the highest interest rate
permissible under applicable law. Nothing contained in this paragraph will require the City to
incur any expense or take any action hereunder.
9. Inspxhn. The City may make or cause to be made reasonable entries upon and
inspections of the Security; provided that the City will give the Borrower reasonable notice of
inspection.
10. hy the C-. Any forbearance by the City in exercising
any right or remedy will not be a waiver of the exercise of any such right or remedy. The
procurement of insurance or the payment of taxes or other liens or charges by the City will not be
a waiver of the City's right to accelerate the maturity of the indebtedness secured by this Deed of
Trust.
11. es Cile. All remedies provided in this Deed of Trust are distinct
and cumulative to any other right or remedy under this Deed of Trust or any other document, or
afforded by law or equity, and may be exercised concurrently, independently or successively.
4
12. v Dns Rd. The covenants and agreements herein contained
shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the
City and the Borrower subject to the provisions of this Deed of Trust.
. .. 13.
be joint and several.
-. All covenants and agreements of the Borrower shall
14. ~W~LE. Except for any notice required under applicable law to be given in
another manner, all notices required in this Deed of Trust shall be sent by certified mail, return
receipt requested or express delivery service with a delivery receipt, or personally delivered with
a delivery receipt obtained, and shall be deemed to be effective as of the date shown on the
delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was
returned as undeliverable as follows:
To the Owner:
At the address of the Borrower.
To the City:
Carlsbad Redevelopment City
Housing and Redevelopment Department
Attn: Housing and Redevelopment Director
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this section.
15. -. This Deed of Trust shall be construed in accordance with and
be governed by the laws of the State of California.
lid Provim . If any one or more of the provisions contained in this Deed of .. 16.
Trust or the Note shall for any reason be held to be invalid, illegal or unenforceable in any
respect, then such provision or provisions shall be deemed severable from the remaining
provisions, and this Deed of Trust and the Note shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in this Deed of Trust or the Note.
17. Capibm. The captions and headings in this Deed of Trust are for convenience
only and are not to be used to interpret or define the provisions hereof.
18. Def;rlllt:. Upon the Borrower's breach of any covenant or agreement of
the Borrower in this Deed of Trust, including, but not limited to, the covenants to pay, when due,
any sums secured by this Deed of Trust, the City, prior to acceleration, will send, in the manner
set forth in Section 14 of this Deed of Trust, notice to the Borrower specifying: (1) the breach;
(2) if the breach is curable, the action required to cure such breach; (3) a date, not less than thirty
5
(30) days from the date the notice is effective as set forth in Section 14 of this Deed of Trust, by
which such breach, if curable, is to be cured; and (4) if the breach is curable, that failure to cure
such breach on or before the date specified in the notice may result in acceleration of the sums
secured by this Deed of Trust and sale of the Security. Notice shall be effective as of the date
shown on the delivery receipt as the date of delivery, the date delivery was refused or the date the
notice was returned as undeliverable. The notice will also inform the Borrower of the Borrower's
right to reinstate after acceleration and the right to bring a court action to assert the nonexistence
of default or any other defense of the Borrower to acceleration and sale. If the breach is not
curable or is not cured on or before the date specified in the notice, the City, at the City's option,
may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable
without further demand and may invoke the power of sale and any other remedies permitted by
California law; (b) either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its
security, enter upon the Security and take possession thereof (or any part thereof) and of any of
the Security, in its own name or in the name of the Trustee, and do any acts which it deems
necessary or desirable to preserve the value or marketability of the Security, or part thereof or
interest therein, increase the income therefrom or protect the security thereof. The entering upon
and taking possession of the Security shall not cure or waive any breach hereunder or invalidate
any act done in response to such breach and, notwithstanding the continuance in possession of
the Security, the City shall be entitled to exercise every right provided for in this Deed of Trust,
or by law upon occurrence of any uncured breach, including the right to exercise the power of
sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or
specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration
of default and demand for sale, pursuant to the provisions for notice of sale found at California
Civil Code Sections 2924, el q., as amended from time to time; or (e) exercise all other rights
and remedies provided herein, in the instruments by which the Borrower acquires title to any
Security, or in any other document or agreement now or hereafter evidencing, creating or
securing all or any portion of the obligations secured hereby, or provided by law.
The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees.
19. Acceleration. Upon the occurrence of a default under the Note, this Deed of
Trust, the First Lender Note, or the First Lender Deed of Trust, the City shall have the right to
declare the full amount of the principal along with any interest under the Note immediately due
and payable. Any failure by the City to pursue its legal and equitable remedies upon default shall
not constitute a waiver of the City's right to declare a default and exercise all of its rights under
the Note and this Deed of Trust. Nor shall acceptance by the City of any payment provided for in
the Note constitute a waiver of the City's right to require prompt payment of any remaining
principal and interest owed.
Borrowers izht to Reinstak. Notwithstanding the City's acceleration of the I R' 20.
sums secured by this Deed of Trust, the Borrower will have the right to have any proceedings
begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days
before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any
time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all
sums, if any, which would be then due under this Deed of Trust as if acceleration under the Note
6 43
has occurred; (b) the Borrower cures all breaches of any other covenants or agreements of the
Borrower contained in this Deed of Trust; (c) the Borrower pays all reasonable expenses incurred
by City and the Trustee in enforcing the covenants and agreements of the Borrower contained in
this Deed of Trust, and in enforcing the City’s and the Trustee’s remedies, including, but not
limited to, reasonable attorney’s fees; and (d) the Borrower takes such action as City may
reasonably require to assure that the lien of this Deed of Trust, City’s interest in the Security and
the Borrower’s obligation to pay the sums secured by this Deed of Trust shall continue
unimpaired. Upon such payment and cure by the Borrower, this Deed of Trust and the
obligations secured hereby will remain in full force and effect as if no acceleration had occurred.
21. Jhmnnance. Upon payment of all sums secured by this Deed of Trust, the City
will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the
Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge
to the person or persons legally entitled thereto. Such person or persons will pay all costs of
recordation, if any.
22. lite Tniske. The City, at the City’s option, may from time to time remove
the Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor
trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by
applicable law.
23. inn tn First Mw. Notwithstanding any other provision hereof,
the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender Deed of
Trust and shall not impair the rights of the First Lender, or the First Lender’s successor or assign,
to exercise its remedies under the First Lender Deed of Trust in the event of default under the
First Lender Deed of Trust by the Borrower. Such remedies under the First Lender Deed of Trust
include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure.
After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or upon
assignment of the First Lender Deed of Trust to the Secretary of the United States Department of
Housing and Urban Development (the “Secretary”), this Deed of Trust shall be forever
terminated and shall have no further effect as to the Property or any transferee thereafter;
provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property
pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender’s Deed of Trust is
assigned to the Secretary, this Deed of Trust shall automatically terminate upon such acquisition
of title, or assignment to the Secretary provided that (i) the City has been given written notice of
default under such First Lender Deed of Trust and (ii) the City shall not have cured or
commenced to cure the default within such 30-day period and given its firm commitment to
complete the cure in the form and substance acceptable to the First Lender. Borrower agrees to
record any necessary documents to effect such termination, if applicable.
