HomeMy WebLinkAbout2007/07/17 Item 13
CITY COUNCIL
AGENDA STATEMENT
~~f:. CITY OF
~ ~ ~~ (HULA V1SfA
Item No:~
Meeting Date: 7/17/07
ITEM TITLE:
PUBLIC HEARING: Consideration of application PCS 05-06; for the
proposed conversion of the existing 124-unit 307 Orange Avenue
apartment complex to 124 condominium units for individual
ownership - WGA Orange Avenue, P.P.
RESOLUTION: of the City Council of the City of Chula
Vista approving and establishing conditions of a Tentative Subdivision
Map to divide interest in 3.48 acres at 307 Orange Avenue for a One-
Lot Condominium containing 124 residential units, approving
concessions pursuant to the density bonus law for the reduction in
certain development standards.
SUBMITTED BY:
RESOLUTION: of the City Council of the City of Chula
Vista approving the affordable housing agreement between the City and
WGA Orange, L.P., establishing conditions of 41 affordable units for
moderate income households at 307 Orange Avenue and authorizing
the City Manager to execute the agreement.
""~,~ ,fP1="" =I B,ddj" f'"
City Manager ~ M k/
Acting ASSist~~6Manager 'S--J"
REVIEWED BY:
4/5THS VOTE: YES
NO_X_
This is a request to convert a 124-unit apartment complex into 124 condominium units for
individual ownership. Pursuant to Government Code Section 65915.5, the applicant will enter into
an affordable housing agreement with the City to provide 33 percent (41 units) of the total number
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of units to persons and families of moderate income. In exchange for providing these 41 affordable
units, the applicant is requesting concessions from certain multi-family development standards
including reductions in on-site parking and open space.
ENVIRONMENTAL REVIEW
Environmental Status: The Environmental Review Coordinator has reviewed the proposed
project for compliance with the California Environmental Quality Act (CEQA) and has
determined that the project qualifies for a Class I (existing facilities) categorical exemption
pursuant to Section 15301 of the State CEQA Guidelines. Thus, no further environmental review
is necessary.
RECOMMENDATION
Approve Tentative Subdivision Map Tract 05-06 in accordance with the findings and subject to the
conditions contained therein.
BOARDS/COMMISSION RECOMMENDATION
On April 17, 2006, the Design Review Committee approved the project (4-0-0-1) (Magallon
absent) subject to approval ofthe Tentative Map.
On February 14, 2007, the Planning Commission considered the Tentative Subdivision Map to
allow 124 apartments to be converted to condominiums. The Commission discussed the various
provisions of providing affordable housing and the homebuyer/relocation assistance program
being provided by the applicant. As a result of this discussion, the applicant agreed to increase
the amount of such provisions, including: increasing the timeframe for providing a $500
relocation assistance expense from five days to ten days in advance of tenants moving out and
extending this $500 stipend to include buyers of the units as well. In addition, the tenants
security deposit is to be returned thirty days prior to vacate date. The Commission also discussed
the pros and cons of a proposed condition requiring the developer/owner to install a sewer
manhole at the point of connection to the City sewer main drain for a particular sewer lateral.
The Commission then voted to keep this condition as presented in the draft City Council
Resolution (see Condition A30) and voted (6-1) to recommend that the City Council approve the
project. Commissioner Spethman voted against the motion.
DISCUSSION
This is a request to convert apartments into condominium units. The City worked extensively
with the applicant in preparation for their application to convert. The project does not meet the
development standards required for a conversion. Therefore, the applicant has applied for
development standard concessions under State Density Bonus Law. (SDBL) in exchange for
providing moderate income affordable units. Pursuant to Government Code Section 65915.5
(SDBL), the applicant must provide 33 percent (41 units) of the total number of units to persons
and families of moderate income. City staff has been working with the applicant to negotiate
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Meeting Date: 7/17/07
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terms of an affordable housing agreement. Both the applicant and City staff are ready to propose
the agreement at this time as well. The affordable requirements are addressed more fully later in
this report.
Proiect Site Characteristics
The site is a trapezoidal shaped, level, 3A8-acre lot with an existing apartment complex located
at 307 Orange Avenue. The existing uses adjacent to the site are listed in the following table:
Table I: Zoning and Land Use
General Plan Zoning Existing Land Use
Site Residential High R-3-P Apartment Complex
Apartment
Residential
North Single-family, R-l Existing Single
detached Single family Family Homes
residence
East Retail Commercial CC Gasoline service
Central Commercial station (BestMart
Gas & Mini Mart)
South Open Space Mobile Home Park Storm Water
Drainage Channel
West Civic Uses R-2-P Vacant land adjacent
to South Chula Vista
Library parking
Vacant / SDG&E
Public Utilities S-94 utility corridor
Proiect Description
The complex consists of 96 two-bedroom units and 28 one-bedroom units in a total of seven
buildings. The I-BRll bath units are 540 SF in size, while 2-BR/I bath units are 760 SF, and 2-
BR/2 bath units are 785 SF. The buildings types and number of units each type contains are
summarized in the following table:
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Table 2: Building Types and Units
Building Type No. of Stories No. of No. of Total No.
Buildings Units/Bldg of Units
A 2-story 2 24 2-BR 48
B I-story 2 42-BR 8
C 2-story 2 20 2-BR 40
D 2-story I 28 I-BR 28
Total 124
Although no significant exterior structural changes are proposed to the existing proj ect, the
applicant proposes to upgrade both the interior and exterior of the units, add community
amenities, and refresh the landscaping. Exterior improvements include new paint and additional
architectural detailing on the buildings, roof replacement, installing a tot lot and play structure,
repairing and replacing all driveways and walkways where needed, adding carports, and
refreshing and supplementing the landscaping where needed. Interior upgrades include new
carpeting and bathroom tiling; replacement of bathroom cabinets and refmishing tub/shower
enclosures; new texture and paint on all walls and ceilings; washer/dryer in each unit; and all air
conditioning units, lighting fixtures, and electric appliances to be replaced. (Attachment 4 is a
complete list of the Applicant's proposed interior and exterior improvements.) Storage space for
124 units is proposed in storage cupboards inside new carports. The units are already served by
separate electric meters, while gas, water, and sewer will be the responsibility of the
Homeowners Association. The Applicant proposes to set aside 41 on-site dwelling units that
would be restricted for 30 years to moderate income affordable tenants (see affordable Housing
Provision Section below).
The project is an existing legal non-conforming apartment complex originally approved and
developed under County regulations. As a result, there are some issues regarding deficiencies in
the amount of parking and open space, width of drive aisles, ratio of compact to regular parking
spaces, and one setback along the front property line.
Affordable Housing Allowances for Deviations from Development Standards
Pursuant to Government Code Section 65915.5 (Attachment 8), the Applicant proposes to
provide 41 units of on-site affordable housing for moderate income persons and families in
exchange for concessions from City standards on the parking area, open space, and the front
building setback. The requested deviations are more specifically described in the following table:
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a e : e ueste eVlatlons
Item Code Requirement Proposed Requested
Deviation
Parking Spaces 234 Total spaces 192 Total spaces Deficiency of 42 parking spaces
Percent of Compact 10% (19 spaces out 71 % (136 spaces out Increase of 600%
Spaces of the 192 spaces) of the 192 spaces)
Width of 24 ft. 24 ft., 20-ft., 22ft. Deficiency of 4 ft in the rear
Drive Aisles (south), 2 ft. on the side (east).
Open Space 49,600 sq. ft. 42,713 sq. ft. Deficiency of 6,887 sq. ft.
Front Building 15 ft. 8.8 ft. Deficiency of 6.2 ft.
Setback
Storage Space 200 cu. ft. 183 cu. ft. Deficiency of 17
2- BR unit (For 56 out of the total cu. ft. in 56 units
124 units)
T bl 3 R d D
The project also has a deficiency of 17 cubic feet of storage space for 56 of the units. Per CYMC section
15.56.070, in considering tentative maps for condominium development and evaluating the manner in
which storage space is provided, the Planning Commission may recommend and the City Council may
approve departures from the stated standards after review of each proposal.
Table 4: Project Data
REQUIRED PROVIDED
Parking:
234 Spaces total 63 Open stalls
1.5 spaces / I-BR unit 124 Covered stalls (carports)
2.0 spaces / 2-BR or more unit 5 Handicapped spaces
192 Total Spaces
(deficiency of 42 parking spaces)
Lot Coverage: 50 % 41 % (includes carports)
Setbacks:
Front: IS ft. 8.8 ft. (Deficiency of 6.2 ft.)
Exterior Side Yard: lOft. Not applicable
One Interior Side Yard: 5 ft. Not applicable
Both Interior Side Yards: 10 ft. 37 ft.
Rear: IS ft. 50 ft.
Storage:
ISO cu. ft. / I-BR unit 176 cu. ft. / 1- BR unit
200 cu. ft. / 2- BR unit For 40 units, 247 cu. ft. / 2- BR unit
For 56 units, 183 cu. ft. / 2- BR unit
(deficiency of 17 cu. ft. on 56 2- BR units)
Onen Space Requirement: 49,600 SF 42,713 SF
(400 SF per I or 2-BR unit x 124 units) Deficiency; 6,887 SF
Building Height: 28 feet or 2.5 stories 23 feet
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Analysis:
Noticing Documentation
Pursuant to Section 66452 of the Subdivision Map Act, condominium conversion projects must
satisfy certain noticing requirements. The applicant has completed the tenant noticing required by
the State and by the Municipal Code prior to Tentative Map consideration, including "Form A",
the "60-Day Notice to All Existing Tenants of Intent to convert"; and "Form B", the "Notice to all
Prospective Tenants of Intent to Convert". Table 5 below identifies the noticing requirements and
when existing and prospective tenants should receive them. The tenants have been aware of the
condominium conversion project proposal since Form A was sent in August of 2003, and will be
given notice of having the first option to purchase a unit. Sample notices provided by the
Applicant are attached (see Attachment 3, Noticing Documentation).
Table 5: Noticing Documentation
NOTICE REQUIREMENT HOW LONG & WHEN COMPLIANCE
60-day notice to all existing tenants 60 days prior to filing a Design 60-day notices were sent
of intent to convert- "Form A" Review and Tentative Map certified mail to eXlstmg
application with the City tenants during August 2003.
Notice to all prospective tenants of Prior to acceptance of any rent Applicant has submitted a
intent to convert - "Form B" or deposit from the prospective current tenant list with copies
tenant of signed forms for all new
tenants.
lO-day notice to all existing tenants 10 days before or after To be determined! Typically
of an application of a Public Report - submittal of the Public Report following Final Map approval
"Form e" to the Department of Real
Estate
10-day Notice to all existing tenants Within 10 days of approval of To be determined! Typically
of Final Map aooroval- "Form D" the Final Map bv the City following Final Map approval
Notice to all prospective tenants of Prior to acceptance of any rent To be determined prior to
option to purchase/termination of or deposit from the prospective approval of Final Map
tenancy-"FonnE" tenant
90-day Notice to all existing tenants For a period of 90 days after To be determined prior to
of option to purchase/termination of issuance of the Public Report approval of Final Map
tenancy - "Form F" from the Department of Real
Estate
180-day notice to all existing tenants 180 days prior to termination of To be determined prior to
of intent to convert/termination of tenancy approval of Final Map
tenancy - "Form 0"
Property Condition Assessment Report
Because the apartment complex is more than five years old, the Applicant has prepared a "Property
Condition Assessment Report", which states that the property appears adequately maintained and
is in overall good condition, with some defects noted. Items recommended for immediate repairs
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Date, Item No.: 13
Meeting Date: 7/17/07
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included cracking of the entry drive pavement and adjustments to the irrigation system's spray
pattern. Recommended short term and intermediate term iterns, due to aging, included
replacement of the roof, air conditioning units, hot water heaters, and kitchen appliances. The
report concluded with the opinion that subject to a continued program of sustained preventative
maintenance, the remaining economic life of the property should exceed 35 years. The report's
recommendations that would upgrade the property and units (see Attachment 5, "Property
Condition Assessment Report - Executive Summary") have been incorporated into the Tentative
Map conditions of approval.
Table 6 below lists the existing services utilities within the project and what is proposed under the
Tentative Map.
Individual meters - central wiring
system.
Water Common
Sewer Common
*Cable Individual unit.
*Tel hone Individual unit.
"Not covered in the ROA
The maintenance and montWy payment of the utilities will be addressed in the project's CC&Rs. The project is
conditioned to meet current Fire Code requirements, including one-hour frrewalls, smoke detectors and flIe
extinguisheIs, and be inspected and approved by the Fire Department. Gutters and downspouts must be provided on
all buildings to prevent water stains and mildew on exterior walls.
Table 6: Utilities
UTILITY
Air conditionin
Heatin
Water heaters
EXISTING CONDITION
Individual electrical- owered units.
Individual electrical- owered units.
Individual gas water heaters for
each building (7 total) and
centralized solar heater (non-
o erational.
Gas meter for each building (7
total)
Gas
Electric meter
HomebuverlRelocation Assistance:
PROPOSED CONDITION
R lace with new in each unit.
R lace with new in each unit.
Replace gas water heaters for
each building (7 total); remove
non-operational solar heater
s stem.
Condition of meters should be
evaluated by the corresponding
gas company serving the
com lex.
No change proposed.
No chan e
No chan e
No chan e
No change
A meeting/workshop will be organized by the Applicant, to be held within a week after approval
of the Tentative Map by City Council, to include all current tenants; representatives from the
property management company and developer; a mortgage broker; and a representative from the
City ofChula Vista.
The developer will offer to any interested tenant a $5,000 discount on their unit as an incentive to
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purchase. The discount will be offered only for those tenants who purchase a unit at the 307
Orange Avenue project (See Attachment 6, Homebuyer and Relocation Assistance letter). A
mortgage broker will be present to help those who wish to purchase their unit. The broker will
hold a workshop on how tenants can pre-qualify for a mortgage and become homeowners.
The applicant will assist with the relocation of those tenants who prefer not to purchase their
units. Relocation expense assistance of $500 will be paid to the tenants ten days in advance of
their moving out, and relocation information and assistance to help secure other rental housing
will be provided by the Project's property management company. Recent condominium
conversions have shown that issues can arise regarding the particulars of tenant relocation
assistance. Staff believes that for this project, all the basic components are in place; however,
further details may be needed. Staff has included a condition of approval requiring that the
applicant work with Staff on these further details and also provide evidence that the requirements
of the Applicant's homebuyer and tenant relocation assistance program (see Attachment 3) has
been satisfied prior to approval of the final map.
At the Planning Commission meeting of February I 4, 2007, the Planning Commission negotiated
with the applicant to extend the amount of homebuyer/relocation assistance provided.
Relocation expense assistance is now to be provided 10 days in advance of moving out and the
tenants security deposit is to be returned 30 days prior to vacate date. The $500 stipend is now to
be provided to buyers as well. Condition # B8 of the draft City Council Resolution has been
modified to reflect the additional assistance being required by the applicant, as agreed to at the
February 14, 2007 Planning Commission meeting.
Affordable Housing Provision
Pursuant to Government Code 65915.5 (see Attachment 8), when an applicant for approval to
convert apartments to a condominium project agrees to provide at least 33 percent of the total
units to persons and families of moderate income, the City shall either grant the project a density
bonus or provide other incentives of equivalent fmancial value. These incentives do not require
monetary compensation but may include the reduction or waiver of requirements that the City
might otherwise apply as conditions of conversion approval.
In exchange for providing 41 units restricted for 30 years to moderate income affordable tenants,
the subject application's "other incentives" are reductions in City requirements for (1) the
parking area with its substandard drive aisle widths, ratio of compact to regular parking spaces,
and shortfall of 42 required parking spaces; (2) deficiency of 6,887 square feet of open space;
and (3) a front yard setback of 8.8 feet instead of 15 feet for one building on the property; (4)
deficiency of 17 cu. ft. of storage space for each 56 2-bed units. The proposed project is
conditioned to provide the stated affordable housing units in exchange for the concessions on
City requirements and also conditioned on the City and the Developer entering into an approved
Affordable Housing Agreement. The Affordable Housing Agreement is included as Attachment
8 for review at this time. The agreement dictates the maximum sales prices and qualifying
income levels for the affordable units. The process for moderate income buyers will be similar
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to other affordable for-sale projects within the City, and will be subject to the City Affordable
For-Sale Policy.
Municipal Code Requirements:
A condominium conversion project must satisfy certain City requirements including current
zoning, which is R-3-P, the Chula Vista Design Manual, and the Chula Vista Municipal Code
(CVMe) requirements, which include off-street parking, open space, and condominium
conversion regulations per City ordinance. The following sections discuss how the project
complies with these requirements.
Open Space -- Common Open Space:
CYMC Section 19.28.090 requires 400 square feet of common usable open space per I-bedroom
or 2-bedroom unit; therefore, the project must provide a minimum of 49,600 square feet of open
space. The minimum dimension for any area to be considered as open space is six feet, with a
minimum area of 60 square feet. As seen on the Site Plan (Attachment 2), the project provides
42,713 SF of open space, which is a deficiency of 6,887 SF. Private open space totaling 1,190
SF is proposed by the applicant, consisting of an existing 42.5 square foot balcony for 28 of the
units located upstairs. These balconies do not meet the minimum size standards of the Zoning
Ordinance (60 SF for area, 6 feet for dimension) and therefore are not eligible for inclusion in the
open space total. No other private open space is provided for the remaining 96 units.
As shown in Table 7 below, open space amenities include 37,475 SF of turf and landscaped
areas, a 2,238 SF tot lot, a 2,400 SF concrete deck area with a swimming pool (18' x 35'), a 300
SF gym room, and a 300 SF club house/recreation room. The gym room is being converted from
an existing rental office, while the club house/recreation room is being converted from an
existing laundry room. Staff has concerns how these two separate buildings, with dimensions of
10' by 30', will accommodate the intended recreation facilities. The Applicant has not provided
further information regarding the internal layout for these recreation facilities.
Table 7: Proiect Onen Snace
REQUIREMENT PROPOSED
49,600 SF 42,713 SF*
400 SF/unit x 124 units Common onen space = 46,326 SF
37,475 SF turf and landscaping
2,238 SF tot lot
2,400 SF pool and concrete deck
300 SF gym room
300 SF club house/recreation room
Deficiencv = 6,887 SF
Private open space = 1,190 SF**
* Does not include private open space of 1,190 SF.
** Does not meet city requirement for minimum area and dimensions so is not included in total.
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Date, Item No.: 13
Meeting Date: 7/17/07
Page 10 of 13
Pursuant to Govemment Code Section 65915.5, the Applicant is requesting a concession from
City standards for the deficiency in the Open Space requirement, as there is no underutilized
ground space on the subject parcel for additional open space. Staff supports allowing the
requested deviations in partial exchange for the guarantee of 41 units of onsite housing
affordable to moderate income tenants.
Conversion of Dwelling Units to Independent Ownership (CVMC Chapter 15.56):
Pursuant to Chapter 15.56, Conversion of Dwelling Units to Independent Ownership, apartments
converted to condominiums for sale must address the following issues: parking, adequate storage
for each unit, common useable open space areas, and must satisfy fire and Uniform Building Code
standards before occupancy.
Per CYMC 15.56.070, in considering tentative maps for condominium development and
evaluating the manner in which storage space is provided as required by CYMC 15.56.020(C),
the Planning Commission may recommend that the City Council approve departures from the
stated standards after review of each proposal. Departures shall be based on the merits of the
individual project when good cause can be shown. The merits of this project are its provision of
41 units of onsite affordable housing for moderate income persons or families.
A. Fire Protection: Four on-site fire hydrants are located on the site, at each of the four comers
adjacent to the parking lot and buildings. The project must provide upgraded fire
extinguishers and smoke alarms. The project is also conditioned to comply with current
fire protection requirements.
B. Uniform Building Code: The Building Department has reviewed the "Property Condition
Assessment Report" prepared by the JCEP/Huang Consulting Engineers, Inc. and the
Supplemental Report by Land America Commercial Services and found that the Project
will satisfy the Building Code requirements if the recommended improvements are
constructed or put in place. These requirements are generally described in the Property
Condition Assessment Report Executive Sununary (Attachment 5), and implementing
conditions of approval specified in the attached City Council Resolution.
C. Storage: Section 15.56.020 requires adequate storage area for each unit. One-bedroom units
require 150 cu. ft. of storage, while two-bedroom units require 200 cu. ft. As seen in the
sununary table below, the storage provided for the project's 28 one-bedroom units is 176
cu. ft., which is an excess of 26 cu. ft. Each unit will have a 144 cu. ft. storage cupboard
within a carport in the parking lot, and 32 cu. ft. of storage within the dwelling unit.
The storage provided for the project's 96 two-bedroom units varies. Forty of the units (2
BR/2 bath) provide 247 cu. ft. of storage, which is an excess of 47 cu. ft. Each 2 BR/2 bath
unit has a 144 cu. ft. storage cupboard within a carport in the parking lot, and 103 cu. ft. of
storage within the dwelling unit.
The project's 56 2-BR/1bath units provide only 183 cu. ft. of storage, which is a deficiency
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Meeting Date: 7/17/07
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of 17 cu. ft. Each 2-BR/l bath unit has a 144 cu. ft. storage cupboard within a carport in
the parking lot, and 39 cu. ft. of storage within the dwelling unit.
No. of No. Storage Storage Total Total Overage I
bedrooms of within in carport storage required deficiency
units unit per unit per unit per unit per unit
1 28 32 c.f. 144 c.f. 176 c.f. 150 d. + 26 c.f.
