HomeMy WebLinkAbout2006-012 ECR 24, LLC ci =A�i�`.SCADERO JULIE RODEWALD MEL
' CC =' CTF = San Luis Obispo County—Clerk/Recorder 8/25/2006
+ Recorded at the request of 8:00 AM
RECORDING REQUESTED BY AND Cuesta Title Company
WHEN RECORDED MAIL TO: D 0 C#: 2006060349 Titles: 1 Pages: 22
City of Atascadero Fees 0.00
6907 EI Camino Real Taxes 0.00
Atascadero, CA. 93422 others 0.00
Attn: Community Development Director PAID $0.00
No fee for recording pursuant to (Space above for Recorder's Use)
Government Code Section 27383
AFFORDABLE HOUSING AGREEMENT
(Inclusionary For-Rent or For-Sale Inclusionary and Density Bonus Units—On-Site—No
Public Financing)
FMP 05-0117/TTM04-0054[Tract 2640: El Camino Real PD-17]
This AFFORDABLE HOUSING AGREEMENT ("Agreement") is entered into as of
this 23 day of August 2006; by and between the CITY OF
ATASCADERO, a municipal corporation (the "City"), and ECR 24, LLC, a Limited
Liability Company (the"Developer"), with reference to the following facts:
A. The Atascadero City Council has an Inclusionary Housing Policy,
adopted on June 24, 2003, and amended November 25, 2003 (the "Inclusionary Policy")
to increase homeownership opportunities available and affordable to moderate-income
households. The City has also adopted a Density Bonus Ordinance, Atascadero
Municipal Code Section 9-3.175(f) (the "Ordinance") to conform with State Density
Bonus Law (Government Code Section 65915), which allows a density bonus for the
provision of housing affordable to very low income and lower income households.
B. Developer is the owner of certain real property in the City of Atascadero,
California described in Exhibit A attached hereto and incorporated herein by this
reference (the "Property").
C. Developer has received a discretionary approval from the City to construct
a total of Twenty-Four(24) residential units known as 1225 EI Camino Real PD-17
(hereinafter referred to as the "Development") on the Property. Pursuant to the
Ordinance, Government Code 65915, and the Inclusionary Policy, the Development
includes, and City has granted, Owner a density bonus of Four [4] units (the "Density
Bonus") in exchange for Owner's provision of None [0] units which will be affordable
and [sold or rented] to Moderate Income Households, None [0] units which will be
affordable and [sold or rented] to Lower Income Households, and Two [2] units
which will be affordable and sold or rented to Very Low Income households (the
"Affordable Units") and will remain affordable for a term of thirty(30) years.
1442\02\319175.12.3.2006
D. Pursuant to the Inclusionary Policy, the Ordinance, Government Code
Section 65915, and the conditions of approval for the Development, Developer is
required to execute this Agreement prior to the approval of any final or parcel map for
the Development and prior to the issuance of any building permit for the Development.
Developer and City intend to set forth in greater detail and specificity within this
Agreement the terms and conditions for producing and selling the Affordable Units in
the Development.
NOW, THEREFORE, in consideration of the benefits received by the Developer
and the City, the Developer and City agree as follows:
Section 1. Definitions. In addition to those terms defined in the Recitals, the
following terms are specially defined in this Agreement:
(a) "Administering Agency" means the San Luis Obispo Housing
Authority, the City, or another agency as determined by the Community Development
Director that has experience in the administration of affordable housing programs.
(b) "Affordable Ownership Price" means the maximum sales price as
shown on the San Luis Obispo County's Affordable Housing Standards, published
monthly or if calculated by the City of Atascadero, a sales price that includes a
reasonable down payment and results in a Monthly Housing Payment during the first
calendar year of a household's occupancy that, (i) for Very Low Income Households, is
equal to or less than one-twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of
Area Median Income, as adjusted for Appropriately-Sized households; (ii) for Lower
Income Households, is equal to or less than one-twelfth (1/12) of thirty percent (30%) of
seventy percent (70%) of Area Median Income, as adjusted for Appropriately-Sized
households; and (iii) for Moderate Income Households, is equal to or less than one-
twelfth (1/12) of thirty percent (30%) of one hundred twenty percent (120%) of Area
Median Income, as adjusted for Appropriately-Sized households. If the City of
Atascadero discontinues the use of the San Luis Obispo County's Affordable Housing
Standards, then Affordable Ownership Price shall be calculated by the City as shown in
Exhibit B.
(c) "Affordable Rent" means the maximum rental price, including
utilities, as shown on the San Luis Obispo County's Affordable Housing Standards,
published monthly or, if calculated by the City of Atascadero, a monthly housing
expense, including all fees for housing services and a reasonable allowance for utilities,
that does not exceed: (i) for Very Low Income Households, is equal to or less than
one-twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Median Income,
as adjusted for Appropriately-Sized households; (ii) for Lower Income Households, is
equal to or less than one-twelfth (1/12) of thirty percent(30%) of sixty percent (60%) of
Area Median Income, as adjusted for Appropriately-Sized households; and (iii)for
Moderate Income Households, is equal to or less than one-twelfth (1/12) of thirty
percent (30%) of one hundred twenty percent (110%) of Area Median Income, as
adjusted for Appropriately-Sized households. If the City of Atascadero discontinues the
use of the San Luis Obispo County's Affordable Housing Standards, then Affordable
Rent shall be calculated by the City as shown in Exhibit C.
