Loading...
HomeMy WebLinkAbout2009 CON CDC San Diego Habitat for Humanity - Agreement Affecting Real PropertyRECORDING REQUESTED 8Y STEWART TITLE OF CALIFORNIA Recording Requested By: Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4397 And When Recorded Mail To: Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4397 7 916 IIIIIIII III IIIII IIIII IIIII IIIII II II IIIII IIIII i III IIIII IIIII II JUL 08, 2009 8:OO AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDERS OFFICE DA,AID L. BUTLER.. COUNTY RECORDER FEES: 0.00 III PAGES: 8 111111I MI I I u11I IIIII 111111111111111 II I II II I II II I II II I I I II I I I II I I I NI 11111 II I This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. AGREEMENT AFFECTING REAL PROPERTY THIS AGREEMENT AFFECTING REAL PROPERTY is made this fl day of June, 2009, between San Diego Habitat for Humanity, Inc., a California nonprofit corporation ("Developer"), and the Community Development Commission of the City of National City ("CDC"). A. Developer is the owner of that certain real property located in the City of National City, County of San Diego, State of California, described in Exhibit "A" attached hereto and made a part hereof (referred to herein as the "Property"). B. Developer has acquired the Property from the CDC pursuant to that certain Development and Disposition Agreement dated October 7, 2008 ("DDA"), in furtherance of the Redevelopment Plan for the National City Redevelopment Project ("Redevelopment Plan"), adopted by Community Development Commission of the City of National City on July 18, 1995. One of the components of the Redevelopment Plan for the National City Redevelopment Project, adopted by Community Development Commission of the City of National City on July 18, 1995, is to provide affordable housing opportunities for households earning one eighty percent (80%) or less of the area medium income, adjusted for family size and revised annually by the U.S. Department of Housing and Urban Development for the San Diego Metropolitan Statistical Area. C. In order to further assist in the development of below market rate affordable housing, the CDC and Owner have agreed to enter into this Agreement Affecting Real Property to be covenants, conditions and restrictions and equitable servitudes running with the land with respect to the Property. 1 H:\Construction, Acq.Rehab Projects\Habitat for Humanity\G Avenue\Documents\Final Documents\AARP vi.doc 7917 NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, CDC and Developer hereby agree and declare as follows and each subsequent owner of the Property and their successors are deemed to covenant and agree, that the Property shall be held, sold and conveyed subject to the following covenants and conditions which shall run with the land and be binding on all parties having any right, title or interest in the Property, their respective heirs, legatees, devisees, administrators, executors, successors and assigns, and shall inure to the benefit of the CDC, its successors and assigns: 1. Construction of Affordable Units. Under the terms of the DDA, Developer is obligated to construct on the Property a total of eight (8) two-story for -sale townhomes (the "Affordable Units"), as set forth in more detail therein. No other dwelling units will be constructed on the Property. 2. Definitions. The following terms shall have the following meanings: (a) Area Median Income. "Area Median Income" shall mean the area median income defined by the Department of Housing and Urban Development (HUD) as the then current area median income for the San Diego Standard Metropolitan Statistical Area, established periodically by HUD and published in the Federal Register, as adjusted for family size. In the event HUD ceases to publish an established area median income as aforesaid, CDC may, in its sole discretion, use any other reasonably comparable method of computing area median income. (b) Low Income Household. "Low Income Household" means persons and families whose income does not exceed sixty percent (60%) of the then current Area Median Income, provided that such persons or families meet the additional requirements set forth in Section 4 of this Agreement Affecting Real Property. (c) Maximum Sales Price. "Maximum Sales Price" shall mean the maximum amount of consideration, of any kind whatsoever, that the Developer may receive for any Affordable Unit, which amount shall not exceed the lesser of: (i) the sum of (A) the purchase price which would result in a Monthly Housing Cost, as determined by the CDC, which does not exceed the product of one twelfth (1/12) of thirty percent (30%) times sixty percent (60%) of the then Area Median Income as adjusted for household size appropriate for the unit, plus (B) the amount of the Developer Note assumed by the Low Income Household that purchases such Affordable Unit; or (ii) the Single Family Mortgage Limit for the County of San Diego under Section 203(b) of the National Housing Act (12 U.S.C. §1709(b)) or any other limitation then provided by Code of Federal Regulations §92.254(a) or any successor law or regulation. 