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HomeMy WebLinkAboutCT 02-18; Anastasi Development Company; 2006-0530985; Affordable Housing Agreement/Release7024 ff fi /I 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 JUL27,2006 10:40 AM FEES7 38-°° PAGES: 11 2006-0530985 (Space above for Recorder's Use) AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY ("Agreement"), entered into this /4-fh day of APgtt- 2006, 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 currently intends to construct a total of seventy-eight (78) residential units (hereinafter referred to as the "Development") on the Subject Property. The City has approved Tentative Tract Map CT 02-18, Condominium Permit CP 02-10, Coastal Development Permit CDP 03-35, Hillside Development Permit 02-09 and Site Development Plan SDP 03-03 for the Development. The City issued these approvals subject to certain Conditions of Approval, including a condition requiring at least ten (10) of the units to be constructed within the Master Development to be sold at a price affordable to very low income households as permitted by the City Council to satisfy the inclusionary housing obligation of the project as set forth in the City's Inclusionary Housing Ordinance (CMC Chapter 21.85). NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Satisfaction of Affordable Housing Obligation and Conditions of Approval. In order to satisfy the Conditions of Approval of CT02-18 and SDP 03-03 and requirements of the City's Inclusionary Housing Ordinance, Carlsbad Municipal Code Chapter 21.85, Developer shall provide a total often (10) Affordable Units which shall be restricted and affordable to very low income households. This Agreement is an Affordable Housing Agreement pursuant to Section REV. 02/05/03 7025 21.85. 140 of Chapter 21.85 of the Carlsbad Municipal Code. Developer shall submit this Agreement to City and Agreement shall be executed prior to the approval of the final map for the Subject Property. 2. Terms Governing Provision of Affordable Units. 2.1. Obligation to Provide Affordable Units. 2.1.1. Developer shall provide the ten (10) Affordable Units in relation to Market Units ("Market Units") on the Subject Property. The Affordable Multifamily Units shall include one and three bedroom units with the square footage indicated in "Attachment B" to this Agreement. The maximum allowable income level of buyers of the affordable units shall be restricted to a maximum of 50% of the area median income. 2.2 Schedule for Developing Affordable Units. 2.2.1. Prior to the approval of any Final Map, Grading Permit or Building Permit for the Development: (i) this Agreement shall be duly executed and recorded; and (ii) the Developer shall have received approval of a Site Development Plan for all of the Affordable Multifamily Units included in the Development. 2.2.2 Upon satisfying the applicable conditions stated in Sections 2.2.1, all building permits can be released for a total of sixty-eight (68) market rate units and for the ten (10) Affordable Units. 2.2.3. Prior to receiving final Certificate of Occupancy for the fortieth (40th) Market Rate Unit, Developer shall receive final Certificate of Occupancy for the ten (10) Affordable Units. Once the final Certificate of Occupancy for all of the affordable units has been obtained, final Certificate of Occupancy may be obtained for the balance of the Market Rate Units (28 total remaining). 2.3 Terms for Sale of Affordable Units. 2.3.1. The Schedule of Maximum Eligible Buyer Incomes and Affordable Subsidized Purchase Prices (the "Schedule") attached hereto and incorporated herein as Exhibit C sets forth the City's requirements for determining the maximum household income of buyers of the Affordable Units ("Eligible Buyers") and the methodology for calculation of the subsidized purchase prices of Affordable Units which will be affordable to each of the Eligible Buyers (the "Affordable Purchase Prices"). The Schedule also includes initial estimates of Eligible Buyer actual incomes and the corresponding Affordable Purchase Prices. The Final Schedule shall be established prior to sale based on the San Diego County Area Median Income and the cost factors applicable at the time. The Final Schedule shall be submitted by the Developer and approved by the City's Housing and Redevelopment Director prior to the marketing of the Affordable Units. REV. 02/05/03 7026 2.3.2. The Developer shall sell the Affordable Units only to Eligible buyers whose household incomes have been verified by Affordable Housing Services ("AHS") on behalf of the Developer. The purchase price for an Affordable Unit (the "Market Purchase Price") shall be the market price charged for a comparable unit (and not to exceed fair market value); provided, however, that the Developer shall carry back financing equal to the difference between the 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. 