7
24. Athney's Fees . If any action or proceeding is brought to enforce this Deed of Trust
or any provision of this Deed of Trust or the Note, the prevailing party shall be entitled to its
attorneyk fees and the cost of such action or proceeding.
IN WITNESS WHEREOF, the Borrower has executed this Deed of Trust as of the date
first written above.
Borrower
(Print Name)
Borrower
(Print Name)
8
EXHIBIT A
Property Description
DEED OF TRUST AND SECURITY AGREEMENT
CITY OF CARLSBAD
ADMINISTRATIVE CHECKLIST
(Remove Upon Completion)
B1JANK 121NF:S: cHF:cKTJSC
Date of Document, p. 1, first paragraph
Borrower's Name, p. 1, first paragraph
Trustee's Name, p. 1, first paragraph
Date and Amount of Promissory Note, p. 2, second full paragraph
First Lender's Name, p. 2, Section 1
Date of First Lender's Deed of Trust, p. 2, Section 1
Recording Information for First Lender's Deed of Trust, p. 2, Section 1
Signatures, p. 9
Include Exhhi t A , Property Description
Notary
..
BORROWER DISCLOSURE STATEMENT
Farber Jefferson Street Condominiums
The City of Carlsbad (the "City"), through the City of Carlsbad Inclusionary Housing
Ordinance, has required the developer of the Farber Jefferson Street Condominiums development to
sell the homes in the development to qualified households under terms that make the home
affordable to you and the other new homebuyers. Your new home is affordable to you because the
developer is providing you with second mortgage financing through the Farber Jefferson Street
Condominiums Homebuyer Assistance Program (the "Program") so that you will be able to buy your
home. The developer has assigned the second mortgage to the City in fwlfillment of certain
inclusionary housing obligations. The City offers the Program in order to enable low income
households to own their own homes in Carlsbad.
As a condition of the financing, the City will require you to sign a Promissory Note and a
Deed of Trust. The Deed of Trust will be recorded against your property.
This Disclosure Statement explains the major provisions of the Promissory Note and the
Deed of Trust to help you understand their requirements. You should, of course, read all of the City
loan documents yourself and become completely familiar with them.
A. PRIMARY RESIDENCE AND LEASING YOUR HOME
Under the terms of the Promissory Note and Deed of Trust, the home you buy with the
assistance of the City loan must be your main place of residence. This means you must live in the
home no less than 10 months out of each calendar year. Each year, you must certify in writing to the
City that you are living in your home as your main place of residence. In addition, you cannot lease
your home. If you fail to follow these provisions, you are considered to be in default, and the City
may declare its loan immediately due and payable.
B. RESALE RESTRICTIONS
The Developer has provided financial assistance to assist in making the Farber Jefferson
Street Condominiums affordable. Your new home is affordable to you because the City and the
developer are providing you with second mortgage financing through the Farber Jefferson Street
Condominiums Homebuyer Assistance Program (the "Program") so that you will be able to buy your
home. As such, there are restrictions in your Deed of Trust and Promissory Note that limit
your ability to sell your home, the sales price at which you are able to sell your home, and of
the amount of income the purchaser of the home may earn in a year.
Beginning on the date you purchase your home (close escrow) and for fifteen years thereafter,
you may only sell your home to a qualified lower income household. A lower income household is
one in which the households gross annual income does not exceed 80% of the median income for
San Diego County, adjusted for assumed household size. Further, the sales price can increase above
the original sales price by an amount that is equal to the increase annual increase in the San Diego
Area Median Income. Median income figures shall be those published annually by the United States
-1-
Department of Housing and Urban Development. In the event that such income determinations are
no longer published, or are not updated for a period of at least eighteen (1 8) months, the City shall
provide the Owner with other income determinations which are reasonably similar with respect to
methods of calculation to those previously published by the Department of Housing and Urban
Development. Assumed household size figures shall be provided by the City. Fifteen (1 5) business
days prior to the completion of the sales transaction (close of escrow), the seller must provide
documentation to the satisfaction of the City that the new home buyer is in fact a lower income
household and the sales price is affordable to that lower income household.
Beginning sixteen (1 6) years after the initial purchase of the home, the home units may be sold
at a market price to non low 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.
The repayment process of the City loan is explained below.
C. NOTICES TO CITY
1. Notice of Intent to Sell, Assign or Transfer. If you decide to sell, assign or transfer
your home or any partial interest in your home, or if you record a mortgage or deed of trust against
your home, you must let the City know in writing at least fifteen business (1 5) days prior to the sale,
assignment, transfer, or the recording of a mortgage or deed of trust.
2. Notice and Certification of Purchase Price. If you go to sell your home, at least
fifteen business (1 5) days before the sale closes (close of escrow), you must give the City a copy of
the sales contract and a written statement that declares, under penalty ofperjury, the gross sales price
of the home. The written statement must be signed by both you (as seller) and the proposed buyer.
The written statement must also certify that the proposed buyer, or any other party, has not paid and
will not pay to you money or any other consideration that is not set out in the sales contract for the
home. The statement must also certify that you (as the seller) have not received and will not receive
fi-om the proposed buyer, or anybody else, money or other consideration that is not included in the
sales contract.
3. Delivery of Required Notices. Any notice you must provide to the City under the
terms of the City loan documents must be sent by certified mail, return receipt requested, or express
delivery service with a delivery receipt, or personally delivered with a delivery receipt obtained.
D. INTEREST ON THE CITY LOAN: "CONTINGENT INTEREST"
When the loan is eligible to be repaid under the terms and conditions listed in Section B
above, the City loan charges "contingent interest". The contingent interest represents the benefit you
received fi-om the City loan, and may generally be described as the percentage of the sales price that
the City loaned to you, with an adjustment or discount applied. The contingent interest on your loan
is due immediately if:
-2-
$
$
$
You default under the City loan or the First Mortgage, or
You sell or transfer title to your home, or
The end of the term of your loan is reached, with exceptions (see section E.
below)
The contingent interest on your City loan has three (3) parts:
(1) Appreciation Amount;
(2) Contingent interest percentage; and
(3) Automatic 25% discount to account for any improvements you may make to
the home.
An example is used to show each of the three (3) parts and how each would be calculated.
Your loan from the City is $1 8,200. The original sales price you paid for your home
was $140,000. When you sell, the sales price is $173,600.
