HomeMy WebLinkAboutCT 01-10; Anastasi Development Company; 2003-1229945; Affordable Housing Agreement/Release\2P Icon
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RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
DOC # 2003-1229945
OFFICIAL RECORDS SW DIEGO COUNTY RECORDER’S WFIE GEGORY J. SHITH5’ COUNTY RECORDER FEES: 41.00
City of Carlsbad
City Clerk’s Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
(Space above for Recorder’s Use)
AFFORDABLE HOUSING AGREEMENT
IMPOSING RESTRICTIONS ON REAL PROPERTY
This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON
REAL PROPERTY (“Agreement”), entered into as of the3Aday of %+shm.bK 2003,
by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as
the (“City”), and Anastasi Development Company, a California limited liability company,
(hereinafter referred to as the “Developer”), is made with reference to the following:
A. Developer is the owner of certain real property in the City of Carlsbad, in the
County of San Diego, California (hereinafter referred to as the “Subject Property”) described in
Attachment “A”, which is attached hereto and incorporated herein by this reference.
B. For the purposes of this Agreement, Developer wishes to construct fifty-four (54)
residential housing units for sale at prevailing market prices (“Market Units”), eleven (1 1)
residential housing units for sale at affordable prices (“Affordable Units”), and 8,662 square feet
of retail shops. Developer wishes to construct the Affordable Units on the Subject Property. The
City has approved Redevelopment Permit RP01-06, ‘Carlsbad Tentative Tract Map CT 01-10,
and Coastal Development Permit CDP 01-16 for the proposed development (Development). The
City issued these approvals subject to certain Conditions of Approval, includmg a condition
requiring the Developer to enter into an Affordable Housing Agreement in which Developer
agrees to provide 11 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 (“CMC”) 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 prior to the approval of any final map, including Master Tentative Map, for the
Subject Property, and recorded thereafter.
D. For purposes of this Agreement the term “Institutional Lender” shall mean the
beneficiary of any deed of trust recorded against any Affordable Unit, or proposed to be recorded
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against any Affordable Unit, which is or will be senior to any City Second Mortgage, as such
term is defined hereinbelow.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Satisfaction of Affordable Housing Obligation and Conditions of Approval. In
order to satisfy the Conditions of Approval of approved Redevelopment Permit RPO 1-06,
Carlsbad Tentative Tract Map CT 01-10, and Coastal Development Permit CDP 01-16 and
requirements of the City’s Inclusionary Housing Ordinance, Carlsbad Municipal Code Chapter
21.85, Developer shall provide a total of eleven (1 1) 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. Terms Governing Provision of Affordable Units.
2.1. Obligation to Provide Affordable Units.
2.1.1. Developer shall provide the eleven (11) Affordable Units in
relation to Market Units (“Market Units”) on the Subject Property. The multifamily Affordable
Units shall include two, three and four bedroom units in the numbers and with the square footage
indicated in “Attachment B” to this Agreement. The maximum allowable income level of buyers
of the affordable units shall be restricted to a maximum of 80% of the area median income.
2.2. Schedule for Developing Affordable Units.
2.2.1. Prior to the approval of any Final Map, Grading Permit or Building
Permit for the Development, this Agreement shall be duly executed and this Agreement shall be
recorded immediately after the Final Map for the Development is recorded.
2.2.2. Upon satisfying the applicable conditions stated in Sections 2.2.1,
all building permits for the Development can be released for a total of fifty-four (54) Market
Units and eleven (1 1) Affordable Units.
2.2.3. Prior to receiving final Certificate of Occupancy for Building 8 and
Building 9 of the Development, Developer shall receive final Certificate of Occupancy for the
eleven (1 1) Affordable Units. Once the final Certificate of Occupancy for the Affordable Units
has been obtained, final Certificate of Occupancy may be obtained for Building 8 and Building
9.
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2.3. Terms for Sale of Affordable Units.
2.3.1. The Schedule of Maximum Eligible Buyer Incomes and
Affordable Subsidized Purchase Prices (the “Schedule”) attached hereto and incorporated herein
as Exhibit “C” sets forth the City’s requirements for determining the maximum household
income of buyers of the Affordable Units (“Eligible Buyers”) and the methodology for
calculation of the subsidized purchase prices of Affordable Units which will be affordable to
each of the Eligible Buyers (the “Affordable Purchase Prices”). The Schedule also includes
initial estimates of Eligible Buyer actual incomes and the corresponding Affordable Purchase
Prices. The Final Schedule shall be established prior to sale based on the San Diego County
Area Median Income and the cost factors applicable at the time of the sale of each Affordable
Unit. The Final Schedule shall be submitted by the Developer and approved by the City’s
Housing and Redevelopment Director prior to the marketing of the Affordable Units.
2.3.2. The Developer shall sell the Affordable Units only to Eligible
Buyers whose household incomes have been verified by Affordable Housing Applications, Inc.