1442\02\319175.12.3.2006 2
(d) "Affordable Unit Property" is as defined in Section 4.
(e) "Appropriately-Sized" shall be consistent with California Health and
Safety Code Section 50052.5(h), as amended from time to time, and shall be based on
presumed maximum occupancy levels of one person in a studio apartment, two (2)
persons in a one-bedroom unit, three (3) persons in a two-bedroom unit, and one
additional person for each additional bedroom thereafter.
(f) "Area Median Income" means median yearly income in San Luis
Obispo County as published pursuant to California Code of Regulations, Title 25,
Section 6932, or successor provision.
(g) "City Deed of Trust" means the deed of trust, in the form provided
by the City, executed by each buyer of an Ownership Affordable Unit at the time of
purchase of the Affordable Unit, securing the buyer's performance under the Resale
Agreement and the City Note.
(h) "City Note" means the promissory note, in the form provided by the
City, executed by each buyer of an Ownership Affordable Unit at the time of purchase of
the Affordable Unit.
(i) "Eligible Household" means a household that is qualified by the
Administering Agency as i) a First-Time Homebuyer and ii) with Household Income not
exceeding the household income level as defined for the applicable income category in
this Section 1.
(j) "First-Time Homebuyer" means a person who does not currently
hold an ownership interest in any real estate (as verified by a credit report) and who has
not had an ownership interest in his or her primary residence during the past three (3)
years; except that any person who is a Displaced Spouse may not be excluded from
consideration as a First Time Homebuyer on the basis that the individual, while a
homemaker, owned a home with his or her spouse. "Displaced Spouse" means a
person who is separated or divorced from his or her spouse.
(k) "Household Income" means the combined adjusted gross income
for all adult persons living in a dwelling unit, as calculated for the purpose of the Section
8 Program under the United States Housing Act of 1937, as amended, or its successor.
(1) "Initial Fair Market Value" means the sales price that the Developer
could receive for an Affordable Unit if the City did not restrict the amount that the
Developer may receive to the Affordable Ownership Price. The City may, at its option,
require that the Initial Fair Market Value be established through an appraisal by an MAI
or other qualified appraiser.
(m) 'Initial Maximum Rents" means the initial rents for the any Rental
Affordable Units calculated as shown in Exhibit C.
(n) "Lower Income Household" means a household with a Household
Income that does not exceed the United States Department of Housing and Urban
1442\02\319175.1_2.3.2006 3
r ,
t
Development's annual determination for lower income households with incomes of
approximately 80 percent of Area Median Income, adjusted for household size.
(o) "Lower Income Affordable Unit" means an Affordable Unit reserved
for purchase or rent at the completion of construction by Lower Income Households at
an Affordable Ownership Price or Affordable Rent.
(p) "Moderate Income Household" means a household with a
Household Income that does not exceed 120 percent of Area Median Income, adjusted
for household size in accordance with adjustment factors adopted and amended from
time to time by the United States Department of Housing and Urban Development
pursuant to Section 8 of the United States Housing Act of 1937.
(q) "Moderate Income Affordable Unit" means an Affordable Unit
reserved for purchase or rent at the completion of construction by Moderate Income
Households at an Affordable Ownership Price or Affordable Rent.
(r) "Monthly Housing Payment" includes mortgage interest and
principal, property taxes, mortgage insurance, homeowner's insurance, homeowners'
association dues, assessments paid by homeowners, and a reasonable allowance for
utilities and property maintenance costs, as determined by the Administering Agency.
(s) "Ownership Affordable Unit Property" is as defined in Section 4.
(t) "Ownership Affordable Units" are Affordable Units initially offered
for sale.
(u) "Regulatory Agreement" means the Inclusionary Housing
Regulatory Agreement and Declaration of Restrictive Covenants between the Developer
(or its successors to the Rental Affordable Unit Property) and the City, to be recorded
against the Rental Affordable Unit Property pursuant to Section 15(a) below.
(v) "Rental Affordable Unit Property" is as defined in Section 4.
(w) "Rental Affordable Units" are Affordable Units initially offered for
rent.
(x) "Resale Agreement" means the Resale and Refinancing Restriction
Agreement and Option to Purchase, in the form provided by the City, executed by each
buyer of an Ownership Affordable Unit and the City at the time of purchase of the
Ownership Affordable Unit.
(y) "Very Low-Income Household" means a household with an annual
income which does not exceed the United States Department of Housing and Urban
Development's annual determination for very low income households with incomes of
approximately 50 percent of Area Median Income, adjusted for household size.
1442\02\319175.1_2.3.2006 4
(z) "Very Low-Income Affordable Unit" means an Affordable Unit
reserved for purchase or rent at the completion of construction by Very Low-Income
Households at an Affordable Ownership Price or Affordable Rent.