Example 1
1. Appreciation Amount. The appreciation amount is generally the difference between
the original sales price you paid for the home and the price at which you sell it. For example:
Price of Home When You Sell: $173,600
Minus
Price of Home When You Bought: - $140,000
Appreciation Amount: $ 33,600
The appreciation amount is calculated differently under certain circumstances. If you (a) prepay your
City loan, or (b) transfer your home by means other than selling it, or (c) are in default under the
terms of the City loan, the appreciation amount will be figured by using the Fair Market Value of the
home (instead of the price of the home when you sell, as above). Fair Market Value is the value of
the home as determined by an independent appraiser chosen by the City. If such an appraisal is
necessary, the cost of the appraisal will be paid by you. If a creditor takes title to your home, the
appreciation amount will be figured by using the amount paid for the home at the creditor's sale.
2. Contingent Interest Percentage. The contingent interest percentage is the percentage
of the sales price that the City loaned to you. This percentage is figured by dividing the amount of the
City loan by the purchase price you paid for the home. Continuing with the example:
City Loan Amount:
Divided By
$ 18,200
Price of Home When You Bought: i $140,000
Contingent Interest Percentage = 13.00%
Equals
3. Automatic Discount For Possible Capital Improvements. During the time that you
-3-
live in your home, you may make improvements to it that will increase its value. For example, you
may put in a new central heating system or update the bathroom. To recognize the possibility that
you have invested in improvements which have contributed to an increase in value beyond the
increase due to a rise in the general real estate market, the contingent interest on the City loan
provides for a 25% discount. This discount is given automatically, even if you have not made any
improvements. Continuing with the example, the discount for capital improvements reduces the
contingent interest owed the City as follows:
Appreciation Amount: $ 33,600
Contingent Interest Percentage X .13
$4,368.00
Multiplied By
$4,368
Multiplied By
Automatic Discount X .25
Total Dollar Amount of Discount $ 1,092.00
Contingent Interest Amount $ 4,368.00
Minus
Contingent Interest You Owe City
Discount Amount - 1,092.00
$ 3,276.00
The automatic capital improvement discount shall be calculated by the City as set out in the
Promissory Note under Section 4 "Contingent Interest". The result is the same as with the calculation
above. A mathematical step has been eliminated.
Appreciation Amount: $ 33,600
Contingent Interest Percentage x .13
$ 4,368
Multiplied By
Automatic Discount Applied x .75
Contingent Interest You Owe City $ 3,276
E. PAYING BACK YOUR CITY LOAN
1. No Payments Required for 30 Years Unless You Sell, Transfer, or Default.
Your loan fi-om the City is a "deferred" loan. This means that you do not have to make
payments on your loan for the entire 30 year term. If, however, at any time you sell, assign or transfer
the home or if you break the terms of the loan documents, both the principal and contingent interest
owed on the loan may be immediately due and payable, per the terms and conditions of Section B
above. The refinancing of your first mortgage loan does not trigger immediate payment of principal
and contingent interest if the refinancing meets the terms of the Promissory Note (as described in
section G. below).
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2. When You Sell Your Home.
Per Section B above, when you sell, transfer, or assign your home or any interest in it, the
principal and contingent interest owing is immediately due and payable. The only times when this is
not the case is when a transfer is to an existing husband or wife who signed the Promissory Note, to a
husband or wife who then becomes a co-owner of the home, to a husband or wife as part of a
marriage or a divorce, to an inter vivos trust in which you are the beneficiary, or to a husband, wife,
or child upon death of the borrower.
Example 2 shows the repayment process for the City loan when the home is sold.
Example 2 You have lived in your home for 8 full years and now must sell it because you
received a promotion to a job in another state. You bought your home for $140,000.
The City provided you with a loan of $18,200 to help you buy your house. The sales
price of your home is $200,000.
(a) Amount of Principal Owed Upon Sale. Since the City Loan is a
deferred loan, and yow have made no payments during the time you have held the loan, the full
amount of principal must be repaid to the City at the time of sale. In this example, the principal
amount due is $1 8,200.
(b) Amount of Continpent Interest Owed. To figure out the amount of
contingent interest you owe the City, we need to calculate the appreciation amount and the
contingent interest percentage, and then apply the automatic discount.
Calculating the Appreciation Amount
Sales Price of Your Home:
Minus Price You Originally Paid: - $140,000.00
Appreciation Amount $60,000.00
$200,000.00
Calculating the Contingent Interest Percentage
Your City Loan divided by the
Price You Originally Paid:
Contingent Interest Percentage = 13%
$18,200 + $140,000 = 0.13
Calculatinp Contingent Interest Owed (With Discount Applied)
Appreciation Amount: $60,000.00
Contingent Interest Percentage X .13
$ 7,800.00
Automatic Discount X .75
Multiplied By
Multiplied By
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Contingent Interest Owed City $ 5,850.00
Total You Owe City Upon Sale of the Home
Principal Owed: $ 18,200.00
Plus Contingent Interest: + $ 5,850.00
Total Owed $24,050.00
F. REFINANCING FIRST MORTGAGE LOAN
The Promissory Note allows you to refinance your first mortgage loan without triggering
repayment of your City loan if the following conditions are met. The refinancing must be approved
by the City. The amount received from the refinancing can be no more than the remaining principal
amount of your first mortgage plus reasonable closing costs of the refinancing. The refinance cannot
result in higher monthly payments on the first mortgage loan than were due before the refinancing. If
these conditions are not met, principal and contingent interest on your City loan may be required to
be paid to the City when you refinance, per the terms and conditions listed in Section B above.
G. DEFAULT PROVISIONS
When you accept City loan assistance, you agree to meet all of the conditions of all of the
City loan documents. If you violate any provisions of the documents, you are considered to be in
default under your City loan. Also, if you default under the first mortgage loan, you would also be
considered to be in default under the City loan. If you do not correct the violation, the City could
require you to immediately repay the principal and contingent interest owing on the City loan. The
City could also go to court and get a court order to enforce the provisions of the City loan
documents, which may result in a foreclosure on your home.
Please sign the enclosed copy of this Borrower Disclosure Statement in the space
provided below and return it to the City at 2965 Roosevelt Street, Suite B, Carlsbad, California,
92008-2389.
I have read and understand the above Borrower Disclosure Statement.
By: By:
Signature of Borrower Signature of Borrower
Print Name of Borrower Print Name of Borrower
Dated: Dated:
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Please sign the enclosed copy of this Borrower Disclosure Statement in the space
provided below and return it to the Agency at 2965 Roosevelt Street, Suite B, Carlsbad,
California, 92008-2389.
I have read and understand the above Borrower Disclosure Statement.
By: By:
Signature of Borrower Signature of Borrower
Print Name of Borrower Print Name of Borrower
Dated: Dated:
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EXHIBIT 4
Farber Family Limited Partnership
991 C Lomas Santa Fe Dr, #441
Sohna Beach, CA 92075
Ph: 760-436-3355 Fa: 760-436-7766
June 21,2003
AT": Craig Ruiz
RE: 1100 Las Flores
Dear Craig,
I have enclosed the re-worded proposal to address the provision of two
affordable for sale units rather than rental units.
Please let me know if there is anything else you need from me. My
understanding is that this proposal needs to be signed by the City Council
and that you will provide me with a list of interested parties that I can
contact to determine if they qualify for purchase of the units under
affordable housing guidelines.