2 H:\Construction, Acq.Rehab Projects\Habitat for Humanity\G Avenue \Documents\Final Documents \AARP vl.doc 7918 3. Covenants Concerning Sales of Affordable Units and HUD HOME Program. Developer represents and warrants to the CDC that Developer shall sell the eight (8) Affordable Units (all of the units at the Property) only to Low Income Households for an amount that does not exceed the Maximum Sales Price and that future sales of the Affordable Units for a period of 45 years shall be only to Low Income Households for an amount that does not exceed the Maximum Sales Price. The Affordable Units will be restricted for twenty (20) years from initial occupancy under the HUD HOME Program, Redevelopment Plan and the California Community Redevelopment Law. In the event of conflict during such 20 year period between the statutes, provisions or regulations of the HUD HOME Program, Redevelopment Plan or the California Community Redevelopment Law, the HUD HOME Program shall apply. Thereafter, the Affordable Units will be restricted for the remainder of the term under the Redevelopment Plan and the California Community Redevelopment Law. Developer shall comply with all regulations, policies and procedures promulgated by HUD, or the CDC in connection with the HOME Program, including without limitation all applicable provisions of 24 CFR Part 92. Developer's failure to so comply shall constitute a material default hereunder. 4. Additional Definition of Low Income Households. (a) No Relationship With Developer. The term Low Income Household shall not include any person employed by Developer, or any individuals who are members, principals, officers, directors, partners, employees, agents or shareholders of Developer, or any entity having an ownership interest in the Property or in any Affordable Unit. (b) No Full -Time Students. The term Low Income Household shall not include any person who is a full-time student, or a household comprised exclusively of persons who are full-time students, unless such persons are married and eligible to file a joint federal income tax return. The term "full-time student" shall be defined as any person who will be or has been a full-time student during five calendar months of the calendar year in question at an educational institution (other than a correspondence school) with regular faculty and students. (c) No Student Dependents. Notwithstanding the provisions of subparagraph 4(b), the term Low Income Household shall not include any student dependent as defined in the U.S. Internal Revenue Code, unless the taxpayer (upon whom the student in question is dependent) will reside in the same Affordable Unit. (d) No Owners of Real Property. The term Low Income Household shall not include any person or any household comprised of one or more persons who own real property. (e) Liquid Asset Limitation. The term Low Income Household shall not include any person or household holding, directly or indirectly, liquid assets whose aggregate value exceeds, at the time of determination of eligibility, one hundred percent (100%) of the then -current annual Area Median Income. As used herein, the term "liquid assets" refers to cash and assets which are readily convertible to cash within a reasonable period, including but not limited to savings and checking accounts, certificates of deposit of any term, marketable securities, money market and similar accounts, mutual fund shares, and insurance policy cash values. The term "liquid assets" shall not 3 H:1Construction, Acq.Rehab Projects\Habitat for Humanity\G Avenue\Documents\Final Documents\AARP vl.doc 7919 include retirement funds which are not readily accessible or which cannot be accessed by the buyer without the buyer incurring a penalty. (f) Income of Co -Purchasers. The income of all co -purchasers and/or occupants shall be taken into account in determining whether a household is a Low Income Household. (g) Principal Place of Residence. A purchaser of an Affordable Unit shall not qualify as a Low Income Household, unless that purchaser agrees to reside in the Affordable Unit as such purchaser's principal place of residence during the entire period that the Affordable Unit is owned by such purchaser. 5. Release and Termination. The CDC shall partially release and terminate this Agreement Affecting Real Property, with respect to each Affordable Unit, upon the last to occur of: (i) the sale of the Affordable Unit; (ii) the Low -Income Household's execution of the First -Time Homebuyer Note, as defined in the DDA; (iii) the recordation against the individual Affordable Unit of the Resale Restriction, as defined in the DDA; and (iv) the recordation against the individual Affordable Unit of the deed of trust securing the First -Time Homebuyer Note and the Resale Restriction. 6. Foreclosure by Court Action. The CDC may in its sole and absolute discretion foreclose the lien created hereby by foreclosing on the Deed of Trust securing this Agreement Affecting Real Property or by court action in the manner provided by the laws then applicable to this Agreement Affecting Real Property, in either case the Developer agrees to pay all costs and expenses thereof, including reasonable attorneys' fees as the court may determine. 7. Notices. Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and will be effectively served upon personal delivery or, if mailed, no later than 48 hours after deposit in first class or certified United States mail, postage prepaid, sent to: To CDC: To Developer: Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4397 San Diego Habitat for Humanity, Inc. 10222 San Diego Mission Road San Diego, CA 92108 which addresses may be changed by written notice. 4 H:1Construction, Acq.Rehab Projects\Habitat for Humanity\G Avenue\Documents\Final Documents\AARP vl.doc 7920 8. Standing, Equitable Remedies; Cumulative Remedies. Developer expressly agrees and declares that the CDC or its successors shall be the proper party and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such a default may have actually been suffered by some other person or by the public at large. Further, Developer expressly agrees that receivership, injunctive relief and specific performance are proper pre-trial and/or post -trial remedies hereunder, and that, upon any default, and to assure compliance with this Agreement Affecting Real Property. Nothing in this paragraph, and no recovery to the CDC, shall restrict or limit the rights or remedies of persons or entities other than the CDC, against Developer in connection with the same or related acts by Developer, the Property or this Agreement Affecting Real Property. 9. General Provisions. (a) Integration. The undersigned, and each of them, acknowledge and represent that no promise or inducement not expressed in this Agreement Affecting Real Property has been made in connection with this Agreement Affecting Real Property. This Agreement Affecting Real Property contains the entire agreement and understanding between the parties as to its subject matter. (b) Waiver and Amendment. No provision of this Agreement Affecting Real Property, or breach of any provision, can be waived except in writing. Waiver of any provision or breach shall not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or other provision. Except as otherwise provided herein, this Agreement Affecting Real Property may be amended, modified or rescinded only in writing signed by Developer and the CDC. (c) Time of Essence. Time is expressly declared to be of the essence in this Agreement Affecting Real Property, and of every provision in which time is an element. (d) Captions. Paragraph titles and captions contained in this Agreement Affecting Real Property are inserted as a matter of convenience and for reference, and are not a substantive part of this Agreement Affecting Real Property. (e) Further Assurances. The parties each agree to sign any additional documents, which are reasonably necessary to carry out this Agreement Affecting Real Property or to accomplish its intent. (f) Benefit and Burden. This Agreement Affecting Real Property shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns. This Agreement Affecting Real Property is not intended to benefit any person other than the parties hereto. (g) Governing Law. This Agreement Affecting Real Property has been entered into in the State of California, and shall be interpreted and enforced under California law. 5 H:1Construction, Acq.Rehab Projects\Habitat for Humanity\G Avenue\Documents\Final Documents\AARP vi.doc 7921 (h) Attorneys' Fees. The prevailing party in any action, including, but not limited to, arbitration, a petition for writ of mandate, and/or an action for declaratory relief, brought to enforce, interpret or reform the provisions of this Agreement Affecting Real Property shall be entitled to reasonable attorneys' fees and costs (including, but not limited to, experts' fees and costs and trustee's fees, and including "costs" regardless of whether recoverable as such under statute) incurred in such action. (i) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement Affecting Real Property are hereby incorporated in this Agreement Affecting Real Property by this reference, regardless of whether or not the exhibits are actually attached to this Agreement Affecting Real Property. The Recitals to this Agreement Affecting Real Property are hereby incorporated in this Agreement Affecting Real Property by this reference. (j) Signatures. This Agreement Affecting Real Property may be signed in counterparts. All individuals signing this Agreement Affecting Real Property for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the CDC that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. CDC: Community evelopment Commission of the City of National City By: Print ame: Ron Morrison Its: Chairman APPROVED AS TO FORM: er F. S Special Counsel to DEVELOPER: San Diego Habitat for Humanity, Inc., a California nonprofit corporation s By: Print Name:_Michael Malone (J,v.x. &J(,d iwa,w,s- Its: _Executive Director 6 II:\Construction, Acq.Rehab Projects\Habitat for Humanity\G Avenue\Documents\Final Documents\AARP vl.doc 7922 State of Califomia County of San Diego ) ) ) ACKNOWLEDGMENT personally appeared 1K- L ONE basis of satisfactory evidence to be the person whose namXs afe-subscribed to the within instrument and acknowledged to me tha/sheALIP.,y executed the same i hi /d#tkeir authorized capaci'ees), and that b /h .rye=signature on the instrument the persons), or the entity upon behalf of which the person -CO -acted, executed the instrument. On , 2000 before metu� �� N i Pit.; is—k t i , A N c t� who proved to me on the � I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ��` (Seal State of California County of San Diego ) ) ) ACKNOWLEDGMENT CAROLYN JANE SOLLMAN Commission # 1776907 Notary Public • California 1 Pan 0NO0 County - - - --ANCommealMsOa30.2D11 � On 3uWG 22 ,200/before me, MiC/,A4. °AL41 - C/71' c Laic personally appeared 1 o,J µaL..Al s o 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Se 7 H:\Construction, Acq.Rehab Projects\Habitat for Humanity\G Avenue\Documents\Final Documents\AARP vl.doc EXHIBIT "A" LEGAL DESCRIPTION ORDER NO.: 126747 ESCROW NO.: 1820 G Ave 7923 The land referred to herein is situated in the State of California County of San Diego, and described as follows: Lots 16, 17, 18, 19 and 20 in Block 3 of the subdivision of W.S. Bullis, of Ten Acre Lot Fourteen, in quarter section 153, of the Rancho De La Nacion, in the City of National City, County of San Diego, State of California, according to Map thereof No. 201, filed in the office of the county recorder of said San Diego County, May 27, 1881. Also that portion of the westerly 10 feet of "G" Avenue adjoining the above -described property on the east as vacated. File Number: 126747 Exhibit A legal Description Title Page 1 of 1