Section 2. Satisfaction of Inclusionary Housing and Ordinance Obligation and
Conditions of Approval. The requirements of the Inclusionary Policy and Ordinance
shall be satisfied with respect to the Property if: (a) the Developer constructs or causes
to be constructed the Affordable Units meeting the requirements of Sections 3 through 5
below, in compliance with the schedule set forth in Section 6 below; (b) any Ownership
Affordable Units are sold to homebuyers in compliance with Sections 7 through 10
below; and (c) if there are Rental Affordable Units, Developer records the Regulatory
Agreement as described in Section 15(a) below against the Rental Affordable Unit
Property and markets and operates the Rental Affordable Units in compliance with
Sections 11 through 13 below and in compliance with the Regulatory Agreement. An
amendment to this Agreement will be required to receive final or parcel map or other
City approval for additional housing units on the Property above the requested total of
[Twenty-two] (22) Market Rate Units included in the Development, to make any
changes to the Affordable Units as they are described in Sections 3 through 5 of this
Agreement, or to otherwise change the terms of this Agreement.
Section 3. Number of Affordable Units. Developer shall construct, or cause to
be constructed, at least Two [2] Affordable Units, of which None [0] shall be [sold or
rented]to Moderate Income Affordable Units, None [0] shall be [sold or rented]to
Lower Income Affordable Units, and Two [2] shall be sold or rented to Very Low
Income Affordable Units.
Section 4. Location of Affordable Units. The Affordable Units shall be
constructed on the Property in the location(s) shown or described in the attached Exhibit
D. The legal parcel(s) of land on which the Affordable Units will be constructed, together
with any Affordable Units and appurtenant improvements constructed on the land, is the
"Affordable Unit Property." The legal parcel(s) of land on which any Affordable Units
initially offered for sale will be constructed, together with any Affordable Units and
appurtenant improvements constructed on the land, is the"Ownership Affordable Unit
Property." The legal parcel(s) of land on which any Affordable Units initially offered for
rent will be constructed, together with any Affordable Units and appurtenant
improvements constructed on the land, is the "Rental Affordable Unit Property."
Section 5. Appearance, Size, Bedroom Count and Tenure. The Affordable
Units shall be of the same general quality of exterior appearance and overall quality of
construction as the Market Rate Units. Interior features and finishes of the Affordable
Units shall be durable, of good quality, and consistent with contemporary standards for
new housing. The Affordable Units shall include the number of bedrooms, square
footage, and tenure indicated in Exhibit E to this Agreement.
Section 6. Schedule for Developing Affordable Units. Developer shall provide
the Affordable Units pursuant to the following schedule:
1442\02\319175.1_2.3.2006 5
(a) Prior to recordation of any final or parcel map or issuance of any
building permit for the Property, this Agreement shall be duly executed by the City and
the Developer and recorded against the Property.
(b) Concurrently with or following release by the City of building permits
for one-hundred percent (100%) of the Affordable Units, and upon satisfaction of all
other building permit conditions for the Market Rate Units, the City may release building
permits for one-hundred percent (100%) of the Market Rate Units.
(c) No certificate of occupancy shall be released by the City for any
Market Rate Unit until certificates of occupancy have been released by the City for one
hundred percent (100%) of the Affordable Units.
Section 7. Sale by Developer of Ownership Affordable Units to Eligible
Households. Following completion of construction, the Developer shall sell None [0]
Affordable Units to Moderate Income Households, None [0] Affordable Units to Lower
Income Households, and Two [2] Affordable Units to Very Low Income Households, at
the Affordable Ownership Price established by the City of Atascadero as described in
Section 8 below.
(a) At least thirty (30) days before offering an Ownership Affordable
Unit for sale, the Developer shall provide the City with written notice of the availability of
the Ownership Affordable Unit, including the number of bedrooms and required income
level of the unit. No later than thirty (30) days after receipt of such notice, the City shall
provide Developer with the Affordable Ownership Price for the Ownership Affordable
Unit and the income limits for Eligible Purchasers.
(b) For Moderate-Income Ownership Affordable Units, Developer shall
also provide City with Developer's proposed Initial Fair Market Value of the Ownership
Affordable Unit at least thirty (30) days before offering an Ownership Affordable Unit for
sale. No later than thirty (30) days after receipt of such notice, the City shall indicate the
City's agreement, or not, with Developer's proposed Initial Fair Market Value of the
Ownership Affordable Unit. The City may, at its option, require that the Initial Fair
Market Value be established through an appraisal by an MAI or other qualified
appraiser.
(c) Developer shall follow the procedures and comply with the
requirements of the Inclusionary Policy and applicable fair housing laws in marketing
and selling the Ownership Affordable Units.
(d) Prior to close of escrow for all Ownership Affordable Units, the
Administering Agency shall provide verification to City and Developer that the purchaser
of the Ownership Affordable Unit is an Eligible Household. Purchase contracts between
Developer and prospective buyers shall include requirements that buyers are verified as
Eligible Households prior to close of escrow and that buyers execute documents for the
benefit of the City as described in Section 10 below.
Section 8. Affordable Ownership Price.