Thank-you for your attention to this proposal.
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FARBER FAMILY LIMITED PARTNERSHIP
99 1 C LOMAS S ANTA FE DRIVE, ##44 1
SOLANA BEACH, CA 92075
(760) 436-3355 (760) 783-0300
April 9,2003
Ms. Deborah K. Fountain
Housing and Redevelopment Director
City of Carlsbad
2965 Roosevelt St., Suite B
Carlsbad, CA 92008-2389
Subject: Buena Vista Village - Request to purchase off-site Affordable Housing Units
Dear Ms. Fountain,
This letter serves as a formal request by the Farber Family Limited Partnership to
purchase two existing off-site units to satisfy the inclusionary housing requirement for the
to meet the requirements set forth in the City’s Inclusionary Housing Ordinance (CMC
Chapter 21.85). The developer would enter into an agreement with the City of Carlsbad
to keep the units restricted and affordable to the designated income group for sSpe“ars.
This request is in compliance with objectives stated in the City’s Inclusionary Housing
Ordinance.
Buena Vista Village condominium development. The two units would be - q4r- sale
The City’s Inclusionary Housing Ordinance (CMC Chapter 21.85) establishes certain
requirements under which residential developers must provide housing that is affordable
to lower-income households as a condition of project approval and permit issuance. The
ordinance provides that “circumstances may arise in which the public interest would be
served by allowing some or all of the inclusionary units associated with one project to be
produced at an alternative site or sites.”
In the case of the Buena Vista Village development, there are particular circumstances
that warrant the provision of the inclusionary units off-site. Significant feasibility issues
affect providing on-site units for the development. Contribution of two existing d %r-sa\e
units off-site versus providing two low income units on-site will provide a better solution
due to location and mix of the existing units.
The attached Combindoff-site Project Assessment Worksheet provides specific details
to address why the off-site solution is better than providing the inclusionary units on-site.
We understand this request will be evaluated by a Staff Project Review Committee to
determine compliance. It is also understood that staff will then take the Committee’s
recommendation to the Housing Commission and City Council.
Please call if you need additional information.
Curtis L. Farber
General Partner
Farber Family Limited Partnership
BUENA VISTA VILLAGE
OFF-SITE AND COMBINED INCLUSIONARY HOUSING PROJECT
ASSESSMENT WORKSHEET: BACKGROUND
The following background information is provided to assist in your assessment.
Owner/Applicant Information:
Owner/Applicant:
Farber Family Limited Partnership
ATTN: Curtis L. Farber
991C Lomas Santa Fe Drive, W1
Solana Beach, CA 92075
760-43 6-33 55
Off-sitelcombined Project Name:
The Grove Condominium Complex
Description of Project with Inclusionary Housing Obligation:
Buena Vista Village, CT 02-13, is a proposed 11 unit condominium
development located on a 1.15 acre infill lot with a 1.65 unit affordable housing
obligation, rounded up, per ordinance, to 2 affordable units.
On-site Affordable Housing Description:
The only possibility for the project as approved for tentative map, would be to
provide two of the proposed units which are at the higher end of the market,
approximately 19OOsq. ft., ocean view units as affordable housing units. The
project would then become economically unfeasible.
Proposed Off-site Project Description:
The Grove Condominium Complex is a 172 unit complex consisting of 1 and
two bedroom units. The complex is just completing an approximate 4 million
dollar updating and renovation to the buildings, grounds and shared use
facilities.
Description of On-site Project Constraints:
Specific constraints exist which would affect an on-site affordable unit solution.
These include the inconsistency of either having large luxury condominiums as
the affordable units or attempting to place much smaller units consistent with
their intended use next to the much larger units. The use of two of the large
units would cost the developer approximately $1,400,000.00, a figure that would
not allow the project to be economically feasible. The concept of making two
smaller affordable housing units on the small site with the much larger units
5
would make a significant product type difference that would reduce the appeal of
the project to the public and, therefore, the viability of the project.
59’
BUENA VISTA VILLAGE
OW-SITE AND COMBINED INCLUSIONARY HOUSING PROJECT ASSESSMENT
WORKSHEET
1, Feasibilitv of the on-Site Promsal
a. Are there significant feasibility issues due to factors such as project size, site
constraints, amount and availability of required subsidy, and competition from
multiple projects that make an on-site option impractical?
The site is too small to effectively integrate two substantially different
styles of units in such close proximity in a project of this size.
A subterranean garage was employed in the complex design due to site
restraints. There is not enough room on the site to successfully alter the
complex design.
b. Will an affordable housing product be difficult to integrate into the proposed
market development because of significant price and product disparity?
Price disparities would be substantial between the two proposed low-
income for sale units and the project approved higher-end condominium
units which have and estimated base price range from the mid
$700,000.00’~ to the upper $800,000.00’s, The two for sale units would
have to be priced under $200,000.00 to allow families with the highest
level of income allowed by inclusionary housing guidelines to qualify to
purchase the units. The differential is in the mid 300% to over 400%
range.
The integration of two affordable condominium units, that would be from
725 to 1,100 sq. ft., into the complex with the approved 1900 to 2200 sq.
ft. units, would result in major product type disparity on-site. The
affordable units would be surrounded by the larger units that are dictated
by market demand for an ocean-view site such as the subject property.
The on-site project would, therefore, also result in substantial product
disparity with the surrounding development character.
c. Does the on-site development entity have the capacity to deliver the proposed
affordable housing on-site?
0 The design of the development would have to be compromised to alter the
complex to include two substantially different units.
Compromising the design would alter many of the features that make the
proposed development a plus for the community. The project would
change the 32% lot coverage when 60% is allowed, average front
setbacks over 50 feet when 15 feet is allowed, underground parking to
keep vehicles and garages unseen, and exceeding the minimum
recreational space by approximately 30%.
2. Relative AdvantazeslDisadvantages of the Off-site Proposal
a. Does the off-site option offer greater feasibility and cost effectiveness than the
on-site alternative, particularly regarding potential local public assistance?
0 The Grove Complex is built and has proven its feasibility; no additional
assistance is required.
0 The applicant’s provision of two for sale units in the Grove Complex will
meet the City’s mandate to provide affordable housing.
0 The on-site alternative is not economically feasible for the project.
b. Does the off-site proposal have location advantages over the on-site alternative
Such as proximity to jobs, schools, transportation services; less impact on other
existing developments?
0 The location of The Grove Condominium complex has advantages over
the on-site project in terms of access to employment in the large retail
facilities across the street (El Camino Real), public transportation, library
within walking distance, schools, parks, complex pool as well as other
amenities and services due to being located directly next to a major
thoroughfare, El Camino Real.
0 The Grove is a self-contained condominium development in an anxi
designated for higher density residential development such as
condominiums and townhomes.