2 wI 1 bath 56 39 d. 144 d. 183 d. 200 c.f. - 17 c.f.
2w/2bath 40 103 c.f. 144 c.f. 247 c.f. 200 c.f. + 47 c.f.
Total 124
Table 8: Storage Summary Table
Per CYMC section 15.56.070, in considering tentative maps for condominium
development and evaluating the manner in which storage space is provided, the Planning
Commission may recommend and the City Council may approve departures from the stated
standards after review of each proposal. Departures shall be based on the merits of the
individual project when good cause can be shown. In this case, the Planning Commission
recommended such a departure.
D. Housing Code: The Project is required to conform to Uniform Housing Code requirements
in existence at the time of the approval of the Subdivision Map. The project has completed
a housing inspection and is required by condition of approval to correct any deficiencies
prior to Final Map approval.
E. Protective Lighting Standards: Lighting information has been conditioned to be submitted
as part of the building permit application.
F. Off-street parking: CYMC 19.62.050 Regulations require 1.5 parking spaces for each 1-
bedroom unit and 2 parking spaces for each two-bedroom or larger sized unit. The project
requires 234 off-street parking spaces - 42 spaces for the 28 ene-bedroom and 192 parking
spaces and 96 two-bedroom units - but is deficient by 42 spaces. The Project provides 192
parking spaces for residents' use, including 51 standard-sized parking spaces, 136 compact
spaces, and 5 handicapped spaces. 124 of the total 192 parking spaces will be covered
carports, as indicated on the Carport Plan (Attachment 2). There is on-street parallel
parking on Orange Avenue adjacent to the project; field observation by staff indicates these
spaces are fully utilized in the evening hours, although the ownership percentage of these
cars by residents of307 Orange Avenue is not known.
Per CYMC 19.62.050 (13), for every 10 parking spaces required, one of this total may be a
"compact' space," i.e., 10% of the parking may be provided by compact parking spaces.
The proposed project includes 136 compact parking spaces, which represents 71 % of the
parking spaces provided, and 58% of the required parking. The parking drive aisles range
from 20 to 24 feet wide, which are more narrow than the City's requirement of 24 feet.
The western entry driveway and drive aisle is 24 feet wide. Half the length of the western
drive aisle serves single-loaded standard parking stalls, while the remaining length is
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Meeting Date: 7/17/07
Page 12 of 13
double-loaded. The eastern entry driveway is 24 feet wide, with a 22 feet wide drive aisle
serving single-loaded compact parking stalls. The remaining parking areas have drive
aisles of22 feet or greater, except for a parking bay of 16 stalls with a drive aisle of 19 feet.
(See Attachment 2 Site Plan for the marked dimensions.) Handicapped parking stall
dimensions are in conformance with ADA requirements.
Pursuant to Government Code Section 65915.5, the applicant is requesting relief from the
deficiency in the number of required parking spaces, the non-conforming drive aisle
widths, and the ratio of compact to regular parking spaces, as there is no available space
on site for additional parking.
G. Design Guidelines: The applicant submitted a Design Review application DRC-05-05 for
the project's design. A public noticed Design Review Committee hearing was held on
April I?, 2006, where DRC-05-05 was approved 4-0-1, subject to approval of the Tentative
Map and the Affordable Housing Agreement. Conditions in the Notice of Decision are
incorporated by reference into the Tentative Map conditions.
H. Separate Service Meters: Each unit has individual electric meters. A Homeowners
Association will be responsible for the gas, water, and sewer service utility meters. The
Applicant shall provide CC&Rs prior to final map approval showing how this will be
satisfied.
I. Housing Compliance Survey: The Applicant has completed a Housing Code compliance
survey and a condition of approval is included requiring the applicant to correct any
violations prior to Final Map approval.
J. The applicant submitted a "Property Condition Assessment Report" and supplemental
report for review by the City's Building Official. The report concludes that the existing
apartment complex is in good condition, structurally and cosmetically. However, the
assessment identifies inunediate repairs and short-term intermediate repairs. Staff has
included the report recommendations as conditions of approval in the draft City Council
Resolution.
K. CC&Rs: The Project is conditioned to provide evidence of declarations of covenants,
conditions and restrictions in conjunction with approval of the Final Map.
CONCLUSION:
Based on the above, staff recommends the City Council approve Tentative Subdivision Map,
Chula Vista Tract 05-06 and the associated Affordable Housing Agreement based on the findings
and subj ect to the conditions contained in the attached draft City Council Resolutions.
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Meeting Date: 7/17/07
Page 13 of 13
DECISION-MAKER CONFLICTS:
Conflict:
Staff has reviewed the property holdings of the City Council and has found a conflict, in that
Council member Rudy Ramirez has property holdings within 500 feet of the boundary of the
property which is the subject of this action.
FISCAL IMPACT
The applicant has paid all costs associated with the processing of the proposed tentative
subdivision and will be responsible for paying corresponding Development Impact Fees and
other applicable development fees, as they may be amended from time to time.
ATTACHMENTS
1. Planning Conunission Resolution and Minutes for February 14, 2007
2. Figures
3. Noticing Documentation
4. List of Improvements, Repairs and Upgrades
5. Property Condition and Assessment Report
6. Homebuyer and Renter Assistance Program
7. Affordable Housing Agreement
8. Government Code Section 65915.5
9. Disclosure Statement
Prepared by: Jeff Steichen, Associate Planner
13-13
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RESOLUTION NO. PCS-05-06
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION
RECOMMENDING THAT TIm CITY COUNCIL APPROVE A TENTATIVE MAP
TO DIVIDE INTEREST IN 3.48 ACRES AT 307 ORANGE AVENUE FOR A ONE-
LOT CONDOMINIUM CONTAINING 124 RESIDENTIAL UNITS - PREMIER
COASTAL DEVELOPMENT.
WHEREAS, on August 12, 2004, a duly verified application was :filed with the City ofChula .
Vista Planning and Building Department by Westone Management and subsequently superceded by
Premier Coastal Development ("Applicanf'), requesting approval of a Tentative Subdivision Map to
convert 124 apartment units into individually owned condominiums (''Projecf'); and,
WHEREAS, the area ofland which is the subject matter of this Resolution herein consists of
a 3.48-acre lot located 307 Orange Avenue (''Project Site''); and,
WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for
compliance with the California Environmental Quality Act (CEQA) and has determined that the
proposed proj ect qualifies for a Class 1, (Existing Facilities) categorical exemption pursuant to
Section 15301 of the State CEQA Guidelines. Thu, no further environmental review or
documentation is necessary; and,
WHEREAS, the Planning and Building Director set the time and place for a hearing on the
Project, and notice of said hearing, together with its purpose, was given by its publication in a
newspaper of general circulation in the city and its mailing to property owners within 500 feet of the
exterior boundaries of the property, at least 10 days prior to the hearing; and,
WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p.m.,
February 14, 2007, in the Council Chambers in the City Hall, Chula Vista Civic Center, 276 Fourth.
Avenue, before the Planning Commission, and said hearing was thereafter closed; and,
WHEREAS, the Planning Commission having received certain evidence on February 14,
2007, as set forth in the record of its proceedings herein by reference as is set forth in full, made
certain findings, as set forth in theirreco=ending Resolution PCS-05-06 herein, and reco=ended
that the City Council approve the Project based on certain t=s and conditions; and,
NOW, THEREFORE, BE IT RESOLVED THAT THE PLA.NNJ)\[G COMMISSION
reco=ends that the City Council adopt the attached Draft City Council Resolution approving the
Project in accordance with the findings and subject to the conditions contained therein.
BE IT FURTHER RESOLVED THAT the Planning Commission reco=ends the City
Council grant the density bonus pursuant to Gove=ent Code 65915.5 and the associated incentives '
and agree~ent.
.
. ATTACHMENT 1
13-15
BE IT FURTHER RES OL VED TIIAT the Planning Commission reco=ends that the City
Council allow the deficiency of storage spac.e pursuant to Chula Vista Municipal Code Section
15.56.020.
BE IT FURTHER RESOLVED TIIAT a copy of this resolution be transmitted to the City
Council.
PASSED AND APPROVED BY TIIE PLANNING CO:M:MISSION OF THE CITY OF CHULA'
VISTA, CALIFORNIA, this 14th day of February, 2007, by the following vote, to-wit:
AYES:
NOES:
ABSENT:
Chairperson
ATTEST:
Diana Vargas; Secretary
.
.
13-16
MINUTES OF THE
PLANNING COMMISSION
OF THE CITY OF CHULA VISTA
6:00 p.m.
February 14, 2007
Council Chambers
276 Fourth Avenue
Chula Vista, CA
CALL TO ORDER: 6:08:31 PM
ROLL CALL I MOTIONS TO EXCUSE:
Members Present: Felber, Vinson, Moctezuma, Bensoussan, Tripp, Clayton,
Spethman
Staff Members Present: Jim Hare, Assistant Planning Director
Luis Hernandez, Development Planning Mgr.
Danielle Putnam, RBF
Mandy Mills, Housing Manager
Elisa Cusato, Deputy City Attorney III
APPROVAL OF MINUTES: January 24, 2007
MSC (Vinson/Bensoussan) (6-0-0-1) that the Planning Commission adopt the
minutes of January 24, 2007 as submitted. Motion carried with Cmr. Moctezuma
abstaining.
ORAL COMMUNICATION: No public input.
1. PUBLIC HEARING: PCS 05-06; Consideration of a proposal to convert an
existing 124-unit apartment complex located at 307
Orange Avenue to 124 condominium units for
individual ownership. Applicant: Premier Coastal
Development.
Background: Danielle Putnam gave an overview of the project as described in the
staff report, indicating that on August 12, 2004, Weston Management filed an
application for a Tentative Subdivision Map to convert a 124-unit apartment complex
to condominiums for private ownership. In December 2004 the current applicant
(Premier Coastal Development) took over processing of the project and began a
series of meetings with City staff to address issues and deficiencies, project
improvements and revisions. To qualify for incentives under density bonus law, the
applicant proposed the project include 41 housing units affordable to moderate-
income persons and families; therefore, an affordable housing agreement between
the City and the applicant was prepared.
13-17
Planning Commission Minutes
-2-
February 14, 2007
Staff Recommendation: That the Planning Commission adopt resolution
recommending that the City Council approve the proposed Tentative Map in
accordance with the findings and subject to the conditions contained therein.
Commission Comments:
6:37:44 PM Cmr. Vinson inquired who qualifies and monitors the household incomes to ensure
there is compliance with affordable housing requirements.
Mandy Mills, Housing Manager, responded that she monitors and verifies all of the
applicant's income documentation. Additionally, a Silent Second trust deed is
recorded.
Cmr. Benoussan offered the following comments:
. It makes more sense to give a $5,000 credit instead of discounting the unit price
by $5,000.
. Noted that the solar panels will not be replaced with new ones and stated that
perhaps some type of incentive could be offered by the City to encourage the
applicant to install green technology.
. Recommends that no mature vegetation Le. the eucalyptus trees be removed
Ms. Mills responded that the discount helps with the property taxes because they're
calculated based on the property value.
Cmr. Spethman stated that this project will attract first-time homebuyers; young
couples with children, and noted that the project proposes a tot-lot for 3 to 5 year
olds, and inquired if there is any open-space or other recreation space proposed for
older kids.
Chris Duggins, applicant, responded that the project was designed to provide as
much open space as possible. Additionally, the pool and recreation center has a
game room that offers older children additional recreation.
Cmr. Felber asked how much time does the applicant have before a Final Map is
approved.
Ms. Putnam responded they have two years before Final Map approval.
Cmr. Felber asked if the applicant would be willing to move up to 10 days (instead of
5) the $500 relocation assistance to those tenants who choose not to purchase their
units.
Chris Duggins responded that they would be willing to move it up to ten days.
Cmr. Bensoussan inquired if the tenants who wish to purchase their unit would
have any type of relocation assistance while they are waiting for the upgrades to be
done on their unit.
Mr. Duggins stated that they would be willing to add $500 to the discount credit of
$5,000.
13-18
Planning Commission Minutes
-3-
February 14, 2007
Cmr. Spethman asked if it was within the purview of the Planning Commission to
request of a developer or an applicant certain standards for financial incentives on a
project.
Mr. Hare responded that to the extent that an applicant is agreeable to them, they
can be memorialized as Conditions of Approval, however, if the applicant was not
willing to make those concessions, the Commission would have a limited capability
require them. In this particular application, the Commission is charged with making
the necessary findings to recommend approval of the Tentative Subdivision Map for
a proposed condominium conversion project.
Public Hearing Opened.
Chris Duggins, applicant, stated that there is a significant difference of opinion
between the City and the applicant with conditions of approval #32. under Section IX
relating to Sewer. The City is requesting that the developer install a sewer manhole
at the point of connection to the City sewer main and that the sewer laterals be
privately maintained from each condominium building to the City-maintained public
sewer main on Orange Avenue.
Historically, the clogged sewer lateral problems were caused by improper sewage
disposal (paper towels and grease) going down the property's sewer system,
requiring the City to come out and clean them. For this reason, the City Engineer
placed the condition that the developer should install a manhole at the point of
connection to the City sewer main to enable easier access to clean out.
The applicant is proposing that the Homeowners Association have regularly
scheduled maintenance and clean-out of the sewer laterals, and that the HOA
provide on-going education and awareness to the homeowners relating to proper
sewage disposal.
Sylvester Evetovich, Principal Civil Engineer affirmed that they've had discussions
with the applicant regarding the removal of this condition. Upon conferring with the
Public Works Department, they are in agreement with what the applicant is
proposing and agree that the manhole is not necessary so long as the laterals are
maintained and clean-out periodically. They are still crafting appropriate language
that needs to be reviewed and approved by the City Attorneys Office and the
Planning Department.
Cmr. Tripp stated that having served on the GMOC, one of the ongoing discussions
is the need for infrastructure improvements in Western Chula Vista, therefore, he is
a bit perplexed at the position the City is taking in recommending that the
HONresidents put a manhole and maintain their own sewers.
Cmr. Vinson concurred with Cmr. Tripp's concerns and stated that sewage
problems is a public health issue and is not something that should be relegated to be
resolved by private citizens or HOA's.
Mr. Evetovich stated that the sewage system for this complex has and will continue
to be privately maintained. The problem is that whenever there have been sewer
problems, the City crews has to go on site to access the clean-outs within the
13-19
Planning Commission Minutes
-4-
February 14, 2007
buildings where the clog exists. The manhole would allow the City to clean the
sewer system from the street instead of coming onto the complex.
Mr. Duggins further clarified that part of the problem has been that there has been no
scheduled maintenance for clean-out of the laterals that hook-up to the City sewer
system. What is being proposed is that the HOA be required to contract for
scheduled maintenance of these laterals in order to avoid future problems.
Cmr. Spethman echoed the concerns raised by the Commissioners and maintains
that the upkeep of'a problem-free sewer system cannot be passed on to private
citizens.
Cmr. Clayton stated that, in her opinion, nothing is free and someone always must
pay the piper. The incentives and credits that the applicant has graciously agreed
to, as well as the cost for installing the manhole will have a direct impacts on the
housing cost and unfortunately the consumer will end up paying for it. Cmr. Clayton
asked if the applicant had an idea of how much it would cost to install the manhole.
Mr. Duggins stated that they've gotten numbers ranging from $25,000 to $95,000
dollars.
Cmr. Felber stated that, in his opinion, any responsible homeowner seeing that part
of his HOA dues is going toward paying for sewer lateral maintenance, that should
be motivation to ensure that they do their part in not taxing the sewer system with
improper sewage disposal.
Public Hearing Closed.
MSC (TrippNinson) (6-1) that the Planning Commission adopt Resolution PCS
05-06 recommending that the City Council approve the proposed Tentative
Map in accordance with the findings and subject to the conditions contained
therein:
. Upholding Condition IX. 32., which states, "The applicant shall provide a
sewer manhole at the point of connection to the City sewer main...".
. Adding a new condition that reads, "The applicant will provide the refund
of each tenant's security deposit not less than 30 days prior to their
relocation and shall provide relocation assistance of $500 paid to tenants
not less than ten days in advance oftheir relocation.
Motion carried with Cmr. Spethman voting against the motion.
Director's Report.
Assistant Planning Director Hare discussed the upcoming Planning Commission
calendar schedule and indicated that March 21st is tentatively slated for a Special
Meeting and February 24th is the DRC tour.
13-20
Planning Commission Minutes
.5-
February 14, 2007
Commission Comments:
Cmr. Clayton stated she finds it very helpful when Mr. Hare explains what is the
Commission's scope of responsibility in rendering a decision or recommendation on a
project, however, she would recommend that his comments be made sooner, than later,
once the Commission is embroiled in a discussion that perhaps is a moot point.
Cmr. Bensoussan reported that she attended and was impressed by how informative the
GMOC tour was. Additionally, it has come to her knowledge that the Del Webb Luxury
Senior Living complex, for which the General Plan designation was amended to
accommodate this project, is not going to be built after all. Cmr. Bensoussan expressed
grave concern in allowing General Plan amendments to be project-driven, such as it was
in this case, to later have the project evaporate.
Meeting adjourned to the regular meeting of the Planning Commission on
February 28, 2007.
Diana Vargas, Secreta 0 the Planning Commission
1 3- 21
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Notice tv Tenants of Intention to
COn\fert to Condominiums
Government Codes 66451.3 &.
66452.5
Th<! Own~rs. or the buildings located at 307 Orange Avenue( Chula Vista
CalifornIa Intend to file an application wIth the City of Chula VIsta to Convert the
apartment rental Units to Condominium units. You will be given notice of each
public hearing for which notice IS required pursu,mt to sections $6451.3 and
6645.2.5 of the Government Code. You haile the right to <lppear and the light to
be hearq at any such hearing; .
Westone M gement Consultants
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I\!Jthorlzecl nQen! for ilie O.
e Prope~
I havs l'aQi!Vet;! this notIce dated
Prospec~lve tenants signature
september 1st, 2003
0<;, OC.T O'S
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.
ATTACHMENT 3
13-29
<-
, .
September 1, 2003
Prospective Resident
Orange Glen Apartments
Dear Prospective Resident
The Owners of the buildings located at 307 Orange Avenue, Chula Vista California intend to file an
application with the City of Chula Vista to convert the Apartmef]t Rental Units to Condominium Units. Yaw
wil,l be given notice of each public hearing for which notice is required pursuant to sections 66451.3 and
66452.5 of the' Government Code. You have the right to appear and the right to be heard at any such
hearing.
ConAm Management orporation, .Agent for Owner
Community Direc 0
, ",,,,,,,'edge re.. . ~ ~tifi""'OO
Signed: ~~
Print name: 1 'tit, "'iTl- - <</0.1,,5.1.
Address: 30'1-- OmV\qe'-A\/e #-1
Signed:
Print name:
Address:
. Date:~ldl/O&
Signed: qt t:'\ J-_;r.i~'\.J:rr:rf -bu.o..L~
Print name; ')f-Hl-H'1'l)I1-AlLTC7<: KWrIV
Address: 30l-0ro....qt> AvE'. <ff=/
Signed:
Print name:
Address:
.
.
13-30
EXTERIOR AND INTERIOR IMPROVEMENTS, REPAIRS, AND UPGRADES
FOR CONDOMINIUM CONVERSION AT 307 ORANGE AVENUE
PCS-05-06.k\lD DRc-as-os
The following requirements have been derived from the project's Physical Element
Report and Supplemental, information provided by the Applicant, and Staff reviews of
submittal materials. Note that the following may require Design Review or building
permit approval:
A. Property Condition Assessment Report - Repairs required prior to building
occupancy.
1. Previously required repains from the Housing Inspection have been complied
with; no repairs are required at this time.
B. Physical Elements Report - Immediate Repair or Replacement items, which are
improvements required prior to Final Inspection or Occupancy of applicable
Condominium Units, whichever occurs first, uniess stated otherwise:
1. Correct alligatoring and cracking on asphalt pavement in the entry driveway
gate area. . .
2. Thoroughly examine the irrigation systems and make the necessary repains
and adjustmentS to assure the proper spraying of irrigation water.
3. Repair main waste line (sanitary sewer line) located at Building A2 that has a
negative flow from the building to the street.
4. Inspect fire alarm paneis and update tags.
5. Install hard wired smoke detectorS in all bedrooms.
6. Install 5/8" drywall (Type X) on all common walls and ceilings along with
installation of draft stops above all common walls in the roof attics to be
. compliant with a one-hour fire rating. .
7. Repair or replace leaning I damaged fencing along west side of property.
Source; Physical Elements Report (August, 2003 by JCEPIHuang Consulting
Engineers, Inc.) and the Supplemental Property Condition
Assessment (August 10,2005 by LandAmerica.)
. C. Improvements or Repairs from Information Provided by the Applicant
1. Removal of non-operational roof-mounted solar panels and solar hot water
tanks.
2. Install new roofs on all buildings.
3. Install gutters and downspouts on all buildings.
4. All items listed in attached letter from Applicant dated April 5, 2006.
.
.
