HomeMy WebLinkAboutD-1571 Devaul Ranch South - 053-510-007 Recorded 05/28/2002RECORDING REQUESTED BY-
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<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
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D 1.5-71
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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
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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
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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
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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,
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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:
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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
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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
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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
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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.
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LOS OSOS VALLEY ROAD
TON/M/ DR/Y!
END OF DOCUMENT