0 The on-site proposal could be a source of land-use conflicts that typically
occur when attempting to locate affordable units on a small high?end site.
c. Does the off-site option offer a development entity with the capacity to deliver
the proposed project?
0 The Grove is an existing development and managed by an experienced
Homeowners Association.
d. Does the off-site option satisfy multiple developer obligations that would be
difficult to satisfy with multiple projects?
0 The Northwest Quadrant is currently lacking in City subsidized afford-
able housing projects for developers to participate in to fulfill their
affordable housing requirements. Small in-fill projects such as Buena
Vista Village that meet a community housing need are unable to be built
without the availability of off-site solutions.
0 The proposed off-site solution that involves the provision of an existing
market development for sale at a level affordable to low income
households is one that allows other developers of small in-fill projects an
economically feasible alternative to an on-site solution. This off-site
solution benefits the community in general by providing both needed in-
fill housing and affordable units for low-income households.
3. Advancing Housing: Goals and Strategy -
a. Does the off-site proposal advance andor support City housing goals and
policies expressed in the Housing Element, CHAS and Inclusionary Housing
Ordinance?
General Plan Housing Element and CHAS Goals:
0 Providing two affordable units for sale at The Grove contributes to the
highest priority need identified, units that low income households can
afford to purchase.
0 Provision of for sale units at The Grove will provide for available low-
income housing without a cost to the City, preserving resources for
additional affordable housing developments.
Inclus ionary Housing Ordinance Policies:
0 Consistent with the City and public interests to use existing units
before supporting additional new construction.
0 In conjunction with the combined The Grove units, the Buena Vista
Village development will provide for 15% of the total units for affordable
(lower income) residential units. The project also complies with the
Inclusionary requirements as contained in the General Plan Housing
Element.
Growth Management Zone, Ord. No. NS-257 Guidelines:
0 The Grove is coordinated with surrounding properties by providing direct
Access to a major Circulation Element Roadway, El Camino Real, as well
as circulation and pedestrian access to public facilities.
EXHIBIT 5
The City of CarIsbad Housing& Redeuelopment Department
AREPORT TO THE
HOUSING COMMISSXON I
Staff: CraigRuiz
M-agement JLnalyst
DATE: SEPTEMBER 11,2003
SUBJECT: FARBER JEFFERSON STREET CONDOMINIUMS COMBINED
AFFORDABLE HOUSING PROJECT RECOMMENDATION OF
APPROVAL TO THE CITY COUNCIL OF AN AFFORDABLE HOUSING
UNITS IN A COMBINED AFFORDABLE HOUSING PROJECT TO SATISFY
THE INCLUSIONARY HOUSING REQUIREMENT FOR THE FAIU3ER
JEFFERSON STREET CONDOMINIUMS LOCATED AT 1100 LAS FLORES
DRIVE
AGREEMENT TO ALLOW TWO OFF-SITE AFFORDABLE HOUSING
I. RECOMMENDATION
That the Housing Commission ADOPT Resolution No. 2003-004 recommending APPROVAL
to the City Council of an affordable housing agreement to allow two off-site affordable housing
units in a combined affordable housing project to satisfy the inclusionary housing requirement
for the Farber Jefferson Street Condominiums located at 1 100 Las Flores Drive.
11. PROJECT DESCRIPTION
On January 15, 2003, the Planning Commission approved the Farber Jefferson Street
Condominiums. The project is an 1 1-unit condominium project and is located at 1100 La Flores
Road, at the northeast comer of Jefferson Street and Las Flores Road. The project has a
requirement to provide two inclusionary housing units. When the Planning Commission
reviewed the project, the developer was given the option of providing the two affordable units
within the market rate development or to find a suitable off-site combined project, subject to the
review and approval of the Housing Commission and City Council. The developer is proposing
to provide the two affordable units in an off-site combined project.
The Inclusionary Housing Ordinance states that whenever reasonably possible, inclusionary units
should be built on the residential development project site. Howe.ver, the Ordinance also allows
for the required units to be provided off-site when it can be demonstrated by a developer that the
goals of this chapter and the city’s housing element would be better served by allowing some or
all of the inclusionary units associated with one residential project site to be produced and
operated at an alternative site or sites. The resulting linked inclusionary project site(s) is defined
as a combined inclusionary housing project.
FARBER JEFFERSON STREET CONDOMINlUh4S
SEPTEMBER 11,2003
PAGE 2
The most common example of a combined project to date is the Villa Loma Apartments. Villa
Loma was developed to meet the 160-unit affordable housing requirement for the Aviara
development and establish a “credit bank” of 184 units. These credits are purchased by
developers of smaller projects in the southern half of the City and the City is able to recoup its
subsidy to the project. To date, over 20 projects have met the inclusionary housing requirement
in this combined project. The primary difference between Villa Loma and the Farber Jefferson
Street Condominiums is that the proposed project will allow a for-sale development to meet its
inclusionary requirement by providing for-sale affordable units off-site. Projects participating in
Villa Loma are for-sale developments that have purchased credits in a rental development.
The Farber project is proposing that the combined project be located at 2362 Hosp Way, in The
Grove Condominiums, an existing development. As stated in the developer’s letter (see
Attachment 4 ), the small size of the market rate development makes it financially difficult to
integrate the affordable units into an overall development. The proposed combined project is
located within the same quadrant (northwest) as required by the Inclusionary Housing Ordinance
and is within 1 % miles of the new market rate development.
The proposal was reviewed by the Affordable Housing Policy Staff Team (“Team”). The Team
agreed with the developer that the combined project had numerous locational advantages over the
site of the market rate development. The site is located adjacent to El Camino Real,
approximately ?4 mile south of Marron Road. Within ?4 mile of the site of the affordable units,
there are numerous mass transit options (bus routes, transit center, Highway 78) and three
commercial centers that offer both employment and shopping opportunities. All of these
amenities are closer than would be available within the market rate development on Las Flores
Drive and Jefferson Street.
111. FINANCIAL ASSISTANCE
The Developer is not requesting any financial assistance for this project. However, as part of the
sale of the affordable units, the developer will provide a subsidy to the buyer to make the units
affordable to lower income households. The subsidy will be assigned to the City. The subsidy,
plus a percentage share of contingent interest, will be repaid to the City at the time the unit is
sold to a non-low income household which shall be no less than 15 years after the initial sale.
IV. LOAN DOCUMENTS
The borrower promissory note, deed of trust and disclosure statement related to this transaction
are attached as Attachment 3 for the Commission’s review and approval. The buyer of the
affordable unit will be required to enter into these agreements at the time oft he purchase to
ensure that the affordability requirements for the project are maintained. The loan documents
state if the property is re-sold within 15 years of the original purchase, the property must b e
resold to a subsequent 1 ow income household at a price which is affordable to a low income
household earning 80% or less of the AMI. The documents also allow that if the property is sold
FARBER JEFFERSON STREET CONDOMINIUMS
SEPTEMBER 1 1,2003
PAGE 3
after 15 years of the initial purchase, the property may be sold at market price, and the City will
recapture the initial subsidy, plus a share of any appreciation.
