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HomeMy WebLinkAboutD-1571 Devaul Ranch South - 053-510-007 Recorded 05/28/2002RECORDING REQUESTED BY- Ry-. - Ame-rYco� To-it <OVR-SLO, LL(� WHEN RECORDED MAIL TO: City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401-3249 FATCO Order No. SLOB `x Z2-] - L JULIE RODEWALD San Luis Obispo County — Clerk/Recorder Recorded at the request of First American Title Company LO 5/28/2002 8:00 AM 0 o c # : . 2002043598 Titles: 1 Pages: 11 Fees 0.00 Taxes 0.00 Others 0.00 PAID $0.00 APN: Ptn 053-510-007 AFFORDABILITY AGREEMENT/DEED OF TRUST COVENANTS FOR TRACT 2401 / DEVAUL RANCH SOUTH THIS AGREEMENT (this "Agreement ") is made and entered into as of this _c�2 / 6- 1 day of , 2002, by and between the CITY OF SAN LUIS OBISPO, • charter municip rganization in the State of California (the "City ") and LOVR-SLO, • California limited liability company ( "Owner "), collectively referred. to as "the parties." RECITALS A. On April 3, 2001, the City Council adopted Resolution No. 9169 (2001 Series), approving a 53-lot residential subdivision located on a portion of a 13.64 acre parcel of land located near the southerly corner of the intersection of Madonna Road and Los Osos Valley Road, in the City of San Luis Obispo, California, commonly described as the single-family lots behind the second multi-family property south of Madonna Road on the west side of Los Osos Valley Road, San Luis Obispo, California; and B. Pursuant to Section 3 of Council Resolution 9169, Tentative Map Conditions, paragraph 6 on page 4 requires the applicant (Owner herein) to provide affordable housing consistent with Policy 1.22.1 of the Housing Element and City's Inclusionary Housing Regulations (SLOMC Ch. 17.91); and C. The parties have agreed that the Owner shall construct and sell homes in conformance with the City's Affordable Housing Standards; and D. The City and Owner desire to assure that the affordable dwelling units subject C:\My Documents \Work \pDown1oeds \10112959.WPD 1 1 D 1.5-71 • • to this Agreement remain affordable to moderate income households for a period of at least thirty (30) years, and are more particularly described as follows: Lots 8, 29, 30, 41, 42, 43 and 53 of Tract No. 2401, as per map recorded in Book a0 , Pages l/ to f , inclusive of Maps, in the office of the County Recorder of San Luis Obispo County, California. NOW, THEREFORE, the parties acknowledge and agree as follows: I. DEFINITIONS A. "Effective Date" shall mean the date of the recordation of this Agreement in the Recorder's Office of the County of San Luis Obispo. B. "Eligible Households" mean the persons and households meeting the definition under the City's Housing Element and Affordable Housing Standards. C. "Houses" mean the duplex and single - family residential structures to be constructed on the Properties. D. "Moderate income" mean persons and households whose income does not exceed one hundred twenty percent (120 %) of the County of San Luis Obispo area median income, adjusted for family size, pursuant to the City of San Luis Obispo Affordable Housing Standards. E. "Properties" mean those seven (7) specific real properties in the Project described in Recital D hereinabove, and Exhibit A attached hereto, that are intended to be sold to and occupied exclusively by Eligible Persons or Households during the Term of this Agreement. F. "Property Term" means for each Property the thirty (30) year period commencing on the date of the recordation of the Deed executed by the Owner or its successors and assigns conveying the Property to the first Eligible Household. II. RESTRICTIONS A. During the Property Term for each Property, the House to be constructed on the Property shall be used exclusively for Owner - occupied housing purposes and shall be sold or transferred only to Eligible Households.. For the initial sale of each Property to an Eligible Household, the sales price shall be determined at time of building occupancy release, in accordance with City of San Luis Obispo affordable housing standards. For subsequent sales of the Property, sales prices 0: shall be based on and consistent with then current City affordable housing standards. B. The Deeds for the transfers of interests in the Property by the Owner or its successors in interest and all future Deeds for transfers of interests in the Properties by all subsequent owners of the Properties shall contain a covenant and - restriction providing that during the Property Term for each Property there shall be no sale, lease, rental, or other transfer of the Property, except for the sale to an Eligible Household. Any sale, lease, rental, or other transfer of the Properties during their respective Property Terms in violation of this covenant shall be void. C. The Owner or its successors in interest agree to retain the services of the Housing Authority of the City of San Luis Obispo, or other qualified entity acceptable to the City, for screening potential buyers of the Properties to determine if they qualify as Eligible Households. D. These affordability requirements shall be covenants running with the land as defined in California Civil Code section 1460, and shall apply to the Properties. Pursuant to Civil Code section 1468, which governs such covenants, the provisions of this Agreement shall be binding upon all parties having any right, title, or interest in any of the Properties described herein, or any portion thereof and on their heirs, successors in interest and assigns for their respective Property Terms. E. When a Property