1442\02\319175.12.3.2006 6
(a) The Ownership Affordable Units shall be sold to Eligible
Households at prices that do not exceed the Affordable Ownership Price established by
the City of Atascadero for Moderate Income, Lower Income, and/or Very Low Income
Affordable Units, as applicable. The method of calculating the Affordable Ownership
Price is included in Exhibit B attached hereto. Developer shall notify the City at least
thirty (30) days prior to offering an Ownership Affordable Unit for sale to allow the City
adequate time to calculate and notify the Developer of the Affordable Ownership Price
applicable to the Ownership Affordable Units offered for sale.
(b) Developer acknowledges and agrees that the Affordable Ownership
Price is determined based on Area Median Income in San Luis Obispo County,
changes to which are published annually by the State of California, Department of
Housing and Community Development, and other housing cost factors included in
Exhibit B, which change from time to time. Developer agrees that the City may
calculate the Affordable Ownership Price for the Affordable Units in its reasonable
discretion and that the City's calculation of Affordable Ownership Price shall be binding
upon the Developer.
(c) The Affordable Ownership Price established for each Ownership
Affordable Unit by the City shall be the absolute maximum price that the Developer or
any other person may receive as compensation for the Ownership Affordable Unit. The
Developer or other seller may not charge or receive any additional compensation for an
Ownership Affordable Unit regardless of whether the additional amount is (a) for
options, upgrades, or additional improvements to the unit, (b) paid through escrow or
outside of escrow, (c) paid prior to, after, or as part of the purchase escrow or (d) paid in
cash or in kind.
Section 9. City Approval of Homebuyer Documents. The following
documents, to be approved in writing by the City, shall be used in connection with the
development and sale of the Ownership Affordable Units. Approval of the following
documents by the City shall be required prior to the issuance of occupancy permits for
the Ownership Affordable Units and the offering for sale of the Ownership Affordable
Units.
(a) Form of Purchase and Sale Agreements for sale of the Ownership
Affordable Units (to be prepared by Developer and submitted to the City).
(b) Form of Resale Agreement, City Note, City Deed of Trust, Request
for Notice of Default and Sale, and Borrower's Disclosure (to be prepared by the City,
following Developer's request).
(c) The preliminary Department of Real Estate public report for the
Development, including the Ownership Affordable Units (to be obtained by the
Developer and submitted to the City).
Section 10. Homebuyer Documents and Security Instruments. Prior to the sale
of each Ownership Affordable Unit, Developer shall ensure that:
1442\02\319175.1_2.3.2006 7
"w
(a) The Eligible Household and the City execute the Resale Agreement
in the form provided by the City. The Resale Agreement shall be recorded against the
Ownership Affordable Unit Property at close of escrow on the sale to the Eligible
Household. The Resale Agreement shall be recorded junior only to the lien of the deed
of trust securing the Eligible Household's first mortgage loan obtained by the homebuyer
to finance the purchase of the Ownership Affordable Unit and only if required by the
lender (and second mortgage loan if such loan is provided by a public agency which
requires such subordination), unless otherwise approved in writing by the City.
(b) The Eligible Household signs the City Note in the form provided by
the City. For Moderate-Income Ownership Affordable Units, the City Note shall be equal
to the difference between the Affordable Ownership Price and the Initial Fair Market
Value of the Affordable Unit.
(c) The Eligible Household signs the City Deed of Trust to secure
performance of the Eligible Household's covenants under the Resale Agreement and
payment of the amounts due under the City Note. The City Deed of Trust shall be
recorded against the Ownership Affordable Unit, subordinate only to the Resale
Agreement and the lien for the first mortgage loan obtained by the homebuyer to
finance the purchase of the Ownership Affordable Unit (and second mortgage loan if
such loan is provided by a public agency which requires such subordination), unless
otherwise approved in writing by the City.
(d) A Request for Notice of Default and Sale is recorded for each deed
of trust recorded at close of escrow.
(e) The Eligible Household signs the Borrower's Disclosure in the form
provided by the City.
Section 11. Marketing and Rental of Rental Affordable Units. Following
completion of construction, the Developer shall rent any Rental Affordable Units to
[Very Low Income] Households at Affordable Rents calculated in compliance with
Exhibit C attached hereto and the Regulatory Agreement. Developer shall submit a
marketing and management plan to the Administering Agency for approval prior to
commencing marketing of the Rental Affordable Units and shall market the Rental
Affordable Units in compliance with the marketing and management plan approved by
the Administering Agency. Developer shall grant a preference to households that live or
work in San Luis Obispo County. Developer shall comply with applicable fair housing
laws in the marketing and rental of the Rental Affordable Units. Developer shall accept
as tenants, on the same basis as all other prospective tenants, persons who are
recipients of federal certificates or vouchers for rent subsidies pursuant to the existing
housing program under Section 8 of the United States Housing Act, or its successor.
Developer shall refer potential tenants to the Administering Agency for income
certification and not enter into a binding rental agreement with a tenant until income and
asset certification has been completed, and Developer has been informed in writing by
the Administering Agency that the potential tenant is income-eligible to occupy the
rental Affordable Unit.
1442\02\319175.1_2.3.2006 8
Section 12. Rental Affordable Units Not Subject to Costa-Hawkins Act.