V. AFFORDABLE HOUSING AGREEMENT
Prior to the issuance of a final map or issuance of any building permits for the Farber
development, the developer will be required to enter into an Affordable Housing Agreement with
the City which binds the developer to the specifics of the affordable housing project. The
Agreement will require the inclusionary units be sold at a price that is affordable to a low income
household earning 80% or less of the San Diego County Area Median Income (AMI).
VI. SUMMARY AND STAFF RECOMMENDATION
It is the role of the Housing Commission to make recommendations regarding combined off-site
projects to the City Council based on several considerations with respect to affordable housing
projects. These are:
0 The proposal's effectiveness in serving the City's needs and priorities as expressed in the
Housing Element of the General Plan and the Consolidated Plan.
0 The proposal's consistency with the City's affordable housing policies and ordinances as
expressed in the Housing Element and Inclusionary Housing Ordinance.
As stated previously, the proposed affordable units have numerous locational advantages over the
market rate development. Thus, the affordable units have the ability to meet the goals and
objectives of the City's affordable housing program. The project location is close to numerous
service facilities, retail locations, mass transit, and employment opportunities in the area, The
developer of the market rate development has recently purchased the proposed affordable units.
The developer, who is also an experienced mortgage lender, has the necessary skills and
knowledge to ensure that the affordable units will be sold to qualified low income households.
It is staffs recommendation that the Housing Commission approve the resolution recommending
approval of the proposed affordable housing agreement to allow two off-site affordable housing
units in a combined affordable housing project located at 2362 Hosp Way to satisfy the
inclusionary housing requirement for the Farber Jefferson Street Condominiums located at 1 100
Las Flores Drive.
VII. ATTACHMENTS
1. Housing Commission Resolution No. 2003-004
2. Draft Affordable Housing Agreement
3. Borrower Loan Documents
4. Developer Off-Site and Combined Inclusionary Housing Project Assessment Worksheet
5. Vicinity Maps
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HOUSING COMMISSION RESOLUTION NO. 2003-004
THAT THE HOUSING COMMISSION RECOMMENDS APPROVAL TO THE CITY
SITE AFFORDABLE HOUSING UNITS IN A COMBINED AFFORDABLE HOUSING
PROJECT TO SATISFY THE INCLUSIONARY HOUSING REQUIREMENT FOR THE
FARBER JEFFERSON STREET CONDOMINIUMS LOCATED AT 1 100 LAS FLOWS
DWE
COUNCIL OF AN AFFORDABLE HOUSING AGREEMENT TO ALLOW TWO OFF-
APPLICANT: FARBER JEFFERSON STREET CONDOMINIUMS-
CASE NUMBER: SDP 02-14
WHEREAS, on January 15, 2003, the Planning Commission approved the Farber
Jefferson Street Condominiums to allow for the development of an 11 unit condominium project
at 1100 Las Flores Drive; and
WHEREAS, the Planning Commission required that the development provide two
affordable housing units to meet the requirements of the City’s Inclusionary Housing Ordinance;
and
WHEREAS, the Inclusionary Housing Ordinance states that whenever reasonably
possible, inclusionary units should be built on the residential development project site; and
WHEREAS, the Inclusionary Housing Ordinance also allows that when it can be
demonstrated by a developer that the goals of the Ordinance and the city’s housing element
would be better served by allowing some or all of the inclusionary units associated with one
residential project site to be produced and operated at an alternative site or sites with the
resulting linked inclusionary project site(s) to be defined as a combined inclusionary housing
project; and
WHEREAS, the developer of the Farber Jefferson Street Condominiums has proposed to
meet the project’s Inclusionary Housing Ordinance requirement through the provision of two off-
site affordable housing units in a combined project; and
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HC RESOLUTION NO. 2003-004
PAGE 2
WHEREAS, the location of the combined project at 2362 Hosp Way has locational
advantages over the market rate development which include closer proximity to mass transit,
employment and shopping opportunities; and
WHEREAS, based upon the locational advantages, the combined project has
demonstrated that the goals of the Inclusionary Housing Ordinance and the City’s Housing
Element would be better served by allowing the inclusionary units associated with the Farber
Jefferson Street Condominiums to be produced and operated at an alternative site which results
in a combined inclusionary housing project located at 2362 Hosp Way; and
WHEREAS, the Housing Commission did, on the 11* day of September, 2003, hold a
public meeting to consider the developer’s request to approve an affordable housing agreement
to allow two off-site affordable housing units in a combined affordable housing project to satisfy
the inclusionary housing requirement for the Farber Jefferson Street Condominiums located at
1100 Las Flores Drive; and
WHEREAS, upon hearing and considering all testimony, if any, of all persons desiring
to be heard, said Commission considered all factors relating to the proposed off-site combined
project.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Housing Commission of
the City of Carlsbad, California, as follows:
1. The above recitations are true and correct.
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HC RESOLUTION NO. 2003-004
PAGE 3
2.
3.
4.
5.
The Affordable Housing Agreement to allow two off-site affordable housing units
in a combined affordable housing project to satisfy the inclusionary housing
requirement for the Farber Jefferson Street Condominiums is consistent with the
goals and objectives of the City of Carlsbad’s Housing Element, Consolidated
Plan, the Inclusionary Housing Ordinance, and the Carlsbad General Plan.
The ,Affordable Housing Agreement to allow two off-site affordable housing units
in a combined affordable housing project to satisfy the inclusionary housing
requirement for the Farber Jefferson Street Condominiums will provide two (2)
affordable housing units which will be affordable to lower income households.
The project, therefore, has the ability to effectively serve the City’s housing needs
and priorities as expressed in the Housing Element and the Consolidated Plan.
That based on the information provided within the Housing Commission Staff
Report and testimony presented during the public meeting of the Housing
Commission on September 1 1, 2003, the Housing Commission hereby ADOPTS
Resolution No. 2003-004, recommending APPROVAL to the City Council of an
affordable housing agreement to allow two off-site affordable housing units in a
combined affordable housing project to satisfy the inclusionary housing
requirement for the Farber Jefferson Street Condominiums located at 1 100 Las
Flores Drive.
That the Housing Commission recommends that the Community Development
Director or his or her designee be authorized by the City Council to execute all
documents related to approval of the combined project, including but not limited
to an Affordable Housing Agreement.
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6. That the Housing Commission recommends that the City Council approve the
Promissory Note, Deed of Trust and Borrower Disclosure Statement related to the
sale of the affordable housing units, in substantially the form presented to the
Housing Commission on September 11, 2003, and subject to review and final
approval by the City Attorney.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Housing
Commission of the City of Carlsbad, California, held on the 1 1 *h day of September, 2003, by the
following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
AD HOUSIN COMMISSION Y
12-2 Y
DEBORAH K. FOUNTAIN
HOUSING AND REDEVELOPMENT DIRECTOR
HC RESOLUTION NO. 2003-003
PAGE 4
EXHIBIT 6 DRAFT
Minutes of: HOUSING COMMISSION
Time of Meeting: 6:OO P.M.