ATTACHMENT 4
H:\PDATA\2510131SlAdmin\Task 8 - 307 Orange AJ ~~J5-06)\DRC hearing 4-17-06\4-17 List
ImDrovements & Reoairs.doc
. April 5, 2006
City of Chula Vista.Planning Department
476 Fourth Ave "
ChuIa Vista, CA919l0
Attention: Danielle Putnam, Contract Planner
RE: Application DRC-05-05 and PCS-05-06 Tentative Map for Condominium
Conversion at 307 Orange Ave
Dear Ms. Putnam:
Please find below a list of our proposed upgrades that will be made to the subject
, property, covering boil). the individual condominium Units and the development's,
exterior items. Please note that while we are confident about the scope' and .
specification of work, the manufacturer's specifications areprelimimiry and lI;1ay
change due to manufacturer/product availability. However, any item changes are
anticipated to be for a product of sinillar quality, style, and color.
General Interior 1mprovements to All Units:
" Replace, all air conditioners'
"Fabricate casing around air conditioning units
" Add chandelier light i,n nook
" Install 1.5' x 4' ceiling mount fluorescent light in kitchen
" Add ceiling fans to bedrooms
" Replace.fan box in bathrooms
" Raise light bars iri bathrooms to 84" in height
.. Install dimmer switches light bars
" Raise shower heads in bathrooms to 80" in height
.. Replace all tub and shower vaives
.. Refinish all existing tub and shower enclosures
.. Install new shower doors
II Add Johnny cabinets .
. Replace all medicine cabinets
.. Tile all bathroom floors
.. Install Melamine shelves (with chrome pole and cleat) ill all closets
13-32
o Install voice and data lines in living rooms and bedrooms as shown on
electrical plan
a Install washer and dryer hook ups and install ventilation fans in all storage
closets located offnook
.. Finish window seats with sill and apron in master suites
.. Install all new electric appliances.
Improvements to 1 BR /lBA Units (#100 as an example)
.. Dining bar area in unit will have either 2 pendant lights or 2 - 4" cans over
dining bar
... Remove existing lighting (ceiling mount) from nook area
.. Create arch openi:llg to kitchen
.. Maintain voice and data cable location in LR
.. Install voice and data location in BR
.. Create ar~ opening to hallway from living room
.. Locate lighting over.vanity in bathroom, 84" up frotn floor
.. Create 59" banj 0 si,Uk top element around toilet
.. Install washer/dryer at existing linen closet. F.abricate additional storage
.. Frame washer/dryer closet opening. to install panel door.
.. Replace existing vanity in master bedroom.
.. Replace the vanity light bar for a ceiling flush mounted fixture
.. Shift entry into the MBR closet to the right, where existing v~ty is
currently located
.. Vanity cabinet to be 27" due to existing plumbing placement
Improvements to 2BR/2 BA First Floor Units (Unit #31 as an example)
.. Change layout of kitchen to minimi7:e dishwasher plumbing through
cabinetry
co Install corner wall cabinets with glass on either side of the kitchen window
II Relocate nook light to center of dining area and install a chandelier
.. Create arch o~ening to nook .
.. Install 1.5' x 4' ceiling mounted fluorescent lighting
.. Remove the split linen closet in hall to expand living room and create a full
height niche
.
.
13-33
2
o Create arch niche opening in Living Room
a InsUill data cable in Living Room niche area
. Install voice data cable in M:BR on entry door wall
. Install light in storage closets above air conditioners
. Utilize portions ofMBR closet to create stackable Washer 1 Dryer closet;vith
panel door "
. Install shelves over the Johnny cabinets in bathrooms
. Install in Master Bath 39" vanity combination cabinets with bank'of drawers
to the left of sink base
. Install in secondary bathrooms 39" vanities with drawers to the right of the
sink base
Improvements to 2BR/2 BA Second Floor Units
.. Upgrades to be same as for ground floor units
~provements to 2 BR 12 BA. (#86 as an example)
.. Install exterior wall mounted light for entryway
.. InsUill switch for new entryway light ,
.. Relocate voiceldatacable in Living Room to entry wall 60" from the front door
.. Install 2 pendant lights or 2- 4" cans over dining bar
.. Cancel flush mount light in nook/dining space
.. Make kitchen ceiling 96" H with 1.5' x 4' fluorescent
.. Reframe closet to accommodate 8' wide mirrored doors
.. 'Entry w<J.ll niche, arch top and put a 12" deep base cabinet with granite top
, .. Install 36;' vanity base in bathrooms
.. Add shelves over the Johnny cabinet
.. Install framed mirror over vanity
,
,
13-34
Exterior Desi2TI Improvements:
o New entry gate designs to existing entrances (CAD drawings enclosed)
o
.
o
o
o
o
o
o
o
o
0-
o
- .
o
.
.
.
e
Add a new monument
Add a Tot lot in the front lawn area of property
Create a private terrace off of secOlid story master bedroom (example unit
86) . _
Add a will 84" in height and 50" in length. This height avoIds the roofline..
The wall separates the master terrace from the entry into the adjacent unit. -
Add 5'W French doors off master -
Install wall caps where needed on exposed wall tops on the new upper
balcony walls
Add iron details to street facing buildings - (CAD details enclosed)
Remove flood lights from entry ~ides of buildings
Add an entry wall mount light fixtnre to each condominium entry except
where there are ceiling mount futures
Add foam details to entry doors and designated windows (design details
enclosed)
Add shutters to designated "lYindows
Remove trees With large roots that lift the concrete walkways and those trees
close to the foundation walls
Concrete lightweigl].t tile roof
Replace iron railings (detail enclosed)
Use e;risting rental office space to incorporate a gym
Convert eristing laundry facility into club house
Landscape design done by Architect
Add large wall mounts to front of buildings on street side at each - end (as
shown on exterior elevations)
Remove flood light from center of building -
-Exterior Design Improvements:
Pool Area
. Resurface deck with deck coating
. New patio furniture
e. Add exterior lighting
. Add BBQ's to pool area
. Remove wooden benches from trellis area
. Furniture 4unibrella tables
16 chairs
4 umbrellas
1i lounge chairs
6 side tables
13-35
.
.
A
Exterior Paint Colors:
Dunn Edwards Paint (or similar color by other manufacturer)
Color # Placement:
1. Pale Beach DE6199 Stucco-Tan
2. WoodeuPeg DE6215 Stucco-Brown
3. Briar DEC712 Entry doors/ra.iIin.gs
4. Olive Court DEAl 74 Foam Details, Shutters,
Roofline Fascia, Stringers,
Metal Stairs
The building walls will be labeled with tape prior to painting the exterior. This will
provide exact placement of coior on the exteriors.
Exterior Details:
Mailboxes:
Salsbury Industries
Bronze Finish
Vertical Recessed
Units
Iron Work:
Details enclosed
Tiger Drylac powder Coat Paint
Color: RAL 8016 '
www.tigerdrvlac.com
'Roof:
Eagle Roofing products
Ponderosa
Lightweight concrete tile
Product #5634
Kings Canyon Blend
Roofline
'Gutters:
RGS
Aluminum Gutter
Clay
If desired, we suggest
.painting: Olive Court DEA174
.
13-36
,
Wall Downspout
Gutters:
Shutters:
Foam Detail;
Siding Details:
Windows:
Carpentry
Entry Door:
Address Font:
. House Numbers
, House Numbers:
Door Hardware
Exterior.Entry
DoorHandle:
RGS
Aluminum Gutter
Clay
KG Design ~ Build, Inc.
Spaced; Style Code B2
Spaced 16 7:\," width
Order in: PaiIit Ready #30.
Paint: Olive Court#DEA174
Details enclosed
Frame with Plywood & 2" x 2"'s per CAD drawing.
Vinyl MiIgard Retrofit
Color: Sandstone
TM Cobb
Classic-Craft Rustic Fiberglass
CCR 820.5
Baldwin
Archetypes
0.10. Craftsman
Dark Bronze
Refined App.lications
Bronze
Emtek
Arts & Crafts Handleset
Oil-Rubbed Bronze
.
.
13-37
"
Lighting
Exterior Lighting
Large Wall Mount- Hinkley Lighting
Common Area Lighting:
Entry Wall Mount: Hinkley Lighting
Patio Ceiling Mount: Hinkley Lighting
Patio Wall Mount: Hinkley Lighting
13-38
..,
Westwater Collection
2495 CB
'Copper Bronze Finish wI
Clear Seedy &
Tiffany Pattern Glass
l1"W:x 15"R:x 10 ?/'''E
9 ?/''' top to outlet '
(3) 40W Candelabra
Westwater Collection
2490 CB
Copper Bronze Finish wI
Clear Seedy & Tiffany
Pattern Glass
8 y,"W:x l3"R :x 8 W'E
8" top to outlet,
(2) 40W Candelabra
Westwater Collection _
2499 CB Copper Bronze
Finish wI Clear Seedy &,
'Tiffany pattern Glass
7 ?/,"H:x: 13 W'D
(3) 40W Candelabra
Westwater Collection
2498 CBCopper Bronze
Finish wI Clear Seedy &
Tiffany Pattern Glass
7"W:x 8 W'H:x 6 W'E
4 ?/''' top to outlet
(1) 60W med.
3/31/06
.
.
307 Orange Avenue
Chula Vista, CA 91911
Scanned Images of Specs
Roof:
Eagle's J;'onderosaRoofing; Lightweight Concrete Tile
King's Canyon Blend
Mailboxes:
Vertical Mailbox in Bronze Finish
13-39
11
.
.
Shutters:
Board-N-Batten Spaced Panel B2 Shutter
Entry Doors:
1M Cobb Classic Craft CCR 8205 Entry Door
.
.
13-40
9
Hardware:
Exterior Entry Door Handle ..
Arts & Crafts Handleset Collection; Oil-Rubbed Bro=e
13-41
1n
.
.
Exterior Lighting:
Hinkley Lighting; Westwater Collection
"
Large Wall Mount; Co:r:i:mJ.on Areas
Copper Bronze Finish w/Clear Seedy & Tiffany Style GlaSs
Entry Wall Mount
Copper Bronze Finish w/Clear Seedy & Tiffany Style Glass
,
,
13-42
_ 1.L
Exterior Lighting:
Hinkley Lighting; Westwater Collection
Patio Ceiling Mount
Copper Bronze Finish w/Clear Seedy & Tiffany Style Glass
Patio Wall Mount
Copper Bronze Finish w/Clear Seedy& Tiffany Style Glass
,
.
13-43
17
l
Project No. 08-C-01809
August, 2003
REPORT
Property Condition Assessment
Orange Glen Apartments
307 Orange Avenue
Shula Vista, Sail. Diego County, California.91911
Prepared For
MALCOLM, DAVID & DARMO~
DARMOR, DBA, O&A
Clo Westone Management Consultants
710 CamiIio de la Reina
Sl!ite 129
San Diego, California 92108-3216
Attention: Mr. Joseph Scarlatti
Prepared By
JCEP/Huang Consulting Engineers, Inc.
217 Via Lara
Dos Vientos Ranch, California 91320
.. ATTACHMENT 5
13-44
,
1.0 EXECUTIVE Sll1\1MARY
1.1 General Description
JCEPtHuang completed a property condition assessment (PCA) of a multi-
d-w-eIling complex known as Orange Glen Ap8rtments located at 307 Orange
Avenue, Shula Vista, San Diego COl.m:ty, Califomla 9191lat the request ofJ oseph
Scarlatti of West one Manag=ent Consultants. As part of the peA, an on-site
walk through observation was made ,on August 20,2003 -with Lindsay Erickson of
Westone Management Consultants, and Luis Sarinana" Resident Manager of the '
Apartments.
The subject property contains 124 dwelling units scattered in 7 two-story, wood
frsmed, rectangular-shaped garden type apartment buildings. A brief description
of the dwelling units is as follows:
'V
Unit Tvne No. of Units Size "fUnit 'i'otaIArea
2 BD/2 BA 56 785 s.t: 43,960 s.f.
E1A3D/1 y, BA 40 760 d. 30,!I00 s.f.
1 BD/1 BA 28 540 s.f. 15,120 s.f.
Total 124 89,480 s.f.
Additionally, the sUbject dwe11i:ng complex also provides 193 surfaced pailing
spaces (mcluding 4 handicap pittldng stalls), a leasing office building, a laundry
room, a swimming pool, and associated hatdscape and landscape. ConstI:ucnon
drawings were not available for JCEPtHuang's revi~w. Reportedly, the subject
property was developed in 1985 on an irregularly shaped suburban lot of an
approximated 3.46 acres in the City of Shula Vista, San Diego County, California..
Heating and cooling of the dwelling units are provided by individual electricity-
powered AlC units.. Domestic hot water for the apartments is provided by a '
centralized solar and gas-fue<;l hot water heating unit supported in the utility closet
of each apartment building. Each dwelling.unit is firmi .11ed -with an electric
range/oven, refrigerator, hood and garbage disposal. All two-bedroom units are
also equipped -with dishwashers.
The electric distrlbution panels and individual electric meters are housed in the
utility closet of each building. Gas meters are hung on the exterior walls of
buildings near the ground, Smoke detectors are available fOr the apartments, and
the public areas of the buildings are fitted with fire extinguishers. Additionally,
fire hydrants are located along the city street 'sidewalks by the property and ou-
site as required by the c=ent fire code.
.
.
.
13-45
4.
1.2 General Physical Condition
Management of the apartments advised that seal-co~g and restriping of the
asphalt pavement were completed about ll6 years ago. The swimming pool was
resurfaced in 100 I. And the apartment buildings were repainted in 2002. '
The subject property appears adequately maintained and in overall good condition
with some defects noted. Components of the buildings are composed of durable
materials and sturdy construction. It is JCEPlHuang's opinion that the subject
property is comparable to or better than other similar properties of similar age in
this area and, subject to a continued program of sustained preventative
maintenance, the r"meining economic life of the subject apartments should.
exceed 35 years.
13 Recorro;nended Immediate Repairs (within 12 months)
Deferred maintenance and physical deficiencies for which actions are recom-
mended represent potentially unsafe cQnditions,. material code violations, and
items that requite corrective works'on a higherpriority than routine work.
Bas~dupon observations conducted during the property visit, the following
objectionable property conditions that require immediate corrective works were
identaled: .
. Alligatoring and cracking on the asphalt pavement in the entry driveway gate
area were noted (see photo #15 and #16). This condition should be corrected
immediately before it deteriorated into a potential tripping hazard for
pedestrians.
ESTIMAlED COST:
$8,000.00 .
. Thoroughly examine the irrigation systems (see photo #23). Make necessary
repairs and adjustments to assure the proper spraying of the irrigation water.
ESTIMAlED COST:
$ 800.00
1.4 Recommended Short Term arid Intermediate Term Repairs (between I to 5
years) .
. Dueto aging, it is expected that the following equipment will need to be
replaced.
.
.
13-~ .
L Five (5) AlC units each year
ESTIIv1ATED COST:
. $700/each
2. One (1) hot water heater each year.
ESTIIv1A TED COST:
$500/each
3. Five (5) refrigerators each year.
ESTIMATED COST:
$500/each
4. Five (5) dishwashers each year.
ESTIMATED COST:
$450/each
5. Five stoves/range each year.
. ESTIMATED COST:
$400/each
. Pitched roofing system has a usefu1life span of between 20 and 25 years. The .
Apartments was developed in 1985. Reroofing of the buildings will become
necessary soon.
ESTIMATED COST:
$2.50/s.f.
We understand that the owner of the property haS a renovation program to up-
grade the property. The program will be carried~ut within the next two to three
years, and it includes:
1. Repair/replacement of flooring and painting of interiors of all dwelling units.
2. Repair/replacement of kitchen appliances, counter tops, cabinets and .sinks.
3. Repairlreplacement of windowS and doors.
4. . Repair/replacement of bathroom fixtures.
5. Repair/replacement of any water damaged building elements and materials.
6. Repair/replacement of plumbing system.
7. Repair/replacement of electric system.
Together with the reco=endedrepairs, the subject apartments will become an
attractive and high quality property. :
13-47
C:,
~
landAmerica'
Commercial Services
August 10, 2005
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!..----..---............--........ .......-...
Mr. Michael D'Amelio
Premier Coastal Development
1010 Turquiose Street, .suite 200
San Diego, California "92109
Re: Imme~te Repair Verlfication
307 Orange Avenue
ChuIa VISta, California 91911
LAC Project 05-29331.1
Dear Mr. D'Amelio:
LandAmerica Assessment Corporation (LAC) is pleased to provid<; you with a Supplemental
Property Condition Assessment perf=d in adherence to the City of ChuIa Vista requirements
and Premier Coastal Development guidelines. On July 28, 2005, Greg L. Gavasse, LAC
Professional Associate, perf=ed a Visnal inspection of the present condition at the property
located at 307 Orange Avenue in ChuIa Vista, California. The pUIpose of this assessment was to
snpplement the original report performed by JCEPiHuang Consulting Engineers, Inc., dated
September 2, 2003.
The snpplemental items that need to be covered are 'as follows:
1.) UBC year the project was crnistrocted nnder.
The project was constructed under the 1982 edition cif the Uniform Building
Code.
2.) Location, condition and summary of use for the SDGE transformers, distr1"bution panels,
meters. ' '
The property provides three SDGE transformers, which are located at the
northwest corner (transformer #~ - D16l8372968 Cir 151), south side I rear of
the property (transformer #2 - D16l3972994 Cir 151), and at the northeast
comer of the property (transformer #3 - D16l8573005 Cir 151). The
transformers feed main electrical switchgear through underground conduits. The
main electrical switchgear is located in exterior electrical closets at each building
(see site plan for locations). The main electrical switchgear is rated at 400 amps
and provides 120/208 V AC, 3 pole service to each apartment nuit Each
apartment is separately metered, through a 70-arnp main supplying a sub panel
located in apartment unit master bedroom walls. Each building also contains a 20
amp house main. Interior wiring noted was obserVed to be copper and is Romex
type wiring. Surfuce incandescent fixtnres provide the interior lighting. SEe
provides telephone trunk lines.
In geoeral, the electrical systems for the Subject Property, including
switchboards, panel boardS, lighting and wiring systems appear in fair condition
and adequately sized for the =entuse of the ap".tmeots. Manag=ent reported
no problems andlor deficiencies with electrical systems.
3.) Conditions and reco=endations on plumbing types, condition of fixtures and plumbing
system in general.
. .
LANOAMERICA ASSESSMENT CORPGRATION
1320 HARBOR: BAY PARKWAY ~250 ALAMi:::Q"",,---C.A}'iiORNlA 94502 TeLEPHONE: 510.337.2855
FACSIMIIle;,;p-t'q.iP7.2.865
WWW.NA.CO~P.COM
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,May 3, 2006
, City of Chula Vista Planning Departtnent
4'1'6 Fourth Ave '
Ch\J1'a Vista; c.<\ 91910 ,
'Atten.tion; Danielle Putnam, <;:ontract PI<0!'ler
;1,_. '
.-
JU;::
Application DRC-D5-05 and PCS~()5-06 Teprative.i);1ap for Condominium Conversion, at
3f;fl Orange Ave - Homebuyer iu(d TeiJ.alilt Relocation A.ssistitnge
Dear Ms, Putnam:
In response to the request from the pianniljg Department" the follo'iYing outlines a program
\hat ""ill be implemented to assist the:lelfanrs with pOl-ential CONdominium purchase or
relocation: .' .
,.' .
A rire~tinglworkshop wiU be mgam~~4 ~o iljc1uct:e aJ) tenants, a rePr@s~ntalive from the
. property management cl;JJnpmty, Ii iept~~!1lative or a toortgage bi'ok/lr. and representatives
" frOln!'he de'leloper within sev~' (7)'c1a:\1S'm the appi:Ove:d''r~n~li've Map. We also believe
that $e City of CBNla Vjsta wpuk! :iik~ tn. nav]" fl' repiystmhitive pres~L
, .: . .',
"
",' The fol1'owfug items will be discttssMl
. " . 'I-
" . , ,
"
. . '
A. Information on [he con1~rsion iff ll!i. project ana the future of their f~.naiacy,
. '. ".- .
. "
'B, Assistance for tenants 'who wish' ttipuicl1ase their units .
1. A mortgage broker'wiD b~:Ft~~i to help those wli.6; wish t9,puicha;;e thdr \Init
2. The ero),::er will hol;,i an brr,.:s:lt~ WO,likshop On how tenant? can pte~qualify for a
mortgage and beco~ hbl!leOjNii~ ' " . '.
3. The developer ",ill Off"T f,o'aFiYJ~rested teiJ.a:nt a $5.60(;)',~iSCO\l;1t towards the
purchase oftherr nuit ~9~~si#ttUJce with information on CB1,TIlliunity Housing ,
"Vot.ks, a non-profit org$I\lzati'Qo, that assists pEst-time 'hofutibfl)'ers by provicl.ililg
a,:Gess to specif!! loan ~rid'~llt f:trOg:ff!.ITlS available; t~91igli. state and local
govemrnenL The c;11sc:mni't Will !:J€ offered only ror. ilios" rl\i;\an1s who ]?1l'Fchase a
. unit at the 307 Orang~ M-;;l'lu~ project. '.
, "
c. Assistance foi' tenants who chobse to'relocate: .
I,' The applicant will asS.is~with"the relocation ofthos.e terupits rho-prefer not to.
purchase theit units by. providing $500 fat r'elocaliol'1 an'd lh6ving assistance, their.
full security deposit b8clc, imd a referral list of .affordable housing that is generated
by the Community DeveJoprtie~t Department.
".
.
.
ATTACHMENT 6
1U1DTurqBmSjl 5l Suire 2ilU . S;;!I Dilgll.fl1 !l211iG'4ii5iOl/ll413i1ij . jllJl 8fr8t214.212S . &~i!f.Prilliliilr8lm!l'Jlfitim"m.