Developer hereby acknowledges that the Development has received a Density Bonus in
consideration for the provision of the Rental Affordable Units. A Density Bonus is a form
of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of
Title 7 of the Government Code. As consideration for the Density Bonus, Developer
hereby agrees that Civil Code Section 1954.52(a) (Costa-Hawkins Act) does not apply
to the Rental Affordable Units.
Section 13. City Approval of Documents for Rental Affordable Units. The
following documents, to be approved in writing by the Administering Agency, shall be
used in connection with the rental of the Rental Affordable Units.
(a) A marketing and management plan approved pursuant to Section
11.
(b) Form of rental agreement or lease to be signed by tenants of the
Rental Affordable Units.
(c) The Regulatory Agreement, in a form to be provided by the County.
Section 14. Compliance Inspections, Monitoring.
(a) Ownership Affordable Units. Within five (5) days following the sale
of any Ownership Affordable Unit by the Developer, Developer shall forward to the City
copies of the buyer's and seller's settlement statement and all closing documents,
including Resale Agreement, City Note, City Deed of Trust, Request(s) for Notice of
Default and Sale, and Borrower's Disclosure executed in connection with the sale.
Developer shall retain all records related to compliance with obligations under this
Agreement, the Ordinance, and the Inclusionary Policy for a period not less than two (2)
years from the date of sale of all units in the Development and make them available to
City employees or others designated by the City for inspection and copying on five (5)
business days' written notice.
(b) Rental Affordable Units. Following completion of construction of any
Rental Affordable Unit, a report verifying compliance of all completed Rental Affordable
Units with the terms of the Regulatory Agreement, prepared on any form specified by
the Administering Agency, and certified as correct under penalty of perjury by the owner
of the Rental Affordable Units and any property management company managing the
units, shall be submitted annually to the Administering Agency on April 1 of each year,
commencing on the April 1 following issuance of final certificates of occupancy for one
hundred percent (100%) of the Rental Affordable Units. if similar reports on some or all
of the Rental Affordable Units are required for regulatory compliance with other
financing programs, those reports may be deemed satisfactory for the purpose of this
Section 14(b) by the Administering Agency with respect to the portion of the Rental
Affordable Units covered by such reports, provided that copies are provided on an
annual basis to the Administering Agency with an owner certification addressed to the
City. Developer shall retain all records related to compliance with obligations under this
Agreement, the Ordinance, and the Inclusionary Policy for a period not less than five (5)
years from the date of origination of such records, and make them available to the
1442\02\319175.1_2.3.2006 9
t
Administering Agency for inspection and copying on five (5) business days' written
notice. Developer shall permit the Administering Agency or others designated by the
City to inspect the Rental Affordable Unit Property to monitor compliance with this
Agreement or the Regulatory Agreement following two (2) business days' written notice
to Developer.
Section 15. Release of Property From Agreement.
(a) Construction of Affordable Units. The covenants and conditions
herein contained shall apply to and bind, during their respective periods of fee
ownership, Developer and its heirs, executors, administrators, successors, transferees,
and assignees having or acquiring any right, title or interest in or to any part of the
Property and shall run with and burden such portions of the Property until terminated in
accordance with this Section 15. Until portions of the Property are released from the
burdens of this Agreement pursuant to this Section 15, the owners of fee title to the
Property shall expressly make the conditions and covenants contained in this
Agreement a part of any deed or other instrument conveying any interest in such
property. Upon issuance of final certificates of occupancy for one hundred percent
(100%) of the Affordable Units and recordation of the Regulatory Agreement against the
Rental Affordable Unit Property, the Property, except for the Affordable Unit Property,
shall be released from the burdens of this Agreement.
(b) Ownership Affordable Units. As Ownership Affordable Units are
sold to Eligible Households in compliance with this Agreement, and Resale Agreements
and City Deeds of Trust are recorded against the Affordable Units, the portions of the
Ownership Affordable Unit Property sold to Eligible Households shall be released from
the burdens of this Agreement.
(c) Rental Affordable Units. The burdens of this Agreement shall
remain in full force and effect and recorded against the Rental Affordable Unit Property,
and the Rental Affordable Unit Property shall be restricted for affordable housing use,
for the thirty-year(30 year)term of this Agreement.
Section 16. Sale of Affordable Rental Units or Conversion to Condominiums.
Should the Developer or a future owner of the Rental Affordable Unit Property choose to
sell any Rental Affordable Unit, the unit shall be sold to an Eligible Purchaser at an
Affordable Ownership Price for the household income level established by the
Regulatory Agreement for the Rental Affordable Unit. The Affordable Rental Unit shall
first be offered for sale to the existing tenant at the Affordable Ownership Price. At least
thirty (30) days before offering a Rental Affordable Unit for sale, the Developer or
current owner shall provide the City with written notice of the proposed sale of the
Rental Affordable Unit, including the number of bedrooms and required income level of
the unit, and shall otherwise comply with the procedures specified in Sections 7 through
10 of this Agreement in the sale of the Rental Affordable Unit. As Rental Affordable
Units are sold to Eligible Households in compliance with this Agreement, and Resale
Agreements and City Deeds of Trust are recorded against the Affordable Units, the
portions of the Rental Affordable Unit Property sold to Eligible Households shall be
released from the burdens of this Agreement.