Date of Meeting:
Place of Meeting:
September 1 1,2003
HOUSING AND REDEVELOPMENT OFFICE
CALL TO ORDER
Chairperson Scarpelli called the Meeting to order at 6:04 p.m.
PLEDGE OF ALLEGIANCE
The Housing and Redevelopment Office did not have a flag so the Pledge of Allegiance was waived.
ROLL CALL
Present: Commissioners: Doris Ritchie
Edward Scarpelli
Margaret Schraml
Bobbie Smith
Absent: Commissioner: Renee Huston
Staff Present: Housing and Redevelopment Director: Debbie Fountain
Management Analyst: Craig Ruiz
APPROVAL OF MINUTES
Minutes of July 23, 2003, were approved with Vice-Chairperson Scarpelli being changed to Chairperson
Scarpelli in a couple of instances.
VOTE: 3-0
AYES: 3-0
NOES: None
ABSTAIN: Ritchie (absent July 23,2003)
COMMENTS FROM THE AUDIENCE ON ITEMS NOT LISTED ON THE AGENDA
There was no audience in attendance, who wished to speak at this time.
NEW BUSINESS
Craig Ruiz introduced Kurt Farber, the applicant. He then introduced each member of the Housing Commission.
Chairperson Scarpelli stated the Housing Commission has one item on the agenda: The Farber Jefferson
Street Condominiums combined affordable housing project. Staff is recommending approval to the City
Council of an affordable housing agreement to allow two off-site affordable housing units in a combined
affordable housing project to satisfy the inclusionary housing requirement for the Farber Jefferson Street
Condominiums located at 1 100 Las Flores Drive.
Craig Ruiz stated this project will be located on Las Flores Drive, between Jefferson Street and Interstate
5. The Planning Commission approved this project in January 2003, and the project has eleven
condominiums. This eleven condominium project has a requirement to provide two inclusionary housing
units. Our ordinance requires that whenever reasonably possible, we try to put the affordable units in with
the market-rate development. Our ordinance also provides that in certain instances when it can be
demonstrated that our housing goals could still be met or better served with the units off-site, then we can
do a combined inclusionary housing project. In the Villa Loma Project, some developers have been
buying units in that development, That was the first combined project where people satisfied their
requirement off-site.
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SEPTEMBER 11,2003
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This project is going to be unique. Villa Loma has developed the units and developers are buying credits
at a later time. Mr. Farber has proposed acquiring two units on Hosp Way in the Grove Condominiums. It
is an existing development on Hosp Way. The units front onto El Camino Real across from the Smart and
Final Center. Mr. Farber has already acquired the units. He will be selling those units to low-income
households per the requirements of our inclusionary housing units. With this project we have a market
rate development of eleven condominiums and in addition two units have been acquired that will be sold to
low-income households. In the past with Villa Loma, the developers have built market rate developments
and then they have purchased apartment units.
This off-site project, when you compare to the market rate site, has some definite advantages to it. The
proximity of the transportation corridor as it fronts on to El Camino Real; it is within half of a mile of the 78
Highway, and another half mile of the 5 freeway. Mass transit is also within a half mile; there are bus
routes on El Camino and the transit center at the mall, which is within a half mile. This is the hub for the
north county area. It also has proximity to services and employment such as the Smart and Final, the
Vons Center and the mall. Those are all service opportunities for people within walking distance or close
proximity. The services could be employment opportunities for people as well. In every instance, this
property has locational advantages over the market rate site.
With the for-sale affordable units, both properties will be sold to low-income households. Within the first
fifteen years of the first household buying the property, we will require that if they choose to sell it in that
time, they will have to sell it to another low-income household. After year 15, they could sell it to another
low-income household, but they also could now sell it at a market-rate price. If it is sold at the market rate price, there will b e a s ubsidy that made the unit affordable originally, so that subsidy amount plus the
share in the appreciation of the loan in that unit will be recaptured by the City and then turn around and put
it into another affordable housing project.
Chairperson Scarpelli clarified that it was not at the end of the 1 !jth year, but after the 1 6'h year.
Craig Ruiz continued that the applicant will be able to answer specific questions.
Chairperson Scarpelli asked if anyone had any questions of the staff regarding the proposal.
Commissioner Ritchie asked if the unit can be sublet and rented?
Craig Ruiz said no. It would be required in the deed that the property has to be the primary residence,
which means they would have to live there ten months out of the year. If they did try to rent it out, then
they would be in violation of their loan documents and either have to comply with them or be forced to sell
to another low-income household.
Commissioner Smith asked about the end of the year 15. At that time the unit can be sold at a market
price. What happens to the money that was subsidized for the low-income person to buy.
Craig Ruiz answered when the low-income person bought initially, the City will record a second trust deed
in that amount of that subsidy. If in year 16 they choose to sell that property, that subsidy will be repaid to
the City when they sell that unit, plus if the property appreciated $100,000, we would share proportionately in that appreciation as well. That would be their interest payment. The subsidy would be the principal. All
the money would return to the Housing Trust Fund, which we could then use for another affordable
housing unit.
Mr. Farber asked if the City subsidizes when the person buys the unit?
Craig Ruiz answered no.
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SEPTEMBER 11,2003
PAGE 3 of 6
Mr. Farber asked if they would have to qualify? What is the subsidy?
Chairperson Scarpelli asked if Mr. Ruiz could be a little more detailed on not only the subsidy, but also
what the percentage of the share in the equity would be.
Craig Ruiz answered that for his example he will use a one-bedroom unit. Simple assumptions are taken
into considerations such as the person who is going to buy this will have a 5% down payment. An interest
rate of 6.5% is assumed, which might be a little high. That one-bedroom unit could be bought by a one-
person household or a two-person household and the difference is split in this example and say this is a
household of 1.5 people. That household size would have a median income of $38,350. In this example,
a third of their gross monthly income can be applied towards their total housing costs, which would be
$959.00. When taking into consideration everything that goes into the basic housing payment, private
mortgage insurance, property tax payments, HOA dues, basic utility allowance, and the amount leftover
goes to principal and interest. In this example, this would total to $959.00, which is their monthly payment.
Chairperson Scarpelli asked if Craig Ruiz backed into the $566.00 after all the other numbers were
worked out?
Craig Ruiz said correct. In this example of 6.5% interest, that could work out roughly to a $90,000 loan.
We are saying hypothetically this is a $175,000 unit, so a low-income household in this example will be
paying $98,750, but the appraised value of this house is going to be $1 75,000. If they are paying $98,750, there is still a $76,000 gap. There will be a second trustee in that amount which will be recorded in favor
of the City. That is the subsidy they are getting.
Chairperson Scarpelli asked if we are getting $76,000 in this example from the Housing Fund?