(“AHA”). The purchase price for an Affordable Unit (the “Market Purchase Price”) shall be the
market price charged for a comparable unit (and not to exceed fair market value); provided,
however, that the purchase price to be paid to Developer by each Eligible Buyer shall be
decreased by an amount equal to the difference between the Market Purchase Price and the
Affordable Purchase Price for the particular Eligible Buyer (the “Primary Affordability
Subsidy”). Each Eligible Buyer shall execute a promissory note, in an amount equal to the
Primary Affordability Subsidy, in favor of the City, secured by a second mortgage deed of trust
on the Affordable Unit (the “City Second Mortgage”). The balance of the Market Purchase Price
shall be paid by the Eligible Buyer to the Developer in cash, utilizing downpayment monies and
first mortgage proceeds.
2.4 Terms for Re-sale of Affordable Units. After the initial sale of the Affordable
Units at a price affordable to the target income level group, the Affordable Units shall remain
affordable to subsequent low income eligible buyers pursuant to a resale restriction for a
minimum term of fifteen (15) years, provided, however, that upon the close of escrow for each of
the Affordable Units, all of Developer’s obligations with respect to such Affordable Units and
this Agreement shall terminate. Beginning fifteen (15) years after the initial purchase of an
Affordable Unit, the Affordable Unit may be sold 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 the
Primary Affordability Subsidy. 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.
3. City ADproval of Documents. ,
3.1. The following documents, in form and substance acceptable to the City,
shall be used in connection with the sale of Affordable Units. Documents to be prepared by
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AHA shall be submitted to the Housing and Redevelopment director for review and approval no
later than the start of construction of the Affordable Units.
3.1.1. A marketing plan establishing the process for seeking, selecting
and determining the eligibility of buyers of the Affordable Units shall be prepared by AHA.
3.1.2. An educational program informing Affordable Unit purchasers of
the obligations of home ownership and the specific features of this program shall be prepared by
AHA.
3.1.3. Purchase and Sale Agreements for sale of the Affordable Units
shall be prepared by AHA and the Institutional Lender.
3.1.4. The City Second Mortgage promissory note, deed of trust, and
borrower disclosure form shall be provided by the City, subject to any amendments,
modifications and restrictions required by the’Institutional Lender.
3.2. Any of the documents identified in section 3.1 may be revised by AHA
from time to time with the prior written approval of the Housing and Redevelopment Director.
4. Mortgage Credit Certificate Program. Buyers of the Affordable Units may
qualify for income tax credits pursuant to Mortgage Credit Certificate (MCC) Program, for a
portion of the annual interest paid on a first mortgage used to acquire the Affordable Unit. City
shall cooperate with Developer andor AHA in obtaining and providing to prospective buyers
Mortgage Credit Certificates from allocations that it may receive.
5. Reporting and Compliance Monitoring. A report verifying compliance with the
requirements of this Agreement covering the initial sales of the Affordable Units shall be
provided to the City by AHA and approved by the Housing and Redevelopment Director. AHA
shall provide the City with other reports as reasonably required by the City to verify compliance
with this Agreement. Provided, however, that upon the sale of each of the Affordable Units by
Developer, AHA shall have no further obligations under this section 5 with respect to such
Affordable Units.
6. Default. Failure of the Developer to cure any default in the Developer’s
obligations under the terms of this Agreement, provided such default occurs during the term of
this Agreement, within (90) days after the delivery of a notice of default from the City (or where
the default is of the nature which cannot be cured within such ninety (90) period, the failure of
the Developer to commence to cure such default within the ninety (90) day period or the
Developer’s failure to proceed diligently to complete the cure of such a default within a
reasonable time period but in no event not greater than 180 days) will constitute a failure to
satisfy the Conditions of Approval with respect to the Subject Property and the requirements of
Chapter 21.85 of the Carlsbad Municipal Code and void the approval of the Final Map and Site
Development Plan; and the City may exercise any and all remedies available to it with respect to
the Developer’s failure to satisfy the Conditions of Approval, including but not limited to, the
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withholding of building permits for the Market Units within the Subject Property until such cure
is completed.
7. Appointment of Other Agencies. At its sole discretion, City may designate,
appoint or contract with any other public agency for-profit or non-profit organization to perform
the City’s obligations under this Agreement.
a. Release of Subiect Property From Agreement. The covenants and conditions
herein contained shall apply to and bind the Developer and its heirs, executors, administrators,
successors, transferees, and assignees of all the parties having or acquiring any right, title or
interest in or to any part of Subject Property and shall run with and burden the Subject Property
until terminated in accordance with the provisions hereof. Prior to the issuance of building
permits, the Developer shall expressly make the conditions and covenants contained in this
Agreement a part of any deed or other instrument conveying any interest in the Subject Property.