2.4 Terms for Re-sale of Affordable Units. After the initial sale of the inclusionary for- sale units at a price affordable to the target income level group, inclusionary for-sale units shall remain affordable to subsequent very low income eligible buyers pursuant to a resale restriction for a minimum term of fifteen (15) years. Beginning in the sixteenth (16) year after the initial purchase of an Affordable Unit, for-sale units may be sold at a market price to other than targeted households provided that the sale shall result in the recapture by the City or its designee of a financial interest in the units equal to the amount of subsidy necessary to make the unit affordable to the designated income group and a proportionate share of any appreciation. Funds recaptured by the City shall be used in assisting other eligible households with home purchases at affordable prices. To the extent possible, projects using for-sale units to satisfy inclusionary requirements shall be designed to be compatible with conventional mortgage financing programs including secondary market requirements. 3. City Approval of Documents. 3.1. The following documents, in form and substance acceptable to the City, shall be used in connection with the sale of Affordable Units. Documents to be prepared by the Developer shall be submitted to the Housing and Redevelopment Director for review and approval no later than the start of construction of the Affordable Units. 3.1.1. A marketing plan establishing the process for seeking, selecting and determining the eligibility of buyers of the Affordable Units shall be prepared by the Developer. 3.1.2. An educational program informing Affordable Unit purchasers of the obligations of home ownership and the specific features of this program shall be prepared by the Developer. 3.1.3. Purchase and Sale Agreements for sale of the Affordable Units shall be prepared by the Developer. 3.1.4. City Second Mortgage promissory note, deed of trust, and borrower disclosure form shall be provided by the City. REV. 02/05/03 7027 3.2 Any of the documents identified in this section 3.1 may be revised by Developer from time to time with the prior written approval of the Housing and Redevelopment Director. 4. Mortgage Credit Certificate Program. Buyers of the Affordable Units may qualify for income tax credits pursuant to Mortgage Credit Certificate (MCC) Program, for a portion of the annual interest paid on a first mortgage used to acquire the Affordable Unit. City shall cooperate with Developer in obtaining and providing to prospective buyers Mortgage Credit Certificates from allocations which it may receive. 5. Reporting and Compliance Monitoring. A report verifying compliance with the requirements of this Agreement covering the initial sales of the Affordable Units shall be provided to the City by the Developer and approved by the Housing and Redevelopment Director. Developer shall provide the City with other reports as reasonably required by the City to verify compliance with this Agreement. 6. Default. Failure of the Developer to cure any default in the Developer's obligations under the terms of this Agreement within (90) days after the delivery of a notice of default from the City (or where the default is of the nature which cannot be cured within such ninety (90) period, the failure of the Developer to commence to cure such default within the ninety (90) day period or the Developer's failure to proceed diligently to complete the cure of such a default within a reasonable time period but in no event not greater than 180 days) will constitute a failure to satisfy the Conditions of Approval with respect to the Subject Property and the requirements of Chapter 21.85 of the Carlsbad Municipal Code and void the approval of the Final Map and Site Development Plan; and the City may exercise any and all remedies available to it with respect to the Developer's failure to satisfy the Conditions of Approval, including but not limited to, the withholding of building permits for the Market Units within the Subject Property until such cure is completed. 7. Appointment of Other Agencies. At its sole discretion, City may designate, appoint or contract with any other public agency, for-profit or non-profit organization to perform the City's obligations under this Agreement. 