is first sold to a buyer qualifying as an Eligible Household the buyer and City shall enter into an Affordable Housing Agreement which shall be recorded as an encumbrance on the Property, and secured by a recorded deed of trust. Said Agreement and deed of trust shall establish the monetary difference between the initial purchase price and the initial appraised value as a loan payable to the City. Said loan shall accrue interest, compounded annually, at an annual rate equal to four and one -half (4.5) points added to the Eleventh District Cost of Funds as currently published by the Federal Home Loan Bank Board, amortized over the Property Term, and the monthly payments of principal and interest shall be waived by the City as long as said buyer or subsequent buyers shall have been previously approved by the City Housing Authority or other entity approved by the City as an Eligible Household, continue to own and reside in the Property subject to the City loan as such buyer's principal residence. F. If a Property is sold, leased, or otherwise transferred to an entity, other than to an Eligible Household, in violation of this Agreement, the City's loan shall immediately become due and payable from the proceeds of the sale of the 3 ® • Property. "Proceeds of sale" shall mean the value of any and all consideration, however denominated, received or to be received by the seller from the sale of the Property after the payment of all outstanding indebtedness owed to the holder of the first priority deed of trust and after all normal and customary broker's, escrow, title and closing fees, costs and expenses in connection with the sale. G. The City or the Housing Authority of the City of San Luis Obispo shall have the first right of refusal to purchase the Property at its then current fair market value in accordance with the terms and conditions set forth in this Agreement. The consideration for the City's right of first refusal shall consist of one percent (1 %) of the remaining City loan balance. The balance of the City loan remaining after deducting this one percent (1 %) of the loan balance shall be credited toward the purchase price if the City elects to exercise the right of first refusal. The provisions of this Section shall not impair the rights of a first priority mortgage lender secured by a recorded deed of trust. Said first priority purchase money lender shall be deemed to have a higher priority than the City's loan, irrespective of the time of recording. The City's security shall be prioritized as a second mortgage. This first priority applies to the purchase money lender's assignee and successors in interest, to: 1. Foreclose on the Property pursuant to the remedies permitted by law and written in a recorded contract, mortgage or deed of trust; or 2. Accept a Deed in Lieu of Foreclosure for the deed of trust or assignment to the extent of the value of the unpaid first mortgage to the current market value in the event of default by a trustor; or 3. Sell the Property to any person at a fair market value price subsequent to exercising its rights under the deed of trust. Any value in excess of the unpaid mortgage and costs of sale administration shall be used to satisfy the City loan. In no case may a first mortgage lender, exercising foreclosure or by accepting a deed in lieu of foreclosure or sale, obtain value or rights to value greater than the value of the outstanding indebtedness on the first mortgage at the time of the debt clearing action. H. In addition, the following types of transfers shall remain subject to the requirements of the City's loan and right of first refusal: transfer by gift, devise, or inheritance to the Owners spouse; transfer to a surviving joint tenant; transfer to a spouse as part of divorce or dissolution proceedings; or acquisition in conjunction with a marriage. H • • I. For purposes of determining the amount of the City's loan and the purchase price of the Property for the City's right of first refusal, the fair market value of a Property shall be determined as follows: 1. The then current Owner of the Property and the City shall attempt to agree on the fair market value of the Property. If the parties agree upon the fair market value, during the Agreement Period, the fair market value of the Property for purposes of determining the amount of the City's loan or the purchase price payable for the purchase of the Property pursuant to the right of first refusal shall be the agreed upon fair market value. If the parties are unable to agree upon the fair market value, they shall jointly select an independent NIAI appraiser ( "Qualified Appraiser'') with at least five (5) years full time real estate appraisal experience for residential properties comparable to the Property in San Luis Obispo County, to appraise and set the fair market value. The parties shall share equally the fees, costs and expenses of said Qualified Appraiser. 