Notwithstanding anything to the contrary set forth in the Agreement, individual purchasers of
market-rate units pursuant to an approved public report in compliance with the California
Subdivided Lands Act, and mortgage lenders holding deeds of trust on such individual units after
sale to such purchasers, shall not be subject to the terms of this Agreement; and the terms of this
Agreement shall be of no further force or effect with respect to such completed unit on the date
of the recordation of a deed to the individual purchaser. Upon issuance of certificates of
occupancy for all of the Affordable Units, the entire Subject Property, with the exception of the
Affordable Units, 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 Affordable Units for the
duration of this agreement.
9. Hold Harmless. Developer will indemnify and hold harmless (without limit as to
amount) City and its elected officials, officers, employees and agents in their official capacity
(hereinafter collectively referred to as “Indemnitees”), and any of them, from and against all loss,
all risk of loss and all damage (including expense) sustained or incurred because of or by reason
of any and all claims, demands, suits, actions, judgments and executions for damages of any and
every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of
or relating in any manner to Developer’s 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
10. Insurance Reauirements: Developer will cause to be purchased, at its expense,
comprehensive general liability insurance for the development of the Subject Property being a
wrap-up comprehensive general liability policy with a 10 year tail naming Indemnitees as
additional named insureds with aggregate limits of not less than One Million Dollars
($1,000,000) combined single limits, Two Million dollars ($2,000,000) aggregate, for bodily
injury and death and property damage, including coverages for contractual liability and products
and completed operations, from an insurance company duly licensed to engage in the business of
issuing such insurance in the State, with a current Best’s Key Rating of not less than A-V, such
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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.
11. Notices. All notkes 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
Anastasi Development Co., LLC
Attn: Bud Mirassou
1200 Aviation Boulevard, Suite 203
Redondo Beach, CA 90278
Any party may change the address to which notices are to be sent by
notifying the other parties of the new address in the manner set for the above.
12. Integrated APreement. This Agreement constitutes the entire agreement between
the parties and no modification hereof shall be binding unless reduced to writing and signed by
the parties hereto.
13. Duration of Agreement. This Agreement shall terminate and become null and
void upon the earlier of (a) the closing of the sale of the last of the Affordable Units to an
individual purchaser pursuant to a sale on an approved public report in compliance with the
California Subdivided Lands Act, or (b) upon the granting of a written release by the Community
Development Director. This Agreement, and any section, subsection, or covenant contained
herein, may be amended only upon the written consent of Developer and the Community
Development Director.
14. Recording of Agreement. The parties hereto shall cause this Agreement to be
recorded against the Subject Property in the Official Records of the County of San Diego.
15. Severability. In the event any limitation, condition, restriction, covenant, or
provision contained in this Agreement is to be held invalid, void or unenforceable by any court
of competent jurisdiction, the remaining portions of this Agreement shall nevertheless be and
remain in full force and effect.
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16. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original and all of which together shall constitute but one and the same
instrument .
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
DEVELOPER CITY
Anastasi Development Company,
a California limited liability company City of Carlsbad, a Municipal corporation
By : By:
gandra L. Holder
Community Development Director
Proper notarial acknowledgment of execution by contractor must be attached. If a Cornoration,
Agreement must be signed by one corporate officer from each of the following two groups.
*Group A. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-president CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
LOS ANGELES } ss.
PATRICIA WATTS , Name and Title of Officer (e.g.. "Jane Doe, Notary Public")
On h,L ay'uD3 before me,
Date
J. DARRYL NYZNYK personally appeared t Name@) of Signer(s)
personally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person(-@ whose name0 is/wx+
subscribed to the within instrument and
acknowledged to me that helsbeLtbey executed
the same in his/bedtheir authorized
capacity(ies), and that by hislherA&&
signature@) on the instrument the person0, or
the entity upon behalf of which the person(&
acted, executed the instrument.
Place Nolary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document,
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
~
0 Corporate Officer - Title(s):
0 Partner - 0 Limited Ci General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
E Other:
Signer 1s Representing:
Gczz3EEwe,~%mJL. %4> *%*%W>G
@ 1997 Naiional Notary Association 3350 De Solo Ave P 0 Box 2402 * Chatsworth. CA 91313-2402 Prod. No. 5907 Reorder. Call Toll-Free 1-800-876-6827
ATTACHMENT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Lot 1 of Village by the Sea, in the City of Carlsbad, County of San Diego,
State of California according to map thereof No. 14580, filed in the office
of the County Recorder of San Diego County, May 1,2003, file number
2003-0509741
ATTACHMENT B
Model Type Bedrooms Bathrooms
A-1 2 2
A-2 3 2
A-3 4 3
LOCATION, SIZE, AND BEDROOM COUNT
OF AFFORDABLE UNITS
Square Footage
871
1,170
1,447
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ATTACHMENT C
MAXIMUM ELIGIBLE BUYER INCOMES
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