1442\02\319175,1_2.3.2006 10
Section 17. Default and Remedies. Failure of the Developer to cure any default
in the Developer's obligations under the terms of this Agreement within thirty (30) days
after the delivery of a notice of default from the City will constitute a default under this
Agreement and the requirements of the Inclusionary Policy and, in addition to remedies
for breach of this Agreement, the City may exercise any and all remedies available to it
under the Subdivision Map Act, the Inclusionary Policy, the Atascadero Municipal Code,
or otherwise, with respect to the Developer's failure to satisfy the terms of this
Agreement and the requirements of the Inclusionary Policy, including but not limited to:
(a) withholding, conditioning, suspending, or revoking any permit, license,
subdivision approval or map, or other entitlement for the Development, including without
limitation final inspections for occupancy and/or certificates of occupancy;
(b) instituting against the Developer, or other parties, a civil action for
declaratory relief, injunction or any other equitable relief, or relief at law, including
without limitation an action to rescind a transaction and/or to require repayment of any
funds received in connection with such a violation;
(c) where one or more persons have received financial benefit as a result of
violation of this Agreement or of any requirement imposed under the Inclusionary Policy
or Ordinance, the City may assess, and institute legal action to recover as necessary, a
penalty in any amount up to and including the amount of financial benefit received, in
addition to recovery of the benefit received;
(d) prosecuting a misdemeanor against any person who has sold a residential
unit at a price exceeding the maximum allowed under this Agreement or to a household
not qualified under this Agreement, or who has otherwise violated the Inclusionary
Policy, or any other agreement, restriction or requirement authorized or imposed under
the Inclusionary Policy; or
(e) any other means authorized under the City of Atascadero Municipal Code.
Section 18. Remedies Cumulative. No right, power, or remedy given to the City
by the terms of this Agreement or the Inclusionary Policy is intended to be exclusive of
any other right, power, or remedy; and each and every such right, power, or remedy
shall be cumulative and in addition to every other right, power, or remedy given to the
City by the terms of any such document, the Inclusionary Policy, or by any statute or
otherwise against Developer and any other person. Neither the failure nor any delay on
the part of the City to exercise any such rights and remedies shall operate as a waiver
thereof, nor shall any single or partial exercise by the City of any such right or remedy
preclude any other or further exercise of such right or remedy, or any other right or
remedy.
Section 19. Attorneys Fees and Costs. The City shall be entitled to receive
from the Developer or any person violating the requirements of this Agreement, in
addition to any remedy otherwise available under this Agreement or at law or equity,
whether or not litigation is instituted, the costs of enforcing this Agreement, including
without limitation reasonable attomeys' fees and the costs of City staff time.
1442\02\319175.12.3,2006 I I
Section 20. Appointment of Other Agencies. At its sole discretion, the City may
designate, appoint or contract with any other public agency, for-profit or non-profit
organization to perform some or all of the City's or Administering Agency's obligations
under this Agreement.
Section 21. Hold Harmless and Indemnification. 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 the Development, the Affordable Units, or
Developer's performance or non-performance under this Agreement, including without
limitation the construction or sale of any unit in the Development, and shall protect and
defend Indemnitees, and any of them with respect thereto, except to the extent arising
from the gross negligence or willful misconduct of the City. The provisions of this
Section 21 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 21 shall remain in full force and effect.
Section 22. Insurance Requirements. Until all Affordable Units have been sold
to Eligible Households in compliance with this Agreement, Developer and its successors
and assigns acquiring title to the Property shall obtain, at their expense, comprehensive
general liability insurance for development of the Affordable Units, naming Indemnitees
as additional named insureds,with aggregate limits of not less than Two Million Dollars
($2,000,000), for bodily injury and death and property damage, including coverage 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 AN, such insurance to be evidenced by an endorsement which so provides
and delivered to the City prior to the issuance of any building permit for the Affordable
Units.
Section 23. 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 addresses set forth below:
TO THE CITY:
City of Atascadero
6907 EI Camino Real
Atascadero, CA. 93422
Attn: Community Development Director
1442\02\319175.12.3.2006 12
TO THE DEVELOPER:
ECR 24, LLC
PO Box 422
San Luis Obispo, CA 93406
Attn: Andy Fetyko
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.
Section 24. Integrated Agreement. This Agreement constitutes the entire
Agreement between the parties and no modification shall be binding unless reduced to
writing and signed by the Parties.
Section 25. Duration and Amendment of Agreement. This Agreement shall
remain in effect for so long as the Property is subject to inclusionary housing obligations
pursuant to the Inclusionary Policy. This Agreement, and any section, subsection, or
covenant contained herein, may be amended only upon the written consent of the City
Council.
Section 26. No Joint Venture or Partnership. Nothing contained in this
Agreement or any document executed pursuant to this Agreement shall be construed as
creating a joint venture or partnership between City and Developer. Nothing contained
in this Agreement shall create or justify any claim against the City by any person that
Developer may have employed or with whom Developer may have contracted relative to
the purchase of materials, supplies or equipment, or the furnishing or the performance
of any work or services with respect to the Property or the construction of the
Development.