2. If the parties fail to agree on the selection of a Qualified Appraiser within ten (10) days of notice to City ( "Initial Appraiser Selection Period "), each party shall select their own Qualified Appraiser within ten (10) days following the Initial Appraiser Selection Period and the two Qualified Appraisers shall determine and attempt to agree upon the fair market value within fifteen (15) days following the Initial Appraiser Selection Period ( "Initial Appraisal Period "). Each party shall bear the expenses of their own Qualified Appraiser. In the event that either party fails to designate a Qualified Appraiser within five (5) days following the expiration of the Initial. Appraiser Selection Period and after written notice has been provided to the parties, then the determination of the fair market value by the Qualified Appraiser selected by the other party shall be final and binding upon the parties. If the two Qualified Appraisers are able to agree as to the fair market value of the Property within the Initial Appraisal Period, then the fair market value of the Property for purposes of determining the purchase price payable for the Property pursuant to the City's right of first refusal shall be shall be the determined by the two Qualified Appraisers. 3. If the two Qualified Appraisers are unable to agree on the fair market value of the Property within the Initial Appraisal Period, 5 0 0 then said Qualified Appraisers shall, within five (5) days of the expiration of the Initial Appraisal Period, designate a third Qualified Appraiser. If a third Qualified Appraiser is appointed, then the fees and costs of the third appraiser shall be borne equally by the then current owner of the Property and prospective buyer. The third Qualified Appraiser shall determine the fair market value of the Property within. the ten (10) -day period following his or her appointment ( "Final. Appraisal Period "). The fair market value of the Property for purposes of determining the purchase price payable for the purchase of the Property pursuant to the City's right of first refusal shall be as follows: If the highest appraised fair market value is more than one hundred five percent (105 %) of the middle appraised fair market value, then the highest appraised fair market value shall be disregarded. If the lowest appraised fair market value is less than ninety -five percent (95 %) of the middle appraised fair market value, then the lowest appraised fair market value shall be disregarded. If there is then only one remaining appraised fair market value, that fair market value shall be the fair market value of the Property for purposes of determining the purchase price payable for the purchase of the Property pursuant to the City's right of first refusal. If there is then more than one remaining appraised fair market value, the remaining appraised fair market value shall be averaged, and the fair market value of the Property for purposes of determining the purchase price payable for the purchase of the Property pursuant to the City's right of first refusal shall be the average of such appraised fair market values. III. TIMING A. In the event the Owner has not completed the construction of the Houses and received a final building inspection.on all Houses within two (2) years from the Effective Date, the Ownership and control of the Properties shall revert to the City. Extensions of this period of time may be granted at the discretion of the City if the Owner has demonstrated just cause and a "good faith" effort to develop the Properties. IV. GENERAL A. Unless otherwise provided, all notices herein required shall be in writing, and delivered in person or sent by United States first class mail, postage prepaid to the address of the respective parties as specified below or at other addresses that may be later specified by the parties hereto: n 0 0 If to the City: City of San Luis Obispo Community Development Director 990 Palm Street San Luis Obispo, CA 93401 -3249 If to the Owner: LOVR -SLO, LLC Attn: Robert J.S. Fowler R.W. Hertel & Sons, Inc. 5200 Telegraph Road Ventura, CA 93003 -4114 With a copy to: Nordman, Cormany, Hair & Compton Attn: Paul W. Kurzeka, Esq. 1000 Town Center Drive, 6th Floor Oxnard, CA 93031 -1132 B. The Owner hereby specifically acknowledges and agrees to be bound by the covenants and restrictions contained herein respecting affordability on the Properties. C. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned as of the date set forth below. Dated: 2002 LOVR -SLO, LLC, a California limited liability company By: R.W. Hertel & Sons, Inc., a California corporation, Manager By: Ronald W. Hertel, President By Robert .Fowler, Vice President r-1 u APPROVED AS TO FORM AND LEGAL J L City Attorney STATE OF CALIFORNIA COUNTY OF VENTURA 0 CITY: Ken H pian, ` City Administrative Officer On g aZ 2002, before me, Carol J. Laufer, Notary Public, personally appeared RONALD W. HERTEL and ROBERT J.S. F_ OWLER, personally known to me ( ) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal le_Ae ev Carl J. Lau er, Notary Public E:3 CAROL J. LAUFER Commission o 1260131 t+iotary Pubk - CCRWFrk Vent= Counts► 14&MVCW=.&0wApr9.=41 mapowm STATE OF CALIFORNIA ) COUNTY OF SAN LUIS OBISPO ) On 2002, before me, Zeee— C� , Notary Public, personally appeared KEN HAMPIAN, City Administrative Officer, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. X91 LEE PRICE Commission # 1221)447 Z . Notary Public - CaGfomia San Luis Obispo Courrfy NV Comm. Eger May21, 2fX13 EXHIBIT A • DESCRIPTION OF "PROPERTIES" TRACT 2401 The properties listed below and located in Tract 2401 are to comply with and be subject to the affordable covenants for the tract. RESIDENTIAL STREET LOT TYPE 1. Farrier Lane 8 Single Family 2. Single Tree Lane 41 Single Family 3. DeVaul Ranch Road 29 Single Family / Attached 4. DeVaul Ranch Road 30 Single Family / Attached 5. Tonini Drive 42 Single Family / Attached 6. Tonini Drive 43 Single Family / Attached 7. Tonini Drive 53 Single Family / Attached See the attached lot and street map for reference. 7-10 -- I �v t 1 I 1 � 1 I 1 1 I 1 1 I 1 I� 1 1 I 1 � I 1 1 I� t I 1 1 � LOS OSOS VALLEY ROAD TON/M/ DR/Y! END OF DOCUMENT