"
2. Assistance in locating replacement housing Ve'ill be offered by the property
management company who will ~signate a representative to help tenants secure
rental bousing.
3, . Any tenants toov'ing in after approval of the Tentative Map by City Council will be
on a mOEm-to-month lease and as tn!; wqrk progresses, reduced montbIy :tent~ will'
be provided.
. Sll(::erely.
.. l2L~----.
Clrristopber Duggan
Premier Coastal Development
.'
'!" '..
2
13-51
.
.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Chula Vista
276 Fourth Avenue
Chula Vista CA 91910
Alln: City Clerk
No fee for recording pursuant to
Govemment Code Section 27383
(Space above for Recorder's Use)
AFFORDABLE HOUSING REGULATORY AGREEMENT
THIS AFFORDABLE HOUSING REGULATORY AGREEMENT (this "Agreement") is entered
into as of ,2007, between the CITY OF CHULA VISTA, a municipal corporation ("City"),
and WGA ORANGE AVENUE, a Califomia limited partnership ("Developer") and/or its successors
or assignees.
1. - Recitals
1.1. Authoritv. The City is a municipal corporation, organized and existing under the laws of the
State of California. City is authorized to enter into binding agreements for the purpose of
protecting public health, safety, and welfare.
1.2. Developer. Developer has a property interest in property in the City of Chula Vista, in the
County of San Diego, California, commonly known as 307 Orange Avenue, which is legally
described in Exhibit "A", which is hereby incorporated herein (the "Real Property"). The Real
Property will be a condominium project established pursuant to Section 1350, et seq. of the
California Civil Code.
1 .3. Proiect. Developer wishes to convert the existing 124-unit apartment complex at 307 Orange
Avenue to a condominium project (the "Project"). Owner proposes that 83 of those units will
be sold at prevailing market rates (the "Market Units") and that 41 units will be sold at
affordable prices to eligible moderate income households (the "Restricted Units") as further
described in Section 1.5 below.
1.4 Tentative Map. The City Council of the City of Chula Vista, through the adoption of
Resolution No. , has approved a tentative map in accordance with the State
Subdivision Map Act and the City's Municipal Code, Chapter 15.56, authorizing the
conversion of the Project into a condominium project. The Owner has requested a Density
Bonus pursuant to 65915.5. Pursuant to 65915.5 the Owner is entitled to additional units or
incentives of equivalent financial value. As requested by the Owner and in accordance with
Califomia Government Code g65915.5, the City has granted Owner a reduction in certain
requirements of the following conditions of conversion as incentives of equivalent financial
value:
Affordable Regulatory Housing Agreement
1
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. The requirement to comply with the off-street parking standards for multiple family
dwellings and dwelling groups which exist at the time of the establishment of the Project
as a condominium project set forth in Municipal Code section 15.56.020(F).
. The requirement to comply with the City's current open space requirements set forth in
Municipal Code section 19.28.090
. The requirement to provide storage space set forth in Municipal Code section
15.56.020(C).
1.5 Density Bonus Conditions. Developer and the City now desire to enter into this Agreement
to satisfy the conditions of approval requiring Developer to provide at least 33 percent ofthe
total units as moderate income for sale housing. as defined in ~50093 of the Health and
Safety Code.
20
One Bedroom / One Bath
21
Two Bedroom /1 Bath
1.6 Bindina On Successive Owners. Pursuant to California Government Code Section 27281.5,
the parties intend that this Agreement constitute an encumbrance against the Real Property
which, during the Term of this Agreement, is binding on the owners and successive owners
of the Real Property for the benefit of the City.
NOW THEREFORE, THE CITY AND DEVELOPER HEREBY AGREE AS FOLLOWS:
2. - Definitions
The following definitions apply for purposes of this Agreement:
2.1 "Area Median Income" means the latest median income from time to time determined by
the United States Department of Housing and Urban Development (pursuant to Section 8 of
the United States Housing Act of 1937) for the San Diego Standard Metropolitan Statistical
Area, and as established by regulation of the State of California pursuant to Health and
Safety Code Section 50093.
2.2 "Buyer-Elected Options and Upgrades" means options and upgrades included in a Unit
that are not included within the plans and specifications for standard production Units and
that are paid for in cash by the buyer.
2.3 "Buyer-Qualified Interest Rate" means the interest rate a buyer qualifies for and obtains
under a loan, the proceeds of which are used to purchase the Moderate Income Unit.
2.4 "City Notice of Approval" means the letter from the City identifying the applicant as an
eligible affordable buyer.
Affordable RegUlatory Housing Agreement
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2.5 "Gross Income" shall mean the anticipated income of a person or family for the 12-month
period following the date of determination of income as defined in Title 25 of the California
Code of Regulations Section 6914.
2.6 "Market Rate Price(s)" shall be as described in Section 3.2 below.
2.7 "Moderate Income Affordable Sales Price" shall be determined pursuant to Section 3.3.3
below.
2.8 "Moderate Income Buyers" means individuals or families with a gross income which does
not exceed one hundred twenty percent (120 %) of the current Area Median Income, as
adjusted for household size as set forth in ~50093 of the Health and Safety Code.
2.9 "Moderate Income Unit" means any of the forty-one (41) Units which shall be sold by
Developer to and occupied by a Moderate Income Buyer.
2.10 "Monthly Housing Cost" means the sum of monthly payments for all of the following with
respect to a Moderate Income Unit:
2.10.1 Principal and interest, amortized over thirty (30) years, at the then current fixed
interest rate, payable under the First Trust Deed Loan (as defined below), which is
then available to acquire an Moderate Income Unit;
2.10.2 Any special tax district assessments, Mello-Roos special taxes, prorated monthly,
which apply to the Moderate Income Unit;
2.10.3 The monthly homeowners association regular assessments which apply to the
Moderate Income Unit; and
2.10.4 A reasonable allowance for real estate taxes and insurance not included in the
above costs, prorated monthly.
2.10.5 A modest Utility allowance as determined by the Housing Authority for the unit size.
Utility allowance does not include telephone or cable service.
2.11 Mortgage Amount" shall be as described in Sections 3.3.1, 3.3.2, whichever is applicable.
2.12 "Silent Second Note" shall refer to the promissory note made by a Moderate Income Buyer
in favor of the City which is equal to the difference between the Market Rate Price and the
Moderate Income Affordable Price of a Moderate Income Unit. The form of the Silent
Second Note shall be as set forth on Exhibit "B" attached hereto.
2.13 "Silent Second Trust Deed" shall refer to a deed of trust which secures a Silent Second
Note. The form of the Silent Second Trust Deed shall be as set forth on Exhibit "C"
attached hereto.
2.14 "Term" shall be described in 4 below.
3. - Marketinll of Moderate Income Units
3.1 Moderate Income Units. Of the One-Hundred Twenty-Four (124) Units in the Project,
Developer shall sell Forty-One (41) Units only to Moderate Income Buyers) The Forty-One
Affordable Regulatory Housing Agreement
3
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(41) Moderate Income Units shall consist of20 One (1) and 21 Two (2) bedroom Units. The
sales price of each such Moderate Income Unit shall be the Market Rate Price, with the
Silent Second Note being in original principal amount equal to the difference between the
Market Rate Price and the Maximum Sales Price for a Moderate Income Unit.
The Silent Second Note shall be secured by the Silent Second Trust Deed encumbering the
Moderate Income Unit which is sold to a Moderate Income Buyer. The Silent Second Trust
Deed shall be subordinate in priority to the institutional trust deed loan ("First Tnust Deed
Loan") which the Moderate Income Buyer obtains to purchase the property.
3.2 Market Rate Price. The Market Rate Prices for the Moderate Income Units shall initially be
the amounts set forth in the attached Schedule "1", Developer may request that the City
recalculate the Market Rate Prices twice in any given calendar year pursuant to the
procedures set forth in this Section, Developer shall seek the City's written approval, which
approval shall not be unreasonably withheld, prior to modifying the Market Rate Prices.
Developer may submit to the City Developer's proposed revisions, if any, to the Market Rate
Prices for the Moderate Income Units. Within ten (10) business days after such submission,
the City shall approve or disapprove such proposed revisions. If the City disapproves and
objects to Developer's proposed revisions within such ten (10)-day period, Developer may
re-submit further revisions to the Market Rate Prices to address the City's grounds for
objection, and the City shall thereafter have ten (10) business days to approve or disapprove
Developer's proposed revisions, If, however, the City fails to approve or disapprove
Developer's proposed revisions within the initial ten (10)-business day period (or the
subsequent ten (1 OJ-business day period iri case of re-submlssion), Developer's proposed
revisions shall be deemed approved.
3.3 Calculation of Maximum Moderate Income Affordable Sales Price.
3.3.1
The Maximum Sales Price of a Restricted Unit (the "Maximum Sales Price") means the
maximum sales price applicable to the unit size in question, as set forth in regulations
promulgated pursuant to California Health and Safety Code section 50025.5(e) to
determine the sales price that will make housing available to moderate-income households
at an "affordable housing cost," as defined in California Health and Safety Code section
50025.5(b)(4).
One (1) Bedroom
Two (2) Bedroom
$197,956
$227,226
Developer may request that the City recalculate the Maximum Sales Price twice in any given
calendar year. Pursuant to the procedures set forth in this Section, developer shall seek the
City's written approval, which approval shall not be unreasonably withheld, prior to modifying
the Maximum Moderate Income Affordable Sales Prices.
Developer may submit to the City Developer's proposed revisions, if any, to the Maximum
Moderate Income Affordable Sales Prices for the Moderate Income Units. Within ten (10)
Affordable Regulatory Housing Agreement
4
13-55
business days after such submission, the City shall approve or disapprove such proposed
revisions. If the City disapproves and objects to Developer's proposed revisions within such
ten (10)-day period, Developer may re-submit further revisions to the Maximum Moderate
Income Affordable Sales Prices to address the City's grounds for objection, and the City
shall thereafter have ten (10) business days to approve or disapprove Developer's proposed
revisions. If, however, the City fails to approve or disapprove Developer's proposed revisions
within the initial ten (10)-business day period (or the subsequent ten (10)-business day
period in case of re-submission), Developer's proposed revisions shall be deemed
approved.
3.4 Unit Sizes and Appropriate Household Sizes. The following are the household sizes
appropriate to a Moderate Income Unit, for calculation of Mortgage Amount based State law:
Calculation of the Moderate Income Affordable Sales Price shall be based upon the
assumed household size specified for the Moderate Income Unit size as set forth in the
foregoing table notwithstanding the actual size of the household that purchases the
Moderate Income Unit.
3.5 Proof of Qualification. Developer will obtain from each person(s) to whom Developer sells a
Moderate Income Unit a "Supplemental Buyer Application" (the "Application") in the form of
Exhibit "D" attached hereto (or such other form as the City may from time to time adopt and
of which the City will notify Developer in writing). Developer will be entitled to rely on the
Application and the supporting documents thereto in determining the eligibility of such
person(s) to buy such Moderate Income Unit. Developer will retain the Application and
supporting documents for a period of at least seven (7) years after the buyer thereof closes
escrow for the purchase of the Moderate Income Unit.
3.6 Records. Audits. Developer will submit to the City monthly copies of all Applications,
available settlement or closing statements with respect to each Moderate Income Unit that
has closed escrow, and documents submitted containing information with respect to each
Moderate Income Unit including (i) the monthly amortized Mortgage Amount, (ii) the number
of occupants for which the Moderate Income Unit is sold, (iii) the income of such
occupant(s), (iv) the Market Rate Price of the Moderate Income Unit and (v) the Moderate
Income Affordable Sales Price of the Moderate Income Unit or the Moderate Income
Affordable Sales Price of the Moderate Income Unit, whichever is applicable. Such
submission shall be in the form of Exhibit "D" attached hereto (or such other form as the City
may from time to time adopt and of which the City notifies Developer in writing). If the City
reasonably believes that violations of the sales price, occupancy and/or income
requirements of this Agreement have occurred, and that an audit is necessary to verify
submitted Applications and documentation, it will so notify Developer in writing thereof.
Within ten (10) days after delivery of said notice, Developer will deliver to the City the names
of three certified public accountants doing business in the metropolitan San Diego area.
The City will promptly deliver to Developer the former's approval of one or more of said
names. The audit will be completed by an approved certified public accountant, at
Developer's cost, within 60 days after the delivery to Developer of the City's said approval.
Affordable Regulatory Housing Agreement
5
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The certified public accountant will promptly deliver a copy of the written audit to the City.
Developer shall regularly evaluate its compliance with the sales price, occupancy and
income requirements of this Agreement and exercise good faith efforts to avoid any
violations thereof.
3.7 Citv Aooroval of Marketinq Plan: Selection of Moderate Income Buvers. The following
requirements shall apply with respect to Developer's marketing of the Moderate Income
Units
3.7.1 Marketinq Plan. Developer shall prepare a marketing plan in compliance with
Federal and State Fair Housing Laws. Such marketing plan shall include a plan for
publicizing the availability of the Moderate Income Units within the City, such as
notices in any local newspapers. The marketing plan shall require Developer to
obtain from the City the names of Moderate income households who have been
displaced by the City Redevelopment Agency redevelopment projects, and to notify
persons on such list of the availability of Moderate Income Units in the Project prior
to undertaking other forms of marketing. The marketing plan shall provide that the
persons on such list of displaced persons be given not fewer than fifteen (15) days
after receipt of such notice to respond by completing application forms for purchase
of Moderate Income Units, as applicable.
3.7.2 Income Requirements. All buyers of each Moderate Income Unit shall meet the
income requirements set forth in this Agreement. Selection of Moderate Income
Buyers shall be made based upon the Buyer Selection Criteria as established within
the following levels of priority.
A point system has been established so that applicants with a higher number of
points will receive preference for Moderate Income Units.
5 Points Households which are displaced from their primary residence
as a result of any of the following: (i) expiration of affordable
housing covenants applicable to such residence; (ii) an
action of the City or the City Redevelopment Agency; (iii)
closure of a mobile home or trailer park community in which
the household's residence was located; or (iv) a
condominium conversion involving the household's
residence. One member in the household must have resided
in such housing as the primary place of residence for at least
one year prior to such action or event.
4 Points Households with at least one member who has worked within
the City, as that person's principal place of full-time
employment, for at least one year prior to the date of
application for such housing.
3 Points Households with at least one member who is a Public Safety
employee (fire and pOlice) or Credentialed Teacher. The
individual must be working in such position as his/her full-
time profession at the time of application.
2 Points Households currently residing within the boundaries of the
Citv of Chula Vista at the time of aoolication.
Affordable Regulatory Housing Agreement
6
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City of Chula Vista, at the time of application.
1 Point All other applicants who do not meet any of the above
criteria.
In the situation where there are applicants with an equal number of points but not
enough Moderate Income Units are available, a lottery will be held at a place and
time to be announced by the City and Developer.
3.7. City's Evaluation of Qualification of Moderate Income Buvers: Authority of City To Receive
Loan Applications. Developer shall reasonably assist the City in obtaining from each
Moderate Income Buyer (or prospective Moderate Income Buyer) a form signed by the
Moderate Income Buyer authorizing the release to the City of the prospective buyer's 1003
(Mortgage Loan Application), Good Faith Estimate and Underwriting Transmittal Summary
(1008) or similar form from the applicable lender. Developer shall request that each such
lender forward to the City the loan documentation for any loan to a Moderate Income Buyer.
The City will evaluate these forms and communicate its evaluation to Developer. After the
City's review and verification that a prospective buyer is qualified as a Moderate Income or
Moderate Income Buyer, the City will send a City Notice of Approval to the lender and
Developer confirming the prospective buyer's eligibility.
3.8. Qualification Criteria. The City will utilize the following criteria in evaluating an application by
a Moderate Income Buyer (or prospective Moderate Income Buyer):
3.8.1. Neither the Affordable Buyer nor such Affordable Buyer's spouse has owned a home
during the three (3) - year period immediately preceding the purchase of the
Moderate Income Unit.
3.8.2.
3.8.3. The Affordable Buyer's liquid assets after down payment, Affordable Buyer's closing
costs and Affordable Buyer's cash payments for Buyer-Elected Options and
Upgrades must not exceed $25,000.00.
3.8.4. Non-occupant co-borrowers are not allowed.
3.8.5. The maximum Monthly Housing Costs must not exceed 36% of monthly income for
FHA insured loans and 40% of monthly income for all other loans.
3.8.6. The maximum debt-to-income ratios must not exceed 41 % for FHA insured loans
and 45% for all other loans.
3.8.7. No refinancing for cash-out or debt consolidation purposes will be allowed (but rate
and term refinancing is permitted).
3.9. Occupancy Criteria. Beginning with the initial sale of a Moderate Income Unit and
continuing with each sale thereafter, the Purchaser of a Moderate Income Unit will meet the
following criteria ("Occupancy Criteria"): The Purchaser will occupy Moderate Income Unit
as hislher only residence. The Purchaser will be considered as occupying the Moderate
Income Unit as the Purchaser's only place of residence if the Purchaser is living in the
Affordable Regulatory Housing Agreement
7
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Moderate Income Unit for at least 1 O-months out of each calendar year. Notwithstanding the
foregoing:
3.9.1 If the Purchaser is deceased, then the Purchaser's heir may take title to the
Moderate Income Unit, provided such heir qualifies as an Eligible Moderate Income
Unit, all such heirs must qualify as an Eligible Household. If the Purchaser's heir(s)
do not qualify as an Eligible Household, the heir(s) must sell the Restricted Unit to an
Eligible Household for a total consideration that does not exceed the then Maximum
Sales Price.
3.9.2 If the Purchaser's failure to occupy the Moderate Income Unit is the result of a
medical necessity, then the Purchaser will be given a grace period. At the end of
such grace period, the Purchaser will be required to either occupy the Moderate
Income Unit or to sell such Moderate Income Unit to an Eligible Household for a total
consideration that does not exceed the Maximum Sales Price.
3.10 Infonmation Packet. Developer shall provide an informational packet to each Moderate
Income Buyer and Moderate Income Buyer, summarizing the requirements of the City's
affordable for sale housing program provided for in this Agreement. The City shall, at
Developer's request, reasonably assist Developer with the preparation or review of the
informational packet.
4. Term
4.1. Term of Aareement. The agreement shall commence on the date of this Agreement. The
Term ends after all obligations under this agreement have been met and verified by the City.
Upon verification from the City that all obligations have been satisfied, the City shall record
a termination of this Agreement in the Office of the County Recorder of San Diego County,
California.
4.2. Recorded Affordabilitv Clause. At the time of the initial sale to an eligible household of a
Moderate Income Unit, each Moderate Income Unit shall be subject to the affordability
Restrictions for a period of thirty (30) years, as described in their Deed of Trust. Each
Purchaser of a Moderate Income Unit must sign a Deed of Trust which contains covenants
about affordability, resale and payment to the City.
4.3. Transfer of Restricted Units. Neither Owner nor the Purchaser(s) of a Restricted Unit can
sell or transfer any Restricted Unit without the approval of the City, and the City's verification
that the requirements of this Agreement (or, if the Owner has sold such Restricted Unit to
Purchaser, the Individual Declaration applicable to such Restricted Unit) have been satisfied,
including without limitation the City's verification that a purchaser or transferee is an Eligible
Household at the time of purchase and that the Actual Sales Price does not exceed the
Maximum Sales Price.
5. - Subordination
Upon request, the City shall subordinate this Agreement to any first deed of trust which Developer
obtains for construction of the Project and the First Trust Deed Loans obtained by buyers to
purchase their Moderate Income Units. However, any subordination agreement entered into by the
City shall contain written commitments which the City finds are reasonably designed to protect the
Affordable Regulatory Housing Agreement
8
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City's interests in the event of default, such as any of the following: (a) a right of the City to cure a
default on the loan prior to foreclosure, (b) a right of the City to negotiate with the lender after notice
of default from the lender and prior to foreclosure, (c) an agreement that if prior to foreclosure of the
loan, the City takes title to the property and cures the default on the loan, the lender will not exercise
any right it may have to accelerate the loan by reason of the transfer of title to the City, and (d) a
right of the City to acquire through foreclosure under the Silent Second Trust Deed the Moderate
Income Unit from the buyer at any time after a material default on the loan.
6. - Additional Provisions Rellardinll The Real ProDertv
6.1. Condition of the Real ProDertv. The following provisions shall apply only during the period of
time that Developer is developing and marketing the Project.
6.1.1. Developer shall prevent the release, by Developer or its contractors, into the environment of
any Hazardous Materials which may be located in, on or under the Real Property. Such
precautions shall include compliance with all Governmental Requirements with respect to
Hazardous Materials. In addition, Developer shall install and utilize such equipment and
implement and adhere to such procedures as are consistent with commercially reasonable
standards as respects the disclosure, storage, use, removal and disposal of Hazardous
Materials.
6.1.2. Developer shall indemnify, defend and hold the City, its elected officials, officers, agents,
employees, representatives, and successors harmless from and against any claim, action,
suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or
expense (including, without limitation, reasonable attorneys'fees), resulting from, arising out
of, or based upon Developer's or its contractor's (i) release, use, generation, discharge,
storage or disposal of any Hazardous Materials on, under, in or about, orthe transportation
of any such Hazardous Materials to or from, the Real Property, no matter when such claim,
action, suit or proceeding is first asserted or begun and no matter how the Hazardous
Materials came to be released, used, generated, discharged, stored or disposed of on,
under, in or about, to or from the Real Property, or by whom or how they are discovered, or
(Ii) violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit,
judgment or license relating to the use, generation, release, discharge, storage, disposal or
transportation of Hazardous Materials on, under, in or about, to or from, the Real Property.
This indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel
indemnity after closing, cost or expense arising from or out of any claim, action, suit or
proceeding, including injunctive, mandamus, equity or action at law, for personal injury
(including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to
the natural resource or the environment, nuisance, contamination, leak, spill, release or
other adverse effect on the environment. Developer obligations under this indemnity shall
survive the termination of this Agreement.
6.1.3. For purposes of this Agreement, "Hazardous Materials" means any substance,
material, or waste which is or becomes regulated by any local governmental
authority, San Diego County, the State of California, regional governmental authority,
or the United States Government, including, but not limited to, any material or
substance which is (i) defined as a "hazardous waste," "extremely hazardous waste,"
or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed
pursuant to Section 25130 of the California Health and Safety Code, Division 20,
Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code, Division
Affordable Regulatory Housing Agreement
9
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20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act) , (iii)
defined as a "hazardous material," "hazardous substance," or "hazardous waste"
under Section 25501 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory), (Iv) defined as a
"hazardous substance" under Section 25281 of the California Health and Safety
Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances),
(v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl
tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Code of Re9ulations,
Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to
Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (xi) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903) or (xii)
defined as "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601,
et seq.
6.1.4. For purposes of this Agreement, "Governmental Requirements" means all laws,
ordinances, statutes, codes, rules, regulations, orders and decrees of the United
States, the State, the County of San Diego, the City, or any other political subdivision
in which the Real Property is located, and of any other political subdivision or
instrumentality exercising jurisdiction over the City, Developer or the Real Property.
6.2 Taxes. Assessments. Encumbrances. and Liens. Developer shall pay prior to delinquency
all real estate taxes and assessments properly assessed and levied on portions of the Real
Property which are owned by Developer.
Nothing in this Agreement shall be deemed to prohibit Developer from contesting the validity
or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available
to Developer in respect thereto.
6.3 Hold Harmless. Developer agrees to indemnify, protect, defend and hold harmless the City,
its elected officials, officers, agents, employees, representatives and successors, from and
against any and all claims, damages, actions, costs, demands, expenses or liability,
including without limitation, reasonable attorneys' fees and court costs, which may arise from
the direct or indirect actions or inactions of Developer or those of its contractors,
subcontractors, agents, employees or other persons acting on Developers' behalf which
relate to the approval of the project, the approval of this agreement and associated
documents, and the Developer's construction and marketing activities of the Real Property
or Project. This hold harmless agreement applies, without limitation, to all damages and
claims for damages suffered or alleged to have been suffered by reasons of the operations
referred to in this section regardless of whether or not the City prepared, supplied or
approved plans or specifications, or both, for the Real Property or Project. This indemnity by
Developer, and all other indemnities set forth herein shall survive any foreclosure of the Real
Property by the City pursuant to the terms of the Silent Second Trust Deed and the Term or
earlier termination of this Agreement.
6.4 Obliaation to Refrain from Discrimination. There shall be no discrimination against, or
segregation of, any persons, or group of persons, on account of race, color, creed, religion,
sex, marital status, ancestry, or national origin in the enjoyment of the Real Property.
Developer shall further comply with all the requirements of the Americans with Disabilities
Act and the Americans with Disabilities Act Accessibility Guidelines (collectively, "ADA").
Affordable RegUlatory Housing Agreement
10
1 3- 61
6.5 Form of Nondiscrimination and Nonseoreoation Clauses. Developer shall refrain from
restricting the sale of any portion of the Real Property, or contracts relating to the Real
Property, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national
origin of any person and shall comply with all the requirements for the ADA. All such deeds,
leases or contracts, shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
6.5.1 In deeds: "The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, ancestry, or national origin in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee
himself, or any persons claiming under or through him, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or
vendees in the land herein conveyed and further covenants that all such individuals
and entities shall comply with all requirements of the Americans with Disabilities Act
of 1990, as the same may be amended from time to time (42 U.S.C. Section 12101,
et seq.), and the Americans with Disabilities Accessibility Guidelines. The foregoing
covenants shall run with the land."
6.5.2 In leases: "The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through him, and this lease is made and accepted upon and subject to the following
conditions: 'That there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, ancestry, or national origin in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee
himself, or any person claiming under or through him, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the land herein lease and the lease shall be carried out in compliance
with all requirements of the Americans with Disabilities Act of 1990, as the same may
be amended from time to time (42 U.S.C. Section 12101, et seq.), and the
Americans with Disabilities Accessibility Guidelines.'"
6.5.3 In contracts: "There shall be no discrimination against or segregation of any persons
or group of persons on account of race, color, creed, religion, sex, marital status,
ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or
enjoyment of land, nor shall the transferee himself, or any person claiming under or
through him, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sublessees, or vendees of land and all such activities
shall be conducted in compliance with all the requirements of the Americans with
Disabilities Act of 1990, as the same may be amended from time to time (42 U.S.C.
Section 12101, et seq.), and the Americans with Disabilities Accessibility
Guidelines."
7. - Escrow Documentation
The City shall provide Developer with any revision it reasonably deems appropriate to the form Silent
Affordable Regulatory Housing Agreement
11
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Second Note or the Silent Second Trust Deed for the use in escrow for the sale of each Moderate
Income Unit. The Silent Second Trust Deed shall be recorded with the County Recorder of San
Diego County at close of escrow for the sale by Developer of each Moderate Income Unit, and each
Silent Second Trust Deed shall legally describe the particular Moderate Income Unit it covers, using
the same legal description as is used in Developer's deed to its buyer. Each Silent Second Trust
Deed shall be consistent with and implement the terms of this Agreement.
8. - Breach
8.1. Breach bv Citv. If the City breaches any of its covenants contained in this Agreement,
Developer will have available to it all legal and equitable remedies afforded by the laws of
the State of Califomia.
8.2. Breach bv Develooer of Sale Price Limit Requirements. If, with respect to any Moderate
Income Unit, Developer breaches this Agreement by charging higher sales prices than that
herein permitted, Developer will, immediately upon the City's demand, (i) reduce the sales
price to that permitted herein and (ii) refund to any buyers who theretofore paid such higher
sales price the amount of the excess, together with interest hereon at the rate of ten percent
(10%) per annum or the maximum legal rate, whichever is less, computed from the date(s)
of payment of the excess by said buyers to the date of said refund. The provisions of this
Section constitute a third-party beneficiary contract in favor of such buyers. Further, the City
is hereby granted the power (but not the duty) to act as attorney-in-fact of such buyers in
enforcing this section.
8.3. Breach bv Develooer of Sales Requirements. If, with respect to any Moderate Income Unit,
Developer breaches this Agreement by selling to buyers who are not qualified by the City
pursuant to Section 3.8, Developer will, immediately upon the City's written demand, and at
Developer's sole cost, use its reasonable best and lawful efforts to terminate such sale or
otherwise substitute an Unrestricted Unit in such sale.
8.4. Breach bv Develooer of other Requirements. If Developer breaches any of its covenants
contained in this Agreement, the City shall have available to it all legal and equitable
remedies afforded by the laws of the State of California.
8.5. Remedies Not Exclusive. The remedies set forth in this section are not exclusive, but are in
addition to all legal or equitable remedies otherwise available to the City and Developer.
9. - Conflicts of Law
9.1 Conflict of Citv and State or Federal Laws. In the event that state or federal laws or
regulations enacted after this Agreement has been entered into prevent or preclude
compliance with one or more provisions of this Agreement the parties will:
9.1.1.1 Notice and Cooies: Provide the other party with written notice of such state or
federal restriction, provide a copy of such regulation or policy and statement of
conflict with the provisions of this Agreement.
9.1.1.2 Modification Conferences: The parties will, within 30 days, meet and confer in good
faith in a reasonable attempt to modify this Agreement to comply with such federal or
state law or regulation.
Affordable Regulatory Housing Agreement
12
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9.1.1.3 City Council Hearinas. Thereafter, regardless of whether the parties reach an
agreement on the effect of such federal or state law or regulation upon this
Agreement, the matter will be scheduled for consideration by the governing board of
the City Council. The City Council, at such meeting, will determine the exact
modification or suspension which shall be necessitated by such federal or state law
or regulation. Developer, at the meeting, will have the right to offer oral and written
testimony. Any modification or suspension will be taken by the affirmative vote of not
less than a majority of the authorized voting members of the governing board of the
City Council.
9.1.1.4 Coooeration in Securina Permits. The City shall cooperate with Developer in the
securing of any permits which may be required as a result of such modifications or
suspensions.
10. - General Provisions
10.1 Severabilitv. The parties hereto agree that the provisions are severable. If any provision of
this Agreement is held invalid, the remainder of this Agreement will be effective and will
remain in full force and effect unless amended or modified by mutual written consent of the
parties.
10.2 Entire Aareement. Waivers and Amendments. This Agreement, together with any other
written document referred to or contemplated herein, embody the entire Agreement and
understanding between the parties relating to the subject matter hereof. Neither this
Agreement nor any provision hereof may be amended, modified, waived, cancelled or
discharged except by an instrument in writing executed by the both parties
10.3 Caoacities of Parties. Each signatory and party hereto hereby warrants and represents to
the other party that it has legal authority and capacity and direction from its principal to enter
into this Agreement, and that all resolutions or other actions have been taken so as to
enable it to enter into this Agreement.
10.4 Governina LawNenue. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. Any action arising under or relating to this
Agreement shall be brought only in the Federal or State courts located in San Diego County,
State of California, and if applicable, the City of Chula Vista, or as close thereto as possible.
Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista.
10.5 Assianment. Subject to the City's prior review and approval, which review and approval shall
not be unreasonably withheld, the rights and obligations of Developer under this Agreement
may be transferred or assigned and Developer may be released from such obligations upon
such transfer or assignment, provided such transfer or assignment is made as a part of the
conveyance of the fee of all or a portion of the Real Property. Any such transfer or
assignment will be subject to the provisions of this Agreement. During the term of this
Agreement, any such assignee or transferee will observe and perform all of the duties and
obligations of Developer contained in this Agreement as such duties and obligations pertain
to the portion of the Real Property so conveyed.
Except as permitted below, transfers of any interest in the Developer entity shall
constitute a prohibited transfer hereunder.
Affordable Regulatory Housing Agreement
13
13-64
(i) Notwithstanding any other provisions of this Agreement to the contrary,
City approval of an assignment of this Agreement or any interest herein shall not
be required in connection with any of the following:
(a) Any transfers among the principals of the Developer entities so
long as the existing principals thereof shall be and remain in management control
of the Developer entity with at least a fifty-one percent (51 %) ownership or
beneficial interest in the DEVELOPER entity.
(b) The granting of temporary or permanent easements or permits to
governmental or quasi-governmental agencies to facilitate the development of the
Property, or any component thereof.
(i) City consent will be granted if:
(a) the proposed assigneeltransferee expressly assumes, in writing,
Developer's obligations hereunder as to times following the effective date of the
assignment or transfer;
(b) the proposed assignee/transferee has demonstrated to the
reasonable satisfaction of City that such person or entity has adequate financial
capacity to fulfill all obligations of this Agreement.
10.6 Enforcement. Unless amended or cancelled as provided in Section 10.2, this Agreement is
enforceable by any party to it despite a change in the applicable general or specific plans,
zoning, subdivision or building regulations adopted by the City which alter or amend the
rules, regulations or policies governing permitted uses of the land, density and design.
10.7 Bindino Effect of Aoreement. The burdens of this Agreement bind and the benefits of this
Agreement inure to the parties' successors or assignees in interest.
10.8 Notices. All notices, demands or requests provided for or permitted to be given pursuant to
this Agreement must be in writing. All notices, demands or requests to be sent to any party
shall be deemed to have been properly given or served if (i) personally served, or
(ii) deposited in the United States mail, addressed to such party, postage prepaid, registered
or certified, with return receipt requested, at the addresses identified herein as the places of
business for each of the designated parties.
City of Chula Vista DeveloDer
Attn: Community Development Director
Community Development Department WGA Orange Avenue, LP
276 Fourth Avenue 9252 Chesapeake Dr.
Chula Vista, CA 91910 San Diego, CA 92123
With a CODV to: With a CODV to:
Attn: City Attorney
A party may change its address by giving notice in writing to the other party. Thereafter, notices,
demands and requests shall be addressed and transmitted to the new address.
Affordable Regulatory Housing Agreement
14
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Signature Page to Follow
Affordable Regulatory Housing Agreement
15
13-66
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the
day and year first written above.
"CITY"
CITY OF CHULA VISTA, a municipal corporation of the
State of California
By:
David R. Garcia, City Manager
ATTEST:
Susan Bigelow, City Clerk
APPROVED AS TO FORM:
Ann Moore, City Attorney
"DEVELOPER"
WGA ORANGE AVENUE, a California
limited partnership
By:
~~m'. ~
Its: V('e.~ dP"lf
Date: "'1-Cl- ('"'),
By:
Name:
Its:
Date:
Affordable Regulatory Housing Agreement
16
13-67
EXHIBIT A
LEGAL PROPERTY DESCRIPTION
All that certain real property situated in the City of Chula Vista, County of San Diego, State
of California, described as follows:
Parcel 1 of Parcel Map No. 15164, in the City of Chula Vista, County of San Diego, State of
California, Filed in the office of the County Recorder of San Diego County, on February 29,
1988 as File No. 88-090173 of Official Records.
EXHIBIT A
065550-0009 251465.3 doc
13-68
EXHIBIT B
FORM OF SILENT SECOND NOTE
EXHIBIT B
06~S50-0009 251465.3 doc
13-69
NOTICE: THIS NOTE MAY REQUIRE PAYMENT OF PRINCIPAL AND INTEREST
UPON THE SALE OR TRANSFER OF THE PROPERTY OR UPON A PREPAYMENT.
PROMISSORY NOTE SECURED BY DEED OF TRUST
$
Amount
2006
Date
[Insert Property Address]
1. Borrower's Promise to Pay. For value received, the undersigned,
("Borrower"), promises to pay to the City of Chula
Vista ("City"), or order, the sum of ($) with interest
accruing thereon as hereinafter provided, and payable as set forth below. It is understood
that the City may transfer this Note. The lender or anyone who takes this Note by transfer
and who is entitled to receive payments under this Note will be called the "Note Holder".
2. No Interest. This Note will bear no interest unless the Borrower defaults under the
terms of this Note, the Deed of Trust securing it and/or the Covenants, Conditions and
Restrictions affecting the Property. In the event of default, interest from the Date of this
Note shall be calculated at:
a) The rate equal to the interest rate of the senior trust deed or, in the event of
no senior trust deed,
b) The prevailing rate of the Prime Rate as published in the Wall Street Journal,
on the date of default.
3. Payments and Term. The term of this Note extends for 30 years from the date of the
Deed of Trust or until the Borrower sells, rents, refinances, transfers or changes the title of
the property designated on the accompanying Deed of Trust, whichever occurs earlier. A
transfer constitutes sold, or otherwise conveyed voluntary or involuntary, by operation of
law or otherwise. No delay or omission on the part of the City shall operate as a waiver of
such right of repayment or of any other right of this Note. The principal amount of this
Note, together with the City's proportionate share of any appreciation as further defined,
shall be due and payable on or before the date provided by the City in the Notice of
Acceleration, which shall not be less than thirty (30) days, if all or any part of the Property
or any interest in it is sold, rented, refinanced, conveyed, or transferred or if a beneficial
interest in Borrower is sold, rented, refinanced, conveyed, or transferred (or if a beneficial
interest in Borrower is sold, rented, refinanced, conveyed, or transferred and Borrower is
not a natural person) (herein called "Transfer) without the prior written consent of the City,
as further defined in Section 6 below. The City shall not exercise this right of acceleration
if prohibited by federal law as of the date of the Deed of Trust or if the City has executed a
separate written waiver of this option. All payments made under this Note shall be paid in
Page 1 of5
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lawful money of the United States to the City of Chula Vista at 276 Fourth Avenue, Chula
Vista, CA 91910, Attention: Community Development Department, Housing Division.
4. Market Value Appreciation. In addition to the principal amount of this Note, City
shall recapture its proportionate share of any appreciation. iThe City's proportionate share
of appreciation shall be equal to the ratio of the initial subsidy to the fair market value of
the home at the time of initial sale. Borrower shall retain value of any improvements,
down payment and proportionate share of any appreciation. "Improvements" shall be
defined as any permanent improvement (I.e. fixed improvement that will remain with the
property such as installation of hardwood floors) approved by the City in writing. The
principal amount of the Note and proportionate share of any appreciation are immediately
due and payable upon Transfer.
A sample calculation is illustrated below:
Initial Fair Market Sales Price $
Moderate Income Affordable Price $
City Share (Fair Market Price-Moderate Income Price) $
Percentaee Value of Citv Share
400,000
(280,000)
120,000
33.0%
Re-Sale Price
Assumed Initial 80rrower Downpayment and Improvement Costs
$450,000
$16,000
Re-Sale Price-Initial Fair Market Price
Appreciation
$50,000
$34,000
TOTAL DUE TO CITY
TOTAL DUE TO HOMEOWNER
$
$
131,220
318 780
5. Market Value Depreciation. If upon resale, the market value is lower than the
initial sales price, then the Note amount shall be reduced by subtracting the current market
value from the initial sales price. The resulting sum will then be subtracted from the Note
amount.
6. Transfer. A transfer constitutes sold, or otherwise conveyed, voluntary or
involuntary, by operation of law or otherwise. The following shall not constitute a Transfer,
but require the prior written consent of the City:
(a) A transfer of the Property from a deceased Borrower to the surviving spouse
of the Borrower if the surviving spouse is also named as a Borrower;
(b) A transfer of the Property by a Borrower to h is/her spouse pursuant to which
the spouse becomes a co-owner of the Property;
(c) A transfer of the Property resulting from a decree of dissolution of the
marriage or legal separation or from a property settlement agreement
incidental to such a decree which requires the Borrower to continue to
make payments on the Note and by which a spouse who is already a
Borrower becomes the sole owner of the Property;
Page 2 of 5
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Initials
(d) A transfer of the Property to a Borrower to an inter-vivos trust in which the
Borrower is the sole beneficiary;
A transfer by means of encumbering the Property with a lien that is a junior lien to the lien
securing the loan to Borrower evidenced by the Deed of Trust.
(e)
A conveyance by sale or otherwise, to a party which the City of
Chula Vista City Manager, or his designee, determines meets all the
requirements to be deemed a "Low Income Buyer" as defined in the
"Affordable Housing Regulatory Agreement" filed for record with the
County recorder of the San Diego County on , 2006 as
Document No. 2006-
7. Prepayment. Borrower has the right to prepay the principal without incurring any
penalty, apart from any interest that may be due under default provisions above. In the
event that Borrower chooses to prepay the Note, Borrower must notify Note Holder in
writing. If the property is not for sale or in escrow at the time of such notification, no
equity share will be due. Only the full amount of the principal will be due to the City. If
the property is for sale or in escrow at the time of notification, the Note will be part of the
escrow and Borrower will incur appropriate equity share as an obligation.
8. Default Under Deed of Trust. Notwithstanding any other provisions of the Note, if
default occurs in any of the covenants or agreements contained in the Deed of Trust
securing this Note, this Note shall immediately become due and payable in full at the
option of the City. In the event the City exercises such option, the amounts due and
payable shall be the principal balance remaining on the Note and other amounts owing,
together with accrued but unpaid interest as described above.
9. Attorneys' Fees. Should suit be commenced to collect on this Note, or any portion
thereof, such sum as the court may deem reasonable shall be added hereto as attorneys'
fees.
10. Time. Time is of the essence herein.
11. Amendments. This Note may not be modified or amended except by an instrument in
writing expressing such intention and signed by an authorized representative of the City
and Borrower.
12.Severability. If any term or provIsion hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity and binding effect of the
remainder of this Note upon the parties.
13.Borrower's Waivers. Borrower waives any rights to require the City to perform certain
acts. Those acts are:
(a) To demand payment of amounts due (known as "presentment").
(b) To give notice that amounts due have not been paid (known as "notice of
dishonor").
Page 3 015
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(c) To obtain an official certification of non-payment (known as "protest").
14. GivinJ: of Notices. Any notice that must be given to Borrower under this Note will be
given by delivering it or by mailing it first class mail or by certified mail, return receipt
requested, addressed to Borrower at the address set forth above. A notice that must be
given to the City under this Note will be given by mailing it certified mail, return receipt
request, to the City at the address stated in Section 3 above. Any party may change its
address by a notice given to the other party in the manner set forth in this Section.
15. Joint and Several Responsibility. If more than one person executes this Note, each is
fully and personally obligated to pay the full amount owed and to keep all promises in this
Note.
Page 4 of5
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Date:
NOTICE TO BORROWER
Do not sign this Note if it contains blank spaces.
All spaces should be completed before you sign.
Borrower's Name
Borrower's Name
Page 5 015
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Initials
EXHIBIT C
FORM OF SILENT SECOND TRUST DEED
EXHIBIT C
13-75
065550-0009 251465.3 doc
WHEN RECORDED PLEASE MAil TO:
C11Y OF CHULA VISTA
Community Development Department
Housing Division
276 Fourth Avenue
Chula Vista, CA 91910
THI
RE
ER'
DEED OF TRUST
THIS DEED OF TRUST, is made this day of . 200_, among the
Trustor(s), . a (herein "Borrower"), and the City of Chula Vista
(herein "Beneficiary") a public body, corporate and politic, whose address is 276 Fourth Avenue,
Chula Vista, CA 91910.