8. Release of Subject Property From Agreement. The covenants and conditions herein contained shall apply to and bind the Developer and its heirs, executors, administrators, successors, transferees, and assignees of all the parties having or acquiring any right, title or interest in or to any part of Subject Property and shall run with and burden the Subject Property until terminated in accordance with the provisions hereof. Prior to the issuance of building permits, the Developer shall expressly make the conditions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in the Subject Property. Notwithstanding anything to the contrary set forth in the Agreement, individual purchasers of market rate units pursuant to an approved public report in compliance with the California Subdivided Lands Act, and mortgage lenders holding deeds of trust on such individual units after sale to such purchasers, shall not be subject to the terms of this Agreement; and the terms of this Agreement shall be of no further force or effect with respect to such completed unit on the date REV. 02/05/03 7028 of the recordation of a deed to the individual purchaser. Upon issuance of certificates of occupancy for all of the Affordable Units, the entire Subject Property, with the exception of the property subject to the approved Site Development Plan, 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 approved Site Development Plan in accordance with the terms 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 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 one million dollars ($1,000,000) per occurrence and aggregate limits of not less than two million dollars ($2,000,000) for bodily injury and death and property damage, including coverages for contractual liability and products and completed operations, purchased by Developer or its successors or assigns from an insurance company duly licensed to engage in the business of issuing such insurance in the State, with a current Best's Key Rating of not less than A-:V, such insurance to be evidenced by an endorsement which so provides and delivered to the Housing and Redevelopment Department prior to the issuance of any building permit for the Subject Property. 11. Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to the party to receive such notice at the addressed set forth below: 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 REV. 02/05/03 7029 TO THE DEVELOPER: Anastasi Development Co., LLC Attn: Bud Mirassou 511 Torrance Boulevard Redondo Beach, Ca. 90277 Any party may change the address to which notices are to be sent by notifying the other parties of the new address in the manner set forth above. 12. Integrated Agreement. This Agreement constitutes the entire Agreement between the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. 13. Duration of Agreement. This Agreement shall terminate and become null and void upon the earlier of: (a) the closing of the sale of the last of the Affordable Units to an individual purchaser pursuant to a sale on an approved public report in compliance with the California Subdivided Lands Act, or (b) upon the granting of a written release by the Community Development Director. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of Developer and the Community Development Director. 14. Recording of Agreement. The parties hereto shall cause this Agreement to be recorded against the Subject Property in the Official Records of the County of San Diego. 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. REV. 02/05/03 7030 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above written. DEVELOPER Anastasi Development Company, A California limited liability company CITY City of Carlsbad, a Municipal corporation By: ''Sandra L. Homer Community Development Director If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: JWJfjJ^U,' JarfeMobaldi Assistant City Attorney REV. 02/05/03 7031 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California / ,n<County of [ *•<-' ss. On A/&L,before me, personally appeared Name and Title of Officer (e.g., "JarVboeJJotary Public"} Jfotf "JarVboeJJota & . RATRICIAWATTS Commission* 1358667 Notary Public - California Los Angeles County MyComm.ExpifB8Jun23.2006 Name(s) of Signer(s) Nlpersonally known to me 3 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ie/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in tris/liyi/lheir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNEE [ hand.and official seal. 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: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attomey-in-Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • vwwi.nationalnotary.org Reorder: Call Toll-Free 1-800-876-6827 7032 ATTACHMENT A LEGAL DESCRIPTION OF SUBJECT PROPERTY Lot 1 of Map No. 15346 recorded May 19, 2006 as file no. 2006-0355292. REV. 02/05/03 7033^ ATTACHMENT B LOCATION, SIZE, AND BEDROOM COUNT OF AFFORDABLE UNITS Model Type 1 2 3 No. of Units 1 8 1 Bedrooms 1 1 3 Bathrooms 1 1 2 Square Footage 555 111 952 REV. 02/05/03 ~f033A 5 €O CDI- O to CD CD COco cn inin CM co•sf in co"f/\ tn t f\\J t \fV \fj The Bluffs by Anastasi Development CompaiO •4— • 1 -|— » < TJ •C CO CD OOC if)— <u ££. QQ (D !g x: o ii iS£ E -a x — |l fl}Q) — "TT -| CO < COco "5. 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