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