Section 27. Applicable Law and Venue. This Agreement shall be governed by
California law. Venue for any dispute arising out of this Agreement shall be San Luis
Obispo County.
Section 28. Waivers. Any waiver by the City of any obligation or condition in
this Agreement must be in writing. No waiver will be implied from any delay or failure by
the City to take action on any breach or default of Developer or to pursue any remedy
allowed under this Agreement or applicable law. Any extension of time granted to
Developer to perform any obligation under this Agreement shall not operate as a waiver
or release from any of its obligations under this Agreement. Consent by the City to any
act or omission by Developer shall not be construed to be a consent to any other or
subsequent act or omission or to waive the requirement for the City's written consent to
future waivers.
Section 29. Title of Parts and Sections. Any titles of the sections or
subsections of this Agreement are inserted for convenience of reference only and shall
be disregarded in interpreting any part of the Agreement's provisions.
1442\02\319175.12.3.2006 13
a '
Section 30. Multiple Originals: Counterpart. This Agreement may be executed
in multiple originals, each of which is deemed to be an original, and may be signed in
counterparts.
Section 31. Recording of Agreement. The Developer shall cause this
Agreement to be recorded against the Property, in the Official Records of the County of
San Luis Obispo.
Section 32. 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, or if any provision of this
Agreement is rendered invalid or unenforceable pursuant to any California statute which
became effective after the effective date of this Agreement, the remaining portions of
this Agreement shall nevertheless remain in full force and effect.
Section 33. Exhibits. The following exhibits are attached to this Agreement:
Exhibit A Legal Description of the Property
Exhibit B Calculation of Affordable Ownership Price
Exhibit C Calculation of Affordable Rent
Exhibit D Location of Affordable Units
Exhibit E Income Level, Size, Bedroom Count, and Tenure of
Inclusionary Units
1442\02\319175.12.3.2006 14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
DEVELOPER: CITY:
ECR 24, LLC 7a City of Atascadero, a municipal
corporation
California Limited Liability Company
By: •1 Y6
By. WADE CKINNE 'ityBy= anager
a
I-
Its:—ANDY FETYKO. M ging Partner
Vz
rren Frace, Director
Community Development Dept.
APPROV S TO F AND LEGAL
EF ECT
By:
PAAICKfARIGHT, City Attorney
State of California
County of San Luis Obispo
On August 23, 2006 before me, Annette L. Manier ,
Date (Name and Title of Officer(e.g.,"Jane Doe,Notary Public)
personally appeared Warren Frace
(Name(s)of Signer(s)
�] personally known to me—OR- to be
the person( whose name(*) is/a�v subscribed to the
within instrument and acknowledged to me that
he/sem executed the same in his/fir
capacity(i)A), and that by his/hefMt6r signature(
on the instrument the person(, or the entity upon
ANNM L.MAMER behalf of which the person(`) acted, executed the
Commkslon#►1636432
No1ory PuW.caWomo instrument.
Son tub Ob"Coun
61MVC0MM-80w0w16%4 WITNESS my hand and official seal.
Signature of Notary Public
1442\02\319175.12.3.2006 15
STATE OF CALIFORNIA )
) ss.
COUNTY OFSAr UAY-4 b )
On _,200 r,, before me, �( �,� uU[ . personally
appeared AtAW r and, personally known to me
%1L 6fideMe)basis of-jefiqfa�f APR F
to be the person(s) whose name(s) is/aye subscribed to
the within instrument and acknowledged to me that he/sheft" executed the same in
his/heipMi it authorized capacity(iss), 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.
WITNESS my hand and official seal. E.A.GRIFFIN
*Notry
Commission #1514454Notary PublicCaifornia
AN LUIS oeiSPO COUNTYlic in n r said State °°' My Comm %sewsr,,bef'o,Zoos
(SEAL)
STATE OF CALIFORNIA )
) ss.
COUNTY OF ALAMEDA )
On _,200_, before me, onally
appeared and, personally known to me (or pro o me on the
basis of satisfactory evidence) to be the person(s) whose n s) is/are subscribed to
the within instrument and acknowledged to me that Pe
/they executed the same in
his/her/their authorized capacity(ies), and that s/her/their signature(s) on the
instrument the person(s), or the entity up ehalf of which the person(s) acted,
executed the instrument.
WITNESS my hand a ficial seal.
otary Public in and for said State
(SEAL)
3/1/04
1442\02\319175.12.3.2006
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
TRACT 2640, IN THE CITY OF ATASCADERO, COUNTY OF SAN LUIS OBISPO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP RECORDED ON Av,,� 2`a ,
200 to IN BOOK 'Z.te AT PAGE(S) —15 OF MAPS, IN THE OFFICE
OF THE COUNTY RECORDED OF SAID COUNTY.
1442\02\319175.12.3.2006 i4-1
EXHIBIT B
CALCULATION OF AFFORDABLE OWNERSHIP PRICE
The Affordable Ownership Price for Ownership Affordable Units shall be calculated
using the procedures and formulas described below. The current City of Atascadero
Moderate, Lower, and Very Low Income Limits as established pursuant to the
Inclusionary Policy shall be used in these calculations. The interest rate used in these
calculations shall be determined by the City at its sole discretion.