Craig Ruiz said no, that will be a subsidy provided by the builder or the developer. The owner of that unit
during that first 15 years, they will have to sell it to another low-income household. We assumed median
income has appreciated by 3% a year. What they had paid $98,000 for they could now sell it for
$1 32,000. The subsidy they received originally will transfer on to this new low-income buyer. That will be
a simple transaction and the subsidy goes with the unit. If they sold it in year 16, and they sell it to a non-
low-income household, and if housing prices appreciated by 5% a year, which is low, from $175,000, but it
now has a market value of $383,000. That unit now has appreciated $207,000. The City will receive
$76,000 from the subsidy and the shared appreciation would be, in this example, 43% of it or $90,000.
We arrived at that figure by figuring that $76,000 subsidy is 43% of the $175,000 original purchase price.
Commissioner Ritchie asked if she could have something printed with that formula.
Craig Ruiz said yes.
Debbie Fountain said the price will change based on what those final numbers are. That would mean the
final HOA, the final interest rates, all of those things would change it.
Chairperson Scarpelli commented that Mr. Farber has already closed escrow on the two units. At what
price?
Craig Ruiz said he did not know.
Chairperson S carpelli a sked if a nyone h ad a ny other q uestions. H e a sked o ne m ore q uestion, i s the
applicant able to make any profit or margin of profit in the sale of the unit or does he have to transfer it at
the market value that he purchased it at? He asked Mr. Farber, what did he close escrow on the two
units?
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SEPTEMBER 11,2003
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Mr. Farber said one was $185,000 and one was $1 89,000.
Chairperson Scarpelli asked if Mr. Farber will be able to put those in for anything greater then that? Or
does he have to transfer it at that market value?
Craig Ruiz answered, those units, in this calculation, is going to be based on the appraised value of the
unit today so if that unit appraises higher then what he bought it a month or two ago, then he will get the
higher amount.
Mr. Farber asked if the unit appraised higher, would he be providing a higher subsidy?
Craig Ruiz said correct.
Mr. Farber commented there would not be any profit that would be taken out by the increased amount of
the subsidy. Based on this calculation, it means the low-income purchaser can only pay X amount,
regardless if the unit is $188,000 or $250,000, it would just raise the amount of the subsidy required by
me.
Chairperson Scarpelli asked if Mr. Farber would like to present his project.
Kurt Farber said during the course of getting this project approved, one of the b iggest obstacles was addressing the affordable h ousing i ssue. I n this s pecific q uadrant of t he c ity, I ike the o ne C raig Ruiz
described earlier where you p ay a n i n-lieu fee, i s s tandard i n this c ity, other cities and throughout the
county of San Diego. In this particular quadrant, there haven’t been any projects available for years. I have been in communication with Craig Ruiz for three years now. For these smaller infill projects, like this
one, with eleven units maximum, and they are coastal view type units, which is going to be a nicer unit
since it is the best way to use that site. To try and incorporate small, affordable housing units on a small
site like that, just isn’t economically feasible. This leaves you unable to develop good infill projects versus trying to go outside and create a bigger traffic problem. With this particular complex, the Grove,
$4,000,000 has been invested into rehabilitating the whole project. All the units are nice and new. One of
the units I have has been repainted, has a new refrigerator, new cabinets, new carpeting, so they are
really nice units. To be this close to the beach, transportation, and in that price range is pretty amazing.
Chairperson Scarpelli asked if they did a conversion with those apartments?
Mr. Farber said yes they were at one time. One person bought over 70 units originally and did the major
conversion and rehabilitated all his units. It is a nice complex.
Chairperson Scarpelli asked if everyone is familiar with where it is? He continued that he noticed we are
dealing with one-bedroom, one-bathroom units. How many square feet per unit?
Mr. Farber said he thinks they are around 700 square feet approximately.
Commissioner Smith asked if it is one-bedroom, is it only for one person?
Mr. Farber said the people he bought it from there were two people in one unit and three people in the
other unit. Either a husband and wife or a boyfriend and girlfriend along with a family.
Commissioner Smith commented since it is only one bedroom, a family with a child will be looking for
something a little larger.
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SEPTEMBER 11,2003
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DRAFT
Mr. Farber said it goes back to the pricing. The City only allows X amount. Especially on this northwest
quadrant so close to the coast the prices get so much higher. Finding these condominiums was a
surprise to me because looking around just to look at a single family home with two bedrooms, it is around
$350,000.
Chairperson Scarpelli commented that whoever came up with this concept with buying units this way
needs to be complimented on being that creative. It is a nice approach and I think a good approach. I
congratulate you for coming up with that solution.
Mr. Farber said he was looking for a solution that works. So far there weren’t any solutions that work.
This is somewhat costly, but at the same time it makes more sense then putting together market-rate
units with small, affordable units. I t would impact the whole look of the project. At the Grove, it has
transportation, it has pools, it has common facilities and it has shopping close by. For people in low-
income brackets it makes a great opportunity for them.
Chairperson Scarpelli said it has been a good residential community from the day it was built.
Mr. Farber commented that down the street on Hosp Way there are a lot of trees and it‘s a good
neighborhood.
Commissioner Ritchie commented that they have daycare right across the street, which is a plus.
Chairperson Scarpelli inquired about something Mr. Farber said. Therefore, whenever someone wants to
build within the northwest quadrant, I thought at one time we were going to be a little bit more flexible and
allow them to do the affordable element out of the quadrant because we didn’t have anything in this
quadrant.
Debbie Fountain said the City Council did not agree to that. It has to be within the quadrant. If there is a
combined project on a quadrant line on El Camino or on Palomar Airport Road, then it could go over, but
we don’t have any combined projects in the northeast or the northwest quadrant so the small projects are easier done with second dwelling units or they have to make one of the town homes affordable or they
have to find another alternative.
Chairperson Scarpelli asked if at this point, has Council approved this method of buying the units and
converting those?
Debbie Fountain said this is the first one.
Chairperson Scarpelli so we are the first one. Any more questions?
ACTION: Motion by Chairman Scarpelli that the Housing Commission adopt resolution
2003-04 recommending approval to the City Council of an affordable housing agreement to allow two
off-site affordable housing units in a combined affordable housing project to satisfy the inclusionary
housing requirement for the Farber Jefferson Street Condominiums located at 1100 Las Flores Drive.
VOTE: 4-0-0
AYES:
NOES: None
ABSTAIN: None
ABSENT: Huston
Ritchie, Scarpelli, Schraml, and Smith
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CHAIRPERSON’S REPORT
No reports.
DIRECTOR REPORT:
No reports.
ADJOURNMENT
By proper motion, the meeting of September 11,2003 was adjourned at 6:30 p.m.
Respectfully submitted,
Debbie Fountain
Housing and Redevelopment Director
PATRICIA CRESCENT1 Minutes Clerk
MINUTES ARE ALSO TAPED AND KEPT ON FILE UNTIL THE WRITTEN MINUTES ARE APPROVED.