BORROWER, in consideration of the indebtedness herein recited and the trust herein created,
irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described
property located in the City of Chula Vista, County of San Diego, State of California [which has the
address of property address here (herein "Property Address")]:
SEE EXHIBIT "A" ATTACHED HERETO FOR lEGAL DESCRIPTION
Said Deed of Trust is second and subsequent in lien to a First Deed of Trust recording concurrently
herewith in favor of the first lien holder, xxx, a California Corporation in the amount of ~ and
DOlt 00 Dollars;
TOGETHER with all the improvements now and hereafter erected on the Property, and all easements,
rights, appurtenances and rents (subject however to the rights and authorities given herein to the
Beneficiary to collect and apply such rents), all of which shall be deemed to be and remain part of the
property covered by this Deed of Trust; and all of the foregoing, together with said property (or the
leasehold estate if this Deed of Trust is on a leasehold) are hereinafter referred to as the "Property";
TO SECURE to the Beneficiary the repayment of the indebtedness evidenced by Borrower's
promissory note, dated , 200_ and extensions and renewals thereof (herein
"Note"), in the principal sum of xxx and 00/'0 Dollars ($xxx), if not sooner paid, is due and payable
30 years from the date of this Deed of Trust. If all or any part of the Property or any interest in the
property is sold, rented, refinanced, conveyed or transferred, (each of which is called a "Transfer")
without the prior written consent of Beneficiary the Note shall become due and payable
immediately. Upon resale Borrower shall retain value of any improvements, down payment and
proportionate share of any appreciation. City shall recapture its proportionate share of any
appreciation, which is equal to the percentage by which the initial sales price of the moderate
Pagelofl3
Initials
13-76
income unit was less than the fair market value of the home at the initial time of sale. This
recapture provision shall be more fully explained in the related Promissory Note.
Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the
right to grant and convey the Property, and that the Borrower's subject property is unencumbered
except for encumbrances of record. Borrower covenants that Borrower warrants and will defend
generally the title to the Property against all claims and demands, subject to encumbrances of
record.
UNIFORM COVENANTS
Borrower and Beneficiary covenant and agree as follows:
1. Payment of Principal and Interest. Borrower shall promptly pay when due the principal and
interest indebtedness evidenced by the Note.
If payment of the indebtedness is required due to a Sale of the Property where the purchase
price is equal to or less than the Acquisition Cost of the Property, assuming an open and
competitive sale, then repayment shall be made in the following order and amount:
(a) Outstanding principal and interest balance of the primary lender's loan;
(b) Borrower's initial down-payment investment and normal cost of sale;
(c) Borrower's value of any permanent improvements approved by the City;
(d) Accrued simple interest on the principal amount of the Beneficiary's
loan at the interest rate and the terms contained in the Promissory Note;
(e) The principal amount of the Beneficiary's loan; and
(f) Any remainder to borrower.
2. Market Value Appreciation/Depreciation. In addition to the principal amount of this Note, City
shall recapture City's proportionate share of any appreciation. The City's proportionate share of
appreciation shall be equal to the ratio of the initial subsidy to the fair market value of the home at
the time of initial sale. Borrower shall retain value of any improvements, down payment and
proportionate share of any appreciation. "Improvements" shall be defined as any permanent
improvement (i.e. fixed improvement that will remain with the property such as installation of
hardwood floors) approved by the City in writing. The principal amount of the Note and
proportionate share of any appreciation are immediately due and payable upon Transfer.
If upon resale, the market value is lower than the initial market value, then the Note amount shall
be reduced by subtracting the current market value from the initial sales price. The resulting sum
will then be subtracted from the Note amount.
Page 2 of 13
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13-77
3. Funds for Taxes and Insurance. To protect the security of the Deed of Trust, Trustor agrees to
pay, at least ten (10) days before delinquency, all taxes and assessments affecting said property:
when due, all encumbrances, charges and liens, with interest, on said property or any part thereof,
which appear to be prior or superior hereto: and all costs, fees and expenses of this Deed of Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary,
without obligation to do so and without notice to or demand upon Trustor and without releasing
Trustor from any obligation hereof, may make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to
enter upon said property for such purposes: appear in and defend any action or proceeding purporting
to affect the security hereof or the rights powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or
superior hereto: and, in exercising any such powers, pay necessary expenses, employ counsel and pay
hislher reasonable fees.
4. Application of Payments. Unless applicable law provides otherwise, all payments received by
Beneficiary under section 1 and 2 shall be applied; first, to any prepayment charges due under the
Note; second, to amounts payable under section 2: third, to interest due; fourth, to principal due: and
last, to any late charges due under the Note.
5. Prior Mor1llalles and Deeds of Trust; Charlles; Liens. Borrower shall perform all of Borrower's
obligations under any mortgage, deed of trust or other security agreement with a lien which has
priority over this Deed of Trust, including Borrower's covenants to make payments when due.
Borrower shall payor cause to be paid all taxes, assessments and other charges, fines and impositions
attributable to the Property which may attain a priority over this Deed of Trust, and leasehold
payments or ground rents, if any.
6. Hazard Insurance. Borrower shall keep the improvement(s) now existing or hereinafter erected
on the Property insured against loss by fire, hazards included within the term "extended coverage",
and such other hazards as Beneficiary may require and in such amounts and for such periods as
Beneficiary may require.
The insurance carrier providing the insurance shall be chosen by Borrower subject to
approval by Beneficiary; provided, .that such approval will not be unreasonably withheld. All
insurance policies and renewals thereof shall be in a form acceptable to Beneficiary and shall
include a standard mortgage clause in favor of and in a form acceptable to Beneficiary. Beneficiary
has the right to hold the pol icies and renewals thereof, subject to the terms of any mortgage, deed
of trust or other security agreement with a lien which has priority over this Deed of Trust.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and
Beneficiary. Beneficiary may make proof of loss if not made promptly by Borrower.
If Property is abandoned by Borrower, or if Borrower fails to respond to Beneficiary within
30 days from the date notice is mailed by Beneficiary to Borrower that the insurance carrier offers
to settle a claim for insurance benefits, Beneficiary is authorized to collect and apply the insurance
proceeds at Beneficiary's option either to "restoration or repair of the Property or to the sums
secured by this Deed of Trust.
Page 3 of 13
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13-78
7. Preservation and Maintenance of Property, Condominium, Cooperatives, Planned Unit
Developments. Borrower will keep the Property in good repair and shall not commit waste or
permit impairment or deterioration of the Property and shall maintain property including the
principle house, garage, and out buildings as well as lawn maintenance, and shall comply with the
provisions of any lease if this Deed of Trust is on a leasehold. If this Deed of Trust is on a unit in a
condominium or a planned unit development, Borrower shall perform all of Borrower's obligations
under the declaration or covenants, conditions and restrictions, creating or governing the
condominium, planned unit development, the by-laws and regulations of the condominium or
planned unit development, and constituent documents.
8. Protection of Beneficiary Security. If Borrower fails to perform the covenants and agreements
contained in this Deed of Trust, or if any action or proceeding is commenced which materially
affects Beneficiary's interest in the Property, then Beneficiary, at Beneficiary's option, upon notice
to Borrower, may make such appearances, disburse such sums including reasonable attorneys'
fees, and take such action as is necessary to protect Beneficiary's interest. If Beneficiary required
mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower
shall pay the premiums required to maintain such insurance in effect until such time as the
requirement for such insurance terminates in accordance with Borrower's and Beneficiary's written
agreement or applicable law.
Any amounts disbursed by Beneficiary pursuant to this Paragraph, with interest thereon, at
the original Note rate, will become additional indebtedness of Borrower secured by this Deed of
Trust. Unless Borrower and Beneficiary agree to other terms of payment, such amounts will be
payable upon notice from Beneficiary to Borrower requesting payment thereof. Nothing contained
in this Paragraph will require Beneficiary to incur any expense or take any action hereunder.
9. Inspection. Beneficiary may make or cause to be made reasonable entries upon and
inspections of the Property, provided that Beneficiary will give the Borrower notice prior to any
such inspection specifying reasonable cause therefor related to Beneficiary's interest in the
Property .
10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in
connection with any condemnation or other taking the Property, or part thereof, or for conveyance
in lieu of condemnation, are hereby assigned and shall be paid to Beneficiary subject to the terms
of any mortgage, deed of trust or other security agreement with a lien which has priority over this
Deed of Trust.
11. Borrower Not Released; Forbearance by Beneficiary Not a Waiver. Extension of the time for
payment or modification of payment of the sums secured by this Deed of Trust granted by
Beneficiary to any successor in interest of Borrower shall not operate to release, in any manner, the
liability of the original Borrower and Borrower's successors in interest. Beneficiary shall not be
required to commence proceedings against such successor or to extend time for payment or
otherwise modify payment of the sums secured by this Deed of Trust by reason of any demand
made by the original Borrower and Borrower's successors in interest. Any forbearance by
Beneficiary in exercising any right or remedy hereunder, or otherwise afforded by applicable law,
shall not be a waiver of or preclude the exercise of any such right or remedy.
12. Successors and AssiKns Bound, Joint and Several liability; Co-siKners. The covenants and
agreements herein contained shall bind, and the rights hereunder shall inure to, the respective
Page 4 of 13
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successors and assigns of Beneficiary and Borrower, subject to the provisions of Paragraph 16
hereof. All covenants and agreements of Borrower shall be joint and several. Any Borrower who
co-signs this Deed of Trust, but does not execute the Note:
(a) Is co-signing this Deed of Trust only to grant and convey that Borrower's interest in
the Property to Trustee under the terms of this Deed of Trust,
(b) Is not personally liable on the Note or under this Deed of Trust, and
(c) Agrees that the Beneficiary and any other Borrower hereunder may agree to extend,
modify, forbear, or make any other accommodations with regard to the terms of this
Deed of Trust or the Note, without that Borrower's consent and without releasing
that Borrower or modifying this Deed of Trust as to that Borrower's interest in the
Property.
13. Notice. Except for any notice required under applicable law to be given in another manner,
any notice to Borrower provided for in this Deed of Trust shall be given by delivering it or by
mailing such notice by certified mail, addressed to Borrower at the Property address or such other
address as Borrower may designate by notice to Beneficiary as provided herein, and
(a) Any notice to Beneficiary will be given by certified mail, return receipt requested, to
Beneficiary address stated herein or to such other address as Beneficiary may designate
by notice to Borrower as provided herein.
(b) Any Notice provided for in this Deed of Trust shall be deemed to have been given
to Borrower or Beneficiary when given in the manner designated herein.
14. Governinlllaw, Severability. The state and local laws applicable to this Deed of Trust shall be
the laws of the jurisdiction in which the Property is located. The foregoing sentence shall not limit
the applicability of Federal law to this Deed of Trust. In the event that any provision or clause of
this Deed of Trust or the Note conflicts with applicable law, such conflict shall not affect other
provisions of this Deed of Trust or the Note which can be given effect without the conflicting
provision, and to this end the provisions of this Deed of Trust and the Note are declared to be
severable. As used herein, "costs", "expenses" and "attorneys' fees" include all sums to the extent
not prohibited by applicable law or limited herein.
15. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and this Deed of
Trust at the time of execution or after recordation hereof.
16. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property
or any interest in it is sold, rented, refinanced, conveyed or transferred (or if a beneficial interest in
Borrower is sold, rented, refinanced, conveyed or transferred and Borrower is not a natural person),
the loan shall become immediately due and payable, unless approved by the City in accordance
with the provisions below.
The following shall not constitute a Transfer:
(a) A transfer of the Property from a deceased Borrower to the surviving spouse
of Borrower if the surviving spouse is also named as a Borrower;
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13-80
(b) A transfer of the Property by Borrower to his/her spouse pursuant to which
the spouse becomes a co-owner of the Property;
(c) A transfer of the Property resulting from a decree of dissolution of the
marriage or legal separation or from a property settlement agreement
incidental to such a decree which requires Borrower to continue to make
payments on the Note and by which a spouse who is already a Borrower
becomes the sole owner of the Property;
(d) A transfer of the Property by Borrower to an inter-vivos trust in which
Borrower is the sole beneficiary and which is done for estate planning
purposes only and does not result in any change in possession of the
Property;
(e) A refinancing to which Beneficiary under this Deed of Trust is obligated to
subordinate this Deed of Trust; and
(f) A refinancing which does not result in cash excess paid to Borrower or
which is used for debt consolidation, equity line of credit or similar
purposes.
(g) A conveyance by sale or otherwise, to a party which the City of
Chula Vista City Manager, or his designee, determines meets all the
requirements to be deemed a "Moderate Income Buyer" as defined in
the "Affordable Housing Regulatory Agreement" filed for record with
the County recorder of the San Diego County on , 2007 as
Document No. 2007-
Provided that Borrower is not in default under the terms of the Note or this Deed of Trust,
no interest shall accrue under the Note. Nothing contained in this Paragraph or Section 8 of the
Note shall be construed as a promise by Beneficiary to forgive or relinquish the right to seek
repayment of the principal of the Note.
NON-UNIFORM COVENANTS
Borrower and Beneficiary further covenant and agree as follows:
17. Acceleration, Remedies. Upon Borrower's breach of any covenant or agreement of Borrower
in this Deed of Trust, including the covenants to pay when due any sums secured by this Deed of
Trust, and those contained in paragraph 17 hereof, the Beneficiary, prior to acceleration, shall give
notice to Borrower as provided in Paragraph 12 hereof specifying:
(a) The breach;
(b) The action required to cure such breach;
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(c) A date, not less than 10 days from the date the notice is mai led to Borrower, by
which such breach must be cured; and
(d) That failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by this Deed of Trust and sale of the
Properly .
The notice shall further inform Borrower of the right to reinstate after acceleration and the
right to bring a court action to assert the nonexistence of a default or any other defense of Borrower
to acceleration of sale. If the breach is not cured on or before the date specified in the notice,
Beneficiary, at Beneficiary's option, may declare all of the sums secured by this Deed of Trust to be
immediately due and payable without further demand and may invoke the power of sale and any
other remedies permitted by applicable law. Beneficiary shall be entitled to collect all reasonable
costs and expenses incurred in pursuing the remedies provided. in this Paragraph 17, including, but
not limited to, reasonable attorneys' fees.
If Beneficiary invokes power of sale, Beneficiary shall execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Beneficiary's election to cause the
Property to be sold and shall cause such notice to be recorded in each county in which the
Property or some part thereof is located. Beneficiary or Trustee shall mail copies of such notice in
the manner prescribed by applicable law. Trustee shall give public notice of sale to the persons
and in the manner prescribed by applicable law. After the lapse of such time as may be required
by applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction
to the highest bidder at the time and place and under the terms designated in the notice of sale in
one or more parcels and in such order as Trustee may determine. Trustee may postpone sale of all
or any parcel of the Property by public announcement at the time and place of any previously
scheduled sale. Beneficiary or Beneficiary's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without
any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima
facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the
sale in the following order:
(a) To all reasonable costs and expenses of the sale, including, but not limited to,
reasonable Trustee's and attorneys' fees and costs of title evidence;
(b) To all sums secured by this Deed of Trust; and
c) The excess, if any, to the person or persons legally entitled thereto.
18. Borrower's Ri~ht to Reinstate. Not withstanding Beneficiary's acceleration of the sums
secured by this Deed of Trust due to Borrower's breach, Borrower shall have the right to have any
proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any time prior to
five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust
or at any time prior to entry of a judgment enforcing this Deed of Trust if:
(a) Borrower pays Beneficiary all sums, which would be then due under this Deed of
Trust, and the Note, had no acceleration occurred;
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(b) Borrower cures all breaches of any other covenants or agreements of Borrower
contained in the Deed of Trust;
(c) Borrower pays all reasonable expenses incurred by Beneficiary and Trustee in
enforcing the covenants and agreements of Borrower contained in this Deed of
Trust, and in enforcing Beneficiary's and Trustee's remedies as provided in
Paragraph 1B hereof, including, but not limited to, reasonable attorneys' fees; and
(d) Borrower takes such action as Beneficiary may reasonably require to assure that the
lien of this Deed of Trust, Beneficiary's interest in the Property and Borrower's
obligation to pay the sums secured by this Deed of Trust shall continue unimpaired.
Upon such payment and cure by Borrower, this Deed of Trust and the obligations secured
hereby shall remain in full force and effect as if no acceleration had occurred.
19. AssiKnment of Rents; Appointment of Receiver; Beneficiary in Possession. As additional
security hereunder, Borrower hereby assigns to Beneficiary the rents of the Property, provided that
Borrower shall, prior to any default by Borrower in payment of any indebtedness secured hereby or
in performance of any agreement hereunder, have the right to collect and retain such rents as they
become due and payable. .
Upon any such default, the Beneficiary, in person, by agent or by judicially appointed
receiver, shall be entitled to enter upon, take possession of and manage the Property and to collect
the rents of the property including those past due. All rents collected by Beneficiary or the receiver
shall be appl ied first to payment of the cost of management of the Property and collection of rents,
including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable
attorneys' fees, and then to the sums secured by this Deed of Trust. Beneficiary and the receiver
shall be liable to account only for those rents actually received. The entering upon and taking
possession of said property and the collection of such rents and the application thereof as aforesaid
shall not cure or waive any default or notice of default hereunder or invalidate any act done
pursuant to such notice.
20. Reconveyance. Upon payment of all sums secured by this Deed of Trust, Beneficiary shall
request Trustee to reconvey the Property an<;l will surrender this Deed of Trust and all Notes
evidencing indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the
Property without warranty and without charge to the person or persons legally entitled thereto.
Such person or persons shall pay all costs of recordation, if any.
21. Substitute Trustee. The Beneficiary, or any successor in ownership of any indebtedness
secured hereby, may from time to time appoint a successor trustee to any Trustee appointed
hereunder by an instrument executed and acknowledged by Beneficiary and recorded in the office
of the Recorder of the county where the Property is located. The instrument shall contain the
name of the original Lender, Trustee and Borrower, the book and page where this Instrument is
recorded and the name and address of the successor trustee. The successor trustee shall, without
conveyance of the Property, succeed to all the title, power and duties conferred upon the Trustee
herein and by applicable law. This procedure for substitution of trustee shall govern to the
exclusion of all other provisions for substitution.
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13-83
22. Request for Notices. Borrower requests that copies of the Notice of Default and Notice of Sale
be sent to Borrower's address, which is the Property Address. Beneficiary requests that copies of
notices of foreclosure from the holder of any lien which has priority over this Deed of Trust be sent
to Beneficiary's address, as set forth on Page One of this Deed of Trust as provided by Section
2924b of the Civil Code of California.
23. Fee for Requested Statements. The Beneficiary may charge a fee not to exceed Sixty Dollars
($60.00) for furnishing the statement of obligation as provided in Section 2943 of the Civil Code of
California.
24. Deed of Trust Rider. The Deed of Trust Rider executed by Borrower is attached and made part
of th is Deed of Trust.
25. Covenants, Conditions and Restrictions. The Property is subject to Covenants, Conditions and
Restrictions ("Restrictions") between the Beneficiary and the Borrower, that are not attached hereto
but are incorporated by reference. Borrower acknowledges receipt of said Restrictions and agrees
for him/her self/ his/her heirs, successors and assigns to be bound by the same.
26. Warranties of Borrower. Borrower warrants to City that:
(a) Borrower is a first-time homebuyer; that is, s/he has not owned a home, or had any
ownership interest in a home within a three-year (3 year) period immediately
preceding the date of this Deed of Trust, and
(b) That Borrower's annual gross income does not exceed eighty percent (80%) of the
median income for the San Diego metropolitan area, as adjusted for family size, as
said median income is determined by the U.S. Department of Housing and Urban
Development (HUD), on the latter of:
1. The date of initial application to the City; or
2. The date of the recordation of this Deed of Trust.
(c) That for so long as Borrower owns the Property, Borrower will reside in the
Property as Borrower's principal place of residence. Borrower agrees not to sublet,
lease or rent out the Property during the term of this Deed of Trust.
27. Subordination. The Beneficiary and Borrower acknowledge and agree that this Deed of Trust
is subject to and will subordinate in all respects to the liens, terms, covenants and conditions of the
First Trust Deed and to all advances heretofore made or which may be hereafter be made pursuant
to the First Trust Deed including all sums advanced for the purpose of:
(a) Protecting or further securing the lien of the First Trust Deed, curing defaults by the
Borrower under the First Trust Deed or for any other purpose expressly permitted
by the First Trust Deed, and
(b) Constructing, renovating, repairing, furnishing, fixturing or equipping the Property.
Page 9 of 13
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13-84
The terms and provisions of the First Trust Deed are paramount and controlling, and they
supersede any other terms and provisions hereof in conflict therewith. In the event of a foreclosure
of deed in lieu of foreclosure of the First Trust Deed, any provisions herein or any provision in any
other collateral agreement restricting the use of the Property to low or moderate income
households or otherwise restricting the Borrower's ability to sell the Property shall have no further
force or effect on subsequent owners or purchasers of the Property. Any person, including his/her
successors or assigns (other than the Borrower or a related entity of the Borrower), receiving title to
the Property through a foreclosure or deed in lieu of foreclosure of the First Trust Deed shall
receive title to the property free and clear from such restrictions.