1. Determine the area median income for a household size that is one person larger
than the number of bedrooms in the Affordable Ownership Unit.
2. Multiply the income limit as follows to obtain the annual housing allowance;
Very Low Income: 30% of 50% of the area median income, adjusted for
household size appropriate to the unit.
Lower Income: 30% of 70% of the area median income, adjusted for
household size appropriate to the unit.
Moderate Income: 30% of 120% of the area median income, adjusted
for household size appropriate to the unit.
3. Divide the annual housing allowance determined in the previous step by twelve
(12) to determine the monthly housing allowance;
4. Calculate the average monthly cost of property taxes, mortgage insurance,
homeowner's insurance, homeowners' association dues, assessments paid by
homeowners, utilities (excluding telephone), and a reasonable allowance for property
maintenance costs.
5. Subtract the amount calculated in Step 4 from the monthly housing allowance to
compute the amount available for mortgage payments.
6. Using a standard amortization table or formula, calculate the loan amount that
can be repaid over thirty (30) years with equal monthly payments equal to the amount
available for mortgage payments using the prevailing interest rate for thirty (30) years,
and assuming a fully amortized fixed rate mortgage.
7. Divide the loan amount calculated in the previous step by 0.95 to determine the
Affordable Ownership Price assuming a five percent (5%) down payment.
The following calculations are for a three (3) bedroom Moderate-Income Affordable Unit
based on the maximum income limits for San Luis Obispo County as of July 2004.
These calculations illustrate how the price of a Moderate Income Affordable Unit is
calculated.
1442\02\319175.1_2.3.2006 B-1
Step 1 Annual Moderate Income Limit for a 4 person household $74,050
Step 2 30% of the Income Limit determined in Step 1 $22,215
Step 3 One twelfth of the amount calculated in Step 2 $1,851
Step 4 Calculate monthly cost of property taxes, mortgage insurance,
homeowner's insurance, homeowners' association dues,
assessments paid by homeowners, utilities, and a reasonable
allowance for property maintenance costs (est.) $611
Step 5 Amount remaining for mortgage payments $1,240
Step 6 Amount that can be financed with payment calculated in Step 5 $201,400
with a 30 year fixed-rate loan at a 6.25% interest rate
Step 7 Loan amount in Step 6 divided by 95% = Affordable Ownership $212,000
Price
1442\02\319175.12.3.2006 B-2
r
EXHIBIT C
CALCULATION OF AFFORDABLE RENT
The Affordable Rent for Rental Affordable Units shall be calculated using the
procedures and formulas described below. The current City of Atascadero Moderate,
Lower, and Very Low Income Limits as established pursuant to the Inclusionary Policy
shall be used in these calculations.
1. Determine the area median income for a household size that is one person larger
than the number of bedrooms in the Affordable Rental Unit.
2. Multiply the income limit as follows to obtain the annual housing allowance;
Very Low Income: 30°x6 of 50% of the area median income, adjusted for
household size appropriate to the unit.
Lower Income: 30% of 60% of the area median income, adjusted for
household size appropriate to the unit.
Moderate Income: 30% of 120% of the area median income, adjusted
for household size appropriate to the unit.
3. Divide the annual housing allowance determined in the previous step by twelve
(12) to determine the monthly housing allowance;
4. Calculate the average monthly cost of utilities (excluding telephone) and all
mandatory fees charged for use of the property.
5. Subtract the amount calculated in Step 4 from the monthly housing allowance
calculated in Step 3 to compute the Affordable Rent,
1442\02\319175.1_2.3.2006 C-1
r
M
EXHIBIT D
LOCATION OF AFFORDABLE UNITS
LOT 18 OF TRACT 2640, IN THE CITY OF ATASCADERO, COUNTY OF SAN LUIS
OBISPO, STATE OF CALIFORNIA, ACCORDING TO THE MAP RECORDED ON
1`i , 2001 IN BOOK `L'�-, AT PAGE(S) "t1--1 OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDED OF SAID COUNTY.
AND
LOT 24 OF TRACT 2640, IN THE CITY OF ATASCADERO, COUNTY OF SAN LUIS
OBISPO, STATE OF CALIFORNIA, ACCORDING TO THE MAP RECORDED ON
A,,_ L-i , 200ia IN BOOK -V6, AT PAGE(S) -1�5-,` OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDED OF SAID COUNTY.
1442\02\319175.1_2.3.2006 C-1
r
+w -
EXHIBIT E
INCOME LEVEL, SIZE, TENURE, AND BEDROOM COUNT
OF AFFORDABLE UNITS
INCOME TYPE OF NUMBER NUMBER OF SQUARE ASSUMED
LEVEL OF UNIT OF BEDROOMS FOOTAGE HOUSEHOLD
BUYERS (single family UNITS SIZE
detached,
single family
attached, or
condominium
Very Low Detached 2 3 1328 sf w/ 4
Income Single-Family 465 sf
ara e
1442\02\319175.1_2.3.2006 E-1
END OF DOCUMENT