Further, if the Primary Lender acquires title to the Property pursuant to a deed in lieu of
foreclosure, the lien of this Deed of Trust shall automatically terminate upon the Primary Lender's
acquisition of title, provided that:
(a) The Beneficiary has been given written notice of a default under the First Trust
Deed, and
(b) The Beneficiary shall not have cured the default under the First Trust Deed, or
diligently pursued curing the default as determined by the Primary Lender, within
the 60-day period provided in such notice sent to the Beneficiary.
The Beneficiary and Borrower further acknowledge and agree that this Deed of Trust will
only subordinate for a rate and term refinance of the First Trust Deed at the discretion of the
Beneficiary and shall not be subject to subordination for a cash out refinance, equity line of credit
or any other such form of refinance as deemed inappropriate by the Beneficiary.
28. Funds for Taxes and Insurance. The Beneficiary will waive collection of impounds for taxes
and assessments (including condominium, planned unit development and planned residential
development assessments, if any). Borrower will make all payments for impounds to First Trust
Deed holder.
29. Riders to this Security Instrument. If one or more riders are executed by Borrower and
recorded together with this Security Instrument, the covenants and agreements of each such rider
shall be incorporated into and shall amend and supplement the covenants and agreements of this
Security Instrument as if the rider(s) were a part of this Security Instrument. [Check applicable
box(es)]
o Transfer Rider
o 1-4 Family Rider
o Other(s) [specify]:
o Condominium Rider
o PU D Rider
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this
Security Instrument and in any rider(s) executed by Borrower and recorded with it.
Page 10 of 13
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13-85
ACKNOWLEDGMENT:
State of California
County of San Diego
On
before me,
, Notary, personally appeared
personally known to me (or 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.
WITNESS my hand and official seal.
Signature:
DO NOT RECORD THIS PAGE
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13-86
REQUEST FOR RECONVEYANCE
TO TRUSTEE:
The undersigned is the holder of the note or notes secured by this Deed of Trust. Said note or
notes, together with all other indebtedness secured by this Deed of Trust, have been paid in full.
You are hereby directed to cancel said note or notes and this Deed of Trust, which are delivered
hereby, and to reconvey, without warranty, all the estate now held by you under this Deed of Trust
to the person or persons legally entitled thereto.
Dated:
DO NOT LOSE OR DESTROY THIS DEED OF TRUST OR THE NOTE WHICH IT SECURES. BOTH MUST BE
DElIVERED TO THE TRUSTEE FOR CANCELLATION BEFORE RECONVEYANCE WILL BE MADE.
Page12ofl3
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EXHIBIT NAN
LEGAL DESCRIPTION
Page 13 of 13
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EXHIBIT D
FORM OF SUPPLEMENTAL BUYER APPLICATION
EXHmIT D
13-89
065550-0009 251465.3 doc
SCHEDULE 1
LIST OF MARKET RATE PRICES
SCHEDULE 1
065550-0009 251465.3 doc
13-90
caurorrua Laws: Uove=ent Code> ::iectlOn 65915-6591 g
Page 1 of7 .
~ ::> Cafifornia Laws ,. Government Code,. Section 65915-65918
{Caution1
CALIFORNIA GOVERNMENT CODE .
65915. (a) When an applicant seeks a density bonus for a housing development within, or for the donation of
land for hOUSing within, the jurisdiction of a dty, county, or dty and county; that local govemment shall provide
the applicant incentives or concessions fortlie production of housing'units and child care.fadlities as prescribed
in this section. All cities, counties, or dties and counties shall adopt an ordinance that spedfies how compLiance
with this section wilt be implemen1;ed.' ,
(b) (1) A dty, county, or dty and county shall grant one density bonus, the amount of which shall be as
spedfied in subdivision (g), and incentlves or concessions, as described in subdivision (d), whim an aPplicant for
a housing development seeks and agrees to constrljct a housing development, excluding any units permitted by
the density bonus awarded pursuant to this s,dion, that will contain at least anyone of the following:'
(A) Ten percent of the total units of a housing development for lower income households, as defined in
Section 50079.5 of the Health and Safety Code;
(B) FIVe percent of the total units" of a housing development for very low income households, as defined in
Section 50105 of the Health and Safety Code. .
(C) A seniardtizen housing development as defined in Sections 51.3 and 51.12 of the Civil Code, or '
md~ilehome park that limits residency based on age requirements for housing for older persons pUrouant to .
Section 798.76 or 799.5 of the Ciyil Code. .
(D) Ten percent of the total dwelling units in a common interest development as defined in Section 1351 of-
the Civil Code for persons and families of moderate income, as defined in Section 50093 of the Health and Safety
Code, provided that all units in the development are offered to the public for purchase.
. (2) For purposes of cal~ulating the amount of the density bonus pursuant to subdivision (f), the applicant who
requests a density bonus pursuant to this subdivision shall elect whether the bonus shall be awarded on the basis
of subparagraph (A), (B), (C), or (D) of paragraph (1).
(c) (1) "An applicant shall agree to, and the city, county, or dty and county shall ensure, continued
affordability of all low-and very low income units that qualified the applicant for the award of the density bonus
, for 30 years or a longer period of time if required by the construction or mortgage'finandng assistance proilram,
mortgage insurance program, or rental sUb?idy program. Rents for the lower income density bonus units shall be
set at an affordable rent as defined in Section 50053 of the Health and Safety Code. o.wner-occupied units shalt
be available at an affordable housing cost as defined in Section 50052.5 of the Health and Safety Code. .
(2) An applicant shall agree to, and the dty, county, or dty and county shall ensure that, the initial occupant
of the moderate-income units that are directly related to the receipt of the density bonus in the common
interest development, as defined in Section 1351 of the Civil Code, are persons and families of moderate
income, as defined in Section 50.093 of the Health and Safety Code, and that the units ar~ offered at an .
affordable housing cost, as that cost is defined in Section 500.52.5 of the Health and safety Code. The'local
government shall enforce an' equity-sharing agreement, unless it is in conflict 10th the requirements cif another
public funding source or law. The following apply to the equity-sharing agreement: -
(A) Upon resale, the seller of the unit shall retain the value of any improvements, the down payment, and the
.
.
13-91
ATTACHMENT 8
California Laws: Goveminent Code> Section 65915-6591 g
Page 2 of7
seUer's proportionate share of appreciation. The local govemment shall recapture any initial subsidy and its
proportionate share of appreciation, which shall then be used within three'years for any of the purposes
described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote homeownership.
(8) For purposes of this subdivision, the, local government's initial subsidy shall be equal to the fair market
value of the home at the time of initial sale minus the initial sale price to the moderate-income household, plus
the amount of any downpayjnent assistance or mortgage assistance. If upon resale the market value is lower than
the initial market value, then the value at the time of the resale shall be used as the initial market value:
(C) For purposes of this subdivision, the local government's proportionate share' of appreciation shall be equal
to the ratio of the initial subsidy to the fair market value of the home at the time of,initial sale.
(d) (1) An applicant for a density bonus pursuant to subdivision (b) may submit to a dty, county, or city and
county a proposal for the specific. incentives or concessions that the applicant requests pursuant to this section,
and may request a meeting with,the city, county, or city and county. The city, county, or city and county shall '
grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a
written finding, based'upon substantial evidence, of either of the following:
(A} The concession or incentive is not required in order to provide for affordable hOUsing costs, as defined in
Section 50051.5 of the Health and Safety Code, or for rents for the targeted units to be set as spedfied in '
subdMsion (c). ' ,
(8) The concession or incentive would have a specific adverse impact, as defined in par,lgraph (2) of
subdivision (d) of Section 65589.5, upon public health and safety or the physical environment or on any real
property that is listed in the Califomia Register of Historical.Resources and for which there is no feasible method
to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable
to row- and moderate-income 'hous",holds. '
(2) The applicant shall receive the following number of incentives or concessions:
(A) One incentive or concession for projects that indude at least 10 percent of the total units for lower
income households, at least 5 percent for very low income households, or at least 10 percent for persons and
families of moderate incQme in a common interest development. .
(B) Two incentives or concessions for projects that include at least 20 percent of the total units for lower
income households, at least 10 percent for very low income households, or at least 20 percent for persons and
families of moderate income in a com,mon intere;t cjevelopment.
(C) Three incentives or concessions for projects that include at least 30 percent" of the total units for lower
income households, at least 15 percent for very low income households, or at least 30 percent for persons <lnd
f~milies of moderate income in'a common interest development~
(3) The applicant may initiate judicial proceedings if the city, county, or city and county refuses to grant a
requested density bonus, incentive, or concession. If a court finds that the refusal to grant a requested dimsity
bonus, incentive, or concession is in violation of this section, the cour): shall award the plaintiff reasonable
attomey's fees and costs of suit. Nothing in this subdivision shall be interpreted to require a local govemment to
grant an incentive or concession that has a spedfic, adverse impact, as defined in paragraph (2) of subdivision
(d) of Section 65589.5, upon health, safety, or the physical environment, and for which there is no feasible
method to satisfactorily mitigate or avoid the spedfic adverse impact. Nothing in this subdivision shall be
interpreted to require a local government to grant an incentive or concession that would have an adverse impaCt
on any real property that is listed in the Califomia Register of Historical Resources. The city, county, Dr city and
county shall establish procedures for carrying out this section, that shal! include legislative body approval of the
means of compliance with this section. The city, county, or city and county shall also,establish procedures for
waiving or, modifying development and zoning standards that would otherwise inhibit the utilization of the
density bonus on specific sites. These procedures shall include, but not be limited 1;0, such items as minimum lot
size, side yard setbacks, and placement pf public works improvements.
(e) In no case may a city, county, or city and county apply any deVelopment standard that will have the
effect of precluding the construction of a development meeting the criteria of subdivision (b) at the densities or
with the concessions or incentives permitted by this section. An applicant may submit to a city, county, or city
and county a proposal for the waiver or reduction of development standards and may request a meeting with the
. city, county, or city and county. If a court finds that the refusal to grant a waiver or reduction of development
standards is in violation of this section, the court shall award the plaintiff reasonable attomey's fees and costs of
suit. Nothing in this subdivision shall be interpreted to require a local government to waive or reduce
development standards if the waiver or reduction would have a specific, adverse impact, as defined in paragraph
(2) of subdivisiDn (d) of Section 65589.5, upon health, safety, or the physical envir'inment, and fo~ which there is
.
13":'92
California Laws: Gove=ent Code> Section 65915-65918
Page 3 of7 ;
no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subdivision
shall be interpreted to require a local govemment to waive or reduce development standards that would have an
adverse impact on any real property that is listed in the California Register of Historical Resources.
(f) The applicant shall show that the waiver or modification is necessary to make the housing units
economically feasible.
(g) For the purposes of this chapter, "density bOnUS' meaflS a density increase over the otherwise maximum
allowable residential density under the applicable zoning ordinance and land use element of the general plan as
of the date of application by the applicant to the dty, county; or dty and county. The applicant 'may elect to
accept a lesser percentage of density bonus. The amount of density bonus to which the applicant is entitled shall
vary according to the amount by which the percentage of affordable housing units,exceeds the percentage
established in subdivision (b).
(1) For hOUsing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision (b), the
density bonus shall be calculated as follows: Percentage Low-Income Percentage Density Bonus Units 102011
21.512231324.514261527.51730.518321933.52035
(2) For housing developments meeting the criteria of subparagraph (B), of paragraph (1) of subdivision (b), the
density bonus shall be calculated as follows: percentage Very Low Percentage Density Bonus Income Units 5 20 6
22.5725827.59301032.51135 ,
(3) For housing developments meeting the criteria of subparagraph (C) of paragraph (i) of subdivision (b), the
density bonus shall be 20 percent.
(4) For housing developments meeting the criteria of subparagraph (D) of paragraph (1) of subdivision (b), the
density bonus shall be calculated as follows: Percentage Moderate- Percentage Density Bonus Income Units 10 5
1161271381491510161117121813191420152116221723182419 25 20262127221823292430
25 31,26322733 28 34 29 35 30 36 31 373238 33 393440 35
(5) All density calculations resulting in fra~onal units shall be rounded up to the next whole number. The
granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, local
coastal plan amendment, zoning change, or other discretionary approval. As used in subdivision (b), "total units'
or "total dwelling units" does not indude units permitted by a density bonus awarded pursuant to this section or
any local law granting a greater density bonus. The density bonus provided by this s~on shall apply to housing
developments consisting of five or more dwelling units. '
(h) (1) When an applicant for a tentative ~ubdivision map, parc;el map, or othe,r residential d~velopment
approval donates land to a city, county, or dty and county as provided for in this subdivision, the applic'ant shat!
be entitled to a ,15-percent increase above the otherwise maximum allowable residential density under the
applicable zoning ordinance and'land use element of the general plan for the entire development, as follows:
Percentage Very Low Percentage Densfty Bonus Income 10 15 111(, 12 1713 18 141915201621 17 22 18 2319
24201521 2(, 22 27 23,282429253026 31 27322833 29 34 30 35
(2) This increase shall qe in addition 'to any increase in density mandated by subdivision (b), up to a maximum
combined mandated density increase of 35 percent if an applicant seeks both the increase required pursuant to
this subdivision and subdivision (b). All density calculations resulting in fractional units shall be rounded up to
the next whole number. Nothing in this subdivision shall be construed to enlarge Dr diminish the authority of a
city, county) or dty and county to require a dev.eloper to donate 'land as a condition of development. An
applicant shall be eligible for the increased density bonus described in this subdivision if all of the following
conqitions are met:
(A) The applicant donates and tranSFers the land no later than the date of approval of the final subdivision L
map, parcel map, or residential development application.
(8) The developable acreage and zoning classification of the land being transferred are sufficient to permit'
construction of units affordable to very low income households in an amount not less than 10, percent of the
number of residential units of the proposed development.
(C) The transferred land is at least one acre in size or of suffident size to pel'T11it development of at least 40
, units, has the appropriate general plan designation, is appropriately zoned for deyelopment as affordable
housing, and is or will be served by adequate public fadlities and infrastructure. The land shall have appropriate
zoning and development standards to make the deve10pment of the affordable units feasible. No later than the
date of approval of the final subdivision map, parcel map, or of the residential development, the transferred
land shall have all of the permits and approvals, other than building permits, necessary for'the development of
the very low income housing units on the transferred land, except that the local government may subject the
proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2
, , .
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Calif"{)rIDa Laws: Gove=ent Code> Section 65915-65918
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if the design is not reviewed by the local government prior to the time of traJisfer.
(D) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued
affordability of the units consistent with paragraphs (1) and (2) of subdivision (c), which shall be recorded on the
property at the time of dedication.
(E) The land is transferred to the local agency or tb a housing developer approved by the local agency. The
local agency may require the applicant to identify and transfer the land to the developer. '
(F) The transferred land shall be within the boundary of the proposed development or, if the local agency "
agrees, within one-quarter mile of the boundary of the proposed development.
(i) (1) When an applicant proposes to construct a housing development that conforms to the requirements of'
subdivision (b) and includes a child care fadlity that will be located on the premises of, as part of, or adjacent
to, the project, the dty, county, or dty and county shall grant either of the following:
(A) An additional density bonus that is an amount of square feet'of residential space that is equal to or
greater than the amount of square feet in the child care fadlity.
(B) An additional concession or incentive that contributes significantly to the economic feasibility of the
construction of the child care fadljty.
(2) The dty, county, or dty and county shall require, as a condition of approving the housing development,
that the following occur:
(A) The child care fadlity shall remain in operation for a period of time that is as long as or longer than the
period of time during which the density bonus units are required to remain affordable pursuant to subdivision
~). ' ,
,(B) Of the children who attend the child care fadlitj, the children of very low income households, lower
income households, or families of moderate income shall equal a percentage that is equal to or greater than the
percentage of dweWng units that are required for very low income households, lower income households, or
families of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subcfTYision, a dty, county, ,or a city anc! county shall not be
required to provide a density bonus or concession for a child care fadlity if it finds, based upon substantial
evidence, that the community has adequate child care facilities.
(4) "Child care fadlity," as used in this section, means a child day care fadlity other than a family day care
home, including, but. not limited to, infant centers, preschools, extended day care fadllties, and schoolage child
c~re centers. .
(j) "Housing development," as used in this section, means one or more groups of projects for residential units
constructed in the planned development of a City, county, or dty and c;:ounty. For the purposes of this section,
"housing development" also ihcludes a subdivision or common interest development, as defined in Section 1351 of
the Civil Code, approved by a city, county, or dty and county anc;! ,onsists of residential units or unimproved
residentia[lots and either a project to substantially rehabilitate and convert an existing commercial building to
residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d)
of Section 65863.4, where the result of the rehabiUtation would be a net increase in available residential units.'
For the purpose of calculating a density bonus, the r~sidential units do not have to be based upon individual'
subdivision maps or p~rcels. The density bonus shall be permitted in geographic areas ofthe housing ,
development other than the areas where the units for the lower income households are located.
(k) The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general
plan. amendment, local coastal plan amendment, zoning change~ or other-discretionary approvaL This provision is
declaratory of existing law. '
(l) For the purposes of this chapter, concession or incentive means any of the' following:
, (1) A reduction in site development stand~rds or a modification of zoning code requiref1)e'nts or architectural
design requirements that exceed the minimum building standards approved by the California Building Standards
CommissioQ as provided in Part 2.5 (commendng with Section 18901) of Division 13 ofthe Health and Safety, "
Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of
vehicular parking spaces that would otherwise be required that results in identifiable, financially sufficient, and
actual cost reductions.
(2) Approval of mixed use zoning in conjunction with the housing project'if commerdal, office, industrial, or
other land uses will reduce the cost of the housing development and if the commerdal, office, industrial, or
other land uses are compatible with the housing project and the existing or planned development in the area
where the proposed housing project will be located,
.
.
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.l:'age ) ot"j
.'
(3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and
county that result in identifiable, financially sufficient, and actual cost reductions. This subdivision does not
limit or require the provision of direct financial incentives for the housing development, including the provision
of publicly owned land, by ~he city, county, or city and county, or the waiver of fees or dedication requirements.
(m) Nothing in this section shall be construed to sypersede or in any way alter or lessen the effect or
application of the California Cqastal Act (Division 20 (commencing with Section 30000) of the Public Resources
Code. .
(n) Nothing in this section shall be construed to prohibit a city, county, or city and county from granting a
density bonus greater than what is described in this section for a development that meets the requirements of
this section or from granting a proportionately lower density bonus than what is required by this section for
developments that do not meet the requirements of this section.
(0) For purposes of this section, the following definitions shall apply:
(1) "Dev~lopment standard" includes site or construction conditions that apply to a residential development
pursuant to any ordinance, general plan element, specific plan, charter amendment, or other local condition,
law, policy, resolution, or regulation.
(2) "Maximum allowable residential density" means the density allowed under the zoning ordinance, or jf a
range of density is permitted, means the maximum allowable density for the specific zoning range applicable to
the project.
(p) (1) Upon the request of the developer, no city, county, or city and county shall require a.vehicular
parking ratio, inclusive of handkapp.ed and guest parking, of a development meeting the criteria of subdivision
(b), that exceeds the following ratios:
.(A) 2ero to one bedrooms: one onsite parking space.
. (8) Two to three bedrooms: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2) If the total number of parking spaces required for a development is other than a whole number, the
number shall be rounded up to the next whole number. For purposes of this subdivision, a development may
provide "onsite parking" through tandem parking or uncovered parking, but not through onstreet parking.
(3) This subdivision shall apply to a development that meets the requirements of subdivision (b) but only at
the request of the applicant. An applicant may request additional parking incentives or concessions beyond those
provided in this section, subject to subdivision (d).
65915.5. (a) When an applicant for approval to convert apartments to a condominium proje!=1: agrees to
provide at least 33 percent of the total units of the proposed condominium project to persons and families of low
or moderate income as defined in' Section. 50093 of the Health and Safety Code, or 15 percent of the total units
of the proposed condominium project to lower income households as defined in.5ection 50079.5 ofthe Health
and Safety Code, and agrees to pay for the reasonably necessary administrative costs incurred bY a city, county,
or city and county pursuant to this section, the city, county, or city and county shall either (1) grant a density
bonus or (2) provide other incentiVes of equivalent financial value. A city, county, or city and county may place
s.uch reasonable conditions on the granting of a density bonus or other incentives of equivalent financial value as
it finds appropriate, including, but not limited to, conditions which assure continued affordability of units to
subsequent purchasers Who are persons and families of low and moderate income or lower income households.
(b) For purposes of this section, "density bonus" means an increase in units of 25 percent over the number of
apartments, to be provided within the existing structure or structures proposed for conversion.
(c) For purposes of this section, "other incentives of equivalent finandal value" shall not be construed to
require a city, county, or city and county to provide cash transfer payments or other monetary compensation but
may include the reduction or waiver of requirements which the city, county, or city and county might otherwise
apply a, conditions of conversion approval.
(d) An 'lPplicant for approval to convert apartments to a conqominium project may submit to a city, county,
or city and county a preliminary proposal pursuant to this section prior to the submittal of any formal requests
for subdivision map approvals. The city, county, or city and county shall, within 90 days of .teceipt of a written
. proposal, notify the applicant if' writing of the manner in which 'it will comply with this section. The city,
county, or city and county shall establish procedures for carrying out this section, which shall include legislative
body approval of the means of compliance with this .section.
(e) Nothing in this section shall be construed to require a city, county, or city and county to approve a
propgsal to convert apartments to condominiums.
(f) An applicant shall be ineligible for a density bonus or other incentives uncjer this section if the apartments
.
.
13-95
C~ 1ifomia Laws: Gove=ent Code> Section 65915-6591 g
Page 60f7
proposed for conversion constitute a housing development for which a density bonus or other incentives were
provided under Section -
. 65915.
65916. Where there is a direct financial contribution to a housing development pursuant to Section 65915
through participation in cost of infrastructure, write-down of land costs, or subsidizing the cost of construction,
the city, county, or city and county shall assure continued availability for low- and moderate-income units for 30
years. When appropriate, the agreement provided for in Section 65915 shall specify the mechanisms and
procedures necessary to carry out this section. .
65917. In enacting this chapter it is the intent of the Legislature that the density bonus or other incentives
offered by the city, county, or city and county pursuant to this chapter shall contribute significantly to the
economic feasibility of lower income housing in proposed housing developments. In .the absence of an agreement
by a developer in accordance with Section 65915, a locality shall not offer a density bonus or any other incentive
that would undenmine the intent of this chapter.
65917.5. (a) As used in this section, the following terms.shall have the ~ollowing meanings:
(1) "Child care facility" means a facility instal.led, operated, and maintained under this section for the
nonresidential care of children as defined uncjer applicable state licensing requirements for the facility.
(2) '"Density bonus' means a floor area ratio bonus over the otherwise maximum allowable density penmitted
under the applicable zoning ordinance and land use elements of the general plan of a city, including a charter.
city, city and county, or county of:
(A) A maximum of five square feet of floor area for each one square foot of floor area contained in the child
care facility for existing structures.
'(8) A maximum of 10 square feet of floor area for each one square foot of floor area contained in the child
care facility for new structures. For purposes of calculating the density bonus under this section, both indoor and
outdo,?r square footage requirements for the child "are facility as set forth in applicable state child care
licensing requirements shal\ be included in the floor area of the child care facility.
(3) '.Developer" means the owner or other person, including a lessee, having the right under the applicable
zoning ordinance of a city council, including a charter city council; city and county board of supervisors, or
county board of supervisors to make application for development approvals for the development or
redevelopment of a commercial or industrial project.
(4) "Roar area" means as to a commercial or industrial project, the floor area as calculated under the
applicable zoning ordinance of a city council, inclUding a charter city council, city and county board of
supervisors, or county board of supervisors and as to a child care facility, the total area contained within the
.exterior walls of the facility and all outdoor areas devoted to the use of the facility in accordance with
applicable state child care licensing requirements.
(b) A city council, including a charter city council, city and county board of supervisors, or county board of .
supervisors may establish a procedure by ordinance to grant a developer of a cO(TImercial or industrial project,
containing at least 50,000 square feet of floor area, a density bonus when that developer has set aside at least
2,000 square feet of floor area and 3,000 outdoor square feet to be used for a child care .facility. The granting of
a bonus shall not preclude a city council, including a charter city council, city and county board of supervisors,
or. county board of supervisors from imposing necessary conditions on the project or on th.e additional square
footage. Projects constructed under this section shall confonm to height, setback, lot coverage, architect~ral
review, site plan review, fees, charges, and other health, safety, and zoning requirements generally applicable
to construction in the zone in which the property is located. A consortium with more than one developer may be
pemnitted to achieve the threshold amoun~ for the available .density bonus with each developer's density bonus
equal to the percentage participation of the developer. This facility may be located on the project site or may
be located offsite as agreed upon by the.developer and local agency. If the child care facility is not located on
the site of the project, the local agency shall determine whether the location ofthe child care facility is
appropriate and whether it confonms with the intent of this section. The child care facility shall be of a size to
comply with all state licensing requirements in order to accommodate at least 40 children.
[c) The developer may operate the child care facility itself or may contract with a licensed child care
provider to operate the faCility. In all cases, the developer shall show ongoing coordination with a local child
care resource and refenral network or local governmental child care coordinator in order to qualify for the
density bonus.
[d) If the developer uses space allocated for child care facility purposes, in accordance with subdivision [b),
for any purposes other than for a child care facility, an assessment based on the sguare footage of the project
.
. .
:
13-96
Calitornia Laws: Uove=ent Code> Section 65915-65918
Page 7 00
may be levied and collected by the city coun01, including a charter"city council, dty and county board of
supervisors, or county board of supervisors. The assessment shall be consistent with the market value of the
spac~. If th~ d~veloper fails to have the space allocated for the child care facility within thr~e years, from the
date upon which the first temporary certificate of occupancy is granted, an ass~ssment based on the square
footage of th~ project may be levied and coll~ct~d by the city council, including a ch'lrter city council, dty and
county board of supervisors, qr county board of supervisors in accordance with procedures to be developed by
the legislative body of the dty coundl, including a charter city coundl, city and county board of supervisors, or
county board of supervisors. The assessment shall be consistent with the market value of the space. Any penalty""
levied against a consortium of developers sh,!ll be charged to each developer in an amount equal to the
developer's percentage square feet participation. Funds collected pursuant to this subdivision shall be deposited
by the city council, including a charter dty coundl, dty and county board of supervisors, or county board of
supervisors into a spedal account to be used for childcare services 'or child care fadlities.
(e) Once the child care fadlity has been established, prior to the dosure, change in use, or reduction in the
physical size of, the facility, the dty, dty caundl, induding a charter dty coundl, city and county board of
supervisors, or county board of supervisors shall iJe required to make a finding that the need for child care is no
longer present, or is not present to the same degree as it was at the time the fadlity was established.
(f) The requirements of Chapter 5 (commendng with Section 66000) and of the amendments made to Sections
" 53077, 54997, and 54998, by Chapter 1002 of the Statutes of 1987 shall not apply to actions taken ih accordance
with this section. .
(g) This section shall not apply to a voter-approved ordinance adopted by referendum or initiative.
65918. The provisions of this chapter shall apply to charter dties.
lmnortant Caution" ArOundTheCapitoLcom mirrors the infannation on.Califami?l,laws available on the state's public computer server.
Laws change frequently) and thus what you see 011 the computer screen should not be reLied upon as legal advice. To be ~rtain. check
in with a lawyer. AroundTheCapitol com is not liable for any rrnsinformation that users obtain from using this site.
.
.
13-97
. 12/25/2005 12: 25
.18582441145
MAJESTIC CO
PAGE 04
~\~
-.-
..... J
Cl1Y Of
CHUIA ViSTA
& 8uilding Department
P[~nning DivIsion. I Dev~lopm~nt !'roc~ss'ng
-
l' I a. n n i n g
APPLICATION APPENDIX e
Disclosure ShltBment
Purslltlnt to Council PolIG}' 101'{)1, prior to an:' aoDon lipOn matters that wUl requ\fe discretlonary actlon by the Council,
Planning C~mmfs"fan and all other official boe :es of iIle City, a statement of disclosure of certain ownershJp or financial
interests, payments, or CM'1paign conltilmtiom for.a Clly of Chura VISta electron must be .filed. The foflowlng Information
must be disclosed'
1. List Ih.. name. of al! per.on. havln9 a 1nancial interest in the property that Is the subj",ct of the application or the
contract, e.g.. owner, applloant, conlra' lor, subcontractor, material supplier.
'fY\ p. (7) rf">. lIV', p ('.... \e.V\ l_C-
(lJ6-.A ('J.r(".tv.<j~ h'''-''L>e- LP
2. If MY person' identified pumuantto (1: ebove Is a corporatlon or par1nership, list the namas ofalllndMduals WIth
a $2000 invesbnent In thei business (ee -paraUon/partn'lrsl1lp) enlily.
LVi \kJ. VV\. , .At6'~
V)"'I,~o-Wf1..\-;>
l2q,<>-_V''tn ,^ Jr. 1'2. .
3. If any person" identified pun;uant to r) above I. a non.profit organiZatron or lltist, lIslthe names (If any person
serving as dIrector af thEl non.proflt org mization or as lltistee or beneficiary or trustor of the trust.
(\/().....
4.
Please identify eVery pen;on. inciudlng any agsnts. employees, consullBnts, or independent contractlllS yoU haVe
assigned to rap_ent you before the C ty in this maller,
A~hec:o.... -A! ~ ':).O('1j_
5.
Has any persan* associated lNi\h this contract had any linanrnel dealings. ~ off1clel" of the City' of Chula
Vista as It relalas to this contract within (1]9 past 12 months. Yas_ Na .
If Yes, briefly des<;ribe the nalure of th, financial interest the offlcla'" may have.in thfs contract.
6. Heve you made a conlnbutlon jIflnare .4$~50 wflhin the past twelve (12) mr:>nths .10 a currant member of the
Chura VIsta Cfty CaunCl1.? No Y'.. Yes _Q1fy~, which Councll mem1>et? .
~b,_1 y/ ~~ ru.o! I ~.
""l"'''' rR"~"'- "..___.~
.....1 , ....
,'3'::9'g
ATTACHMENT 9
12/26/2006 12:26
18582441146
MAJESTIC CO
PAGE 05
:
Planning
& Building
. PlannIng DivisiOn I
Department
Development Pro~esslng
. 01Y OF
OiUlA VJSrA
APPLICATION APPENDIX B
DIsclosure Sta~ement - Pa~e 2
7. Have you provided more !hen $340 (or 1I1 item of eQl,lfvaient vall1e) to an official- of the Cllyof Chula \!lsls In !he
past tw~va (12) }l'IOn1tl~1 (ThIs InclUdE' baing a source of income, money to ",tire a legar debt, gift, loan, etc,.}
Y",,_ NO-L
If Yes, Which offlclal- and what waslhe rature of item provided?
Date: IYrl.Af r _V\ '3 I :;:ltn'"i";j--
Signature of C9n
PrInlor
.
type name of Con
Pe=n 1s defined as: .any lndl\lldual, firm, ClO-f!arinership, Joint ventura, association, social club, fraternal
organlmtlon, corporation, eslatEl, trust, receiver, !lyndi<;ate, any ofher county, city, munIcipality, dislrlct, or othel"
political SQbdivlsipn, -or any olhergrt!l1p or combInation acting as a unit.
OflIctal Includes, but is not limited to: Mayor, CouncR member; Planning Commissioner, Member of a boaril,
COIl'Imfsslol'l, orcorlimlttee oflhe Clly,.. "ployee, or stall'membel'$.'
..
.,'7~ Fnlrrth AvpnllF< I rh"ll:I V;"t-" I r"I~..t...~...:... I 010.,n
13-99
tl: ~ n\ .en1 :"1 n1
- - --.-.------.--.---- -----_._--_.~---~-------_.-
RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AND ESTABLISHING
CONDITIONS OF A TENTATIVE SUBDMSION MAP TO
DMDE INTEREST IN 3.48 ACRES AT 307 ORANGE
AVENUE FOR A ONE-LOT CONDOMINIUM CONTAINING
124 RESIDENTIAL UNITS, APPROVING CONCESSIONS
PURSUANT TO THE DENSITY BONUS LAW FOR THE
REDUCTION IN CERTAIN DEVELOPMENT STANDARDS
I. RECITALS
A. Project; Application for Discretionary Approval
WHEREAS, a duly verified application for a Tentative Subdivision Map was filed on
August 12, 2004, with the City of Chula Vista Planning and Building Department by
Westone Management and subsequently superceded by Premier Coastal Development and
subsequently by WGA Orange Avenue L.P. and by WGA. Orange Avenue L.P.
("Applicant"), requesting approval of a Tentative Subdivision Map to convert 124 apartment
units into individually owned condominiums ("Project"); and
B. Project Site
WHEREAS, the area of land which is the subject matter of this Resolution is
diagrammatically represented in Exhibit "A", copies of which are on file in the Office of the
City Clerk, incorporated herein by referenc.e, and commonly known as Chula Vista Tract No.
05-06, Tentative Subdivision Map, and for the purpose of general description herein consists
of3.48 acres located at 307 Orange Avenue ("Project Site"); and
C. Prior Discretionary Approval and Recommendations
WHEREAS, the development of the Project Site has received the following discretionary
approvals and recommendations: (1) Planning Commission recommendation of approval of
PCS-05-6 Tentative Subdivision Map for a 124-unit condominium conversion on
February 14, 2007; and (2) Design Review Committee approval ofDRC-05-05 Site Plan on
April 17,2006; and,
D. Planning Commission Record of Applications
WHEREAS, the Planning Commission held an advertised public hearing on the Project on
February 14,2007, and after hearing staffs presentation and public testimony voted 6-1 to
recommend that the City Council approve the Project, in accordance with the findings and
subject to the conditions listed below; and
E. Council Record of Applications
WHEREAS, the City Clerk set the time and place for the public hearing on the Project's
tentative subdivision map application; and notice of said hearing, together with its purpose,
was given by its publication in a newspaper of general circulation in the City, its mailing to
property owners within 500 feet of the exterior boundary of the project and its mailing to the
current tenants residing at 307 Orange Avenue, at least 10 days prior to the hearing; and
13-100
Resolution No. 2007-
Page 2
WHEREAS, the duly called and noticed public hearing on the Project was held before the
City Council of the City ofChula Vista on ,2007, in the Council Chambers in the
City Hall, Chula Vista Civic Center, 276 Fourth Avenue, at 6:00 p.m. to receive the
recommendations of the Planning Commission, and to hear public testimony with regard to
the same.
NOW THEREFORE BE IT RESOLVED that the City Council does hereby find, determine and
resolve as follows:
II. PLANNING COMMISSION RECORD
The proceedings and all evidence introduced before the Planning Commission at their public
hearing on the Project held on February 14,2007, and the minutes and Resolution resulting
there from, are hereby incorporated into the record of this proceeding.
II1.COMPLIANCE WITH CEQA
The Environmental Review Coordinator has reviewed the proposed project for compliance
with the California Environmental Quality Act and has determined that the proposed project
qualifies for a Class I (Existing Facilities) categorical exemption pursuant to Section 15301
of the State CEQA Guidelines. Thus no further environmental review or documentation is
necessary.
IV. INDEPENDENT JUDGMENT OF CITY COUNCIL
The City Council has exercised their independent review and judgment and concurs with the
Environmental Review Coordinator's determination that the Project qualifies for a Class 1
(Existing Facilities) categorical exemption pursuant to Section 15301 of the State CEQA
Guidelines.
V. TENTATIVE SUBDIVISION MAP FINDINGS
A. Pursuant to Government Code section 66473.5 of the Subdivision Map Act, the City
Council finds that the Tentative Subdivision Map, as conditioned herein for 307 Orange
Avenue, is in conformance with the elements of the City's General Plan, based on the
following:
1. Land Use
The site is part of the former Montgomery Specific Plan, annexed to the city in
January 1986. As part of the County/City zoning translation program, the property
was designated High Density Residential (18-27 dulac) in the General Plan, and
zoned R-3, Apartment Residential. The 124-unit apartment complex was built on a
3.48-acre parcel, which represent a development density of approximately 35 dulac.
The density is a higher than permitted in the underlying zone district and the General
Plan. However, pursuant to Chapter 19.64 of the Chula Vista Municipal Code
("CVMC"), the existing apartment complex is a legal non-conforming use and may
13-101
Resolution No. 2007-
Page 3
remain in existence indefinitely, as long as the land use remains the same and is not
altered.
Although minor modifications are proposed to comply with the condominium
conversion requirements, the Project does not represent a change in land use. Section
19.64.060C of the CYMC allows the Planning Commission to approve modifications
or enlargement of non-conforming uses when necessary and incidental to its use. The
proposed changes are necessary to change the rental units to highly desirable
individual ownership for entry-level buyers. Based on the above, the proposed
project, as conditioned, is in substantial conformance with the adopted General Plan,
Zoning Ordinance and other applicable rules and regulation.
2. Circulation
All off-site streets required to serve the subdivision currently exist. No street
improvements are required.
3. Housing
The Project is generally consistent with the land use designation prescribed within the
General Plan and provides attached condominium units for individual ownership. The
conversion of 124 apartment units to 124 condominium units creates additional
opportunities for residential ownership, including 41 units of on-site housing
affordable for moderate-income persons and families.
4. Open Space
Pursuant to Govermnent Code section 65915.5, in exchange for the Project's
providing 41 units of on-site moderate income affordable housing, the City will allow
an open space deficiency of approximately 6,887 square feet. The Project includes
existing on-site open space areas in the form of a swimming pool and recreational
rooms, landscaped areas, and a tot lot for residents' use.
5. Safety
The City Engineer, Fire, and Police Departments have reviewed the proposed
subdivision of existing apartments to condominiums for conformance with City safety
policies and have determined that the proposal meets the City Standards for seismic
safety and emergency services.
B. The configuration, orientation and topography of the site allow for a feasible setting for
passive or natural heating and cooling opportunities as required by Government Code
section 66473.1.
C. The site is physically suited for residential development and the proposal conforms to all
standards established by the City for such a project, including concessions for open space
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and parking requirements pursuant to Government Code section 65915.5 and storage
requirements pursuant to CVMC 15.56.070.
D. The conditions herein imposed on the grant of permit or other entitlement herein
contained is approximately proportional both in nature and extend to the impact created
by the proposed development.
VI. FINDINGS OF COMPLIANCE WITH CONDOMINUM CONVERSION
REQUIREMENTS PURSUANT TO CHAPTER 15.56 AND APARTMENT
RESIDENTIAL ZONE REQUIREMENTS PURSUANT TO CHAPTER 19.28 OF THE
CHULA VISTA MUNICIPAL CODE
Pursuant to Chapter 15.56, Conversion of Dwelling Units to Independent Ownership, the
City Council finds that the project meets the following:
A. Fire Protection: The City Council concurs with the Fire Marshal determination that the
project as conditioned will be in substantial conformance with current fire protection
standards.
B. Uniform Building Code: City Council concurs with the Building Division of the Planning
and Building Department's determination that the "Property Condition Assessment
Report" dated August 2003, prepared by JCDPlHuang Consulting Engineers, Inc, and the
"Supplemental Property Condition Assessment" dated August 10, 2005 (see
Attachment H), prepared by LandAmerica Commercial Services adequately address
compliance with the Building Code if applicable permits are submitted and approved and
the recommended improvements set forth in the report are constructed or put in place.
C. Storage: Section 15.56.020 requires minimum storage area for each unit - 150 cubic feet
per I-BR unit and 200 cubic feet per 2-BR unit. The 28 one-bedroom units and 40 of the
two-bedroom units are provided an excess of storage space; however, 56 of the two-
bedroom units are each deficient 17 cubic feet of storage space. A storage cupboard
within a new carport is provided for each unit, in addition to some interior storage space.
Per CVMC section 15.56.070, in considering tentative maps for condominium
development and evaluating the manner in which storage space is provided, the Planning
Commission may recommend and the City Council may approve departures from the
stated standards after review of each proposal. Departures shall be based on the merits of
the individual project when good cause can be shown. Staff has analyzed the existing
storage and proposed storage for the possibility of increasing storage capacity, and has
determined it is not feasible to increase storage space beyond that which the project is
adding. Convenient storage is proposed as cabinet space in each carport, in addition to
some storage space in the dwelling units. As a condition of the Final Map the Applicant
shall provide all storage dimensions to prove that the storage meets all minimum
dimensioning requirements.
D. Housing Code: The Project will be required to comply with housing inspection
requirements.
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E. Protective Lighting Standards: Lighting for the facility shown on the site plan shall be in
conformance with Section 17.28.030 and 17.28.040 of the Chula Vista Municipal Code.
The Project is required to provide lighting information at the time of submittal of
building permits.
F. Off-street parking: Section 19.62.050(13) requires 1.5 parking spaces for each one-
bedroom unit and two parking spaces for each two-bedroom unit, for a total parking
requirement of 234 spaces for this project. The project provides 192 parking spaces,
including 124 carports, 63 open stalls, and 5 handicapped spaces. There is a shortfall of
43 parking spaces. Drive aisles are slightly less than the 24 feet width requirement and
the ratio of compact to regular parking spaces is higher than the City standard. Pursuant
to Government Code section 65915.5, in exchange for the Project's providing 41 units of
on-site moderate-income affordable housing, the City is allowing the above stated
deficiencies in the parking area requirements.
G. Design Guidelines: Although no significant exterior structural changes are proposed to
the existing project, the Applicant proposes to upgrade both the interior and exterior of
the units, add community amenities, and refresh the landscaping. Exterior improvements
as part of the proposed condominium conversion include new paint and additional
architectural detailing on the buildings, roof replacement, installing a tot lot and play
structure, repairing and replacing all driveways and walkways where needed, adding
carports, and refreshing and supplementing the landscaping where needed. (Attachment F
is a complete list ofthe Applicant's proposed interior and exterior improvements.)
Accordingly, the Applicant has applied for and obtained Design Review approval
pursuant to CVMC sections 19.14.582 (Design Review Committee, Duties and
Responsibilities) and 19.14.420 (Site Plan and Architectural Approval - Purpose -
Prerequisite for Certain Uses).
H. Separate Service Meters: Each unit is individually metered for electric service. A
Homeowners Association will be responsible for the water and gas utility meters. The
Applicant shall provide written evidence how this will be satisfied.
1. Housing Department Compliance Survey: The Project has completed a housing
inspection, and will be required to perform all corrections listed in the Apartment
Inspection Report prior to final inspection of a Condominium unit.
J. Covenants, Conditions & Restrictions ("CC&Rs"): The Project is conditioned to provide
evidence of declarations of covenants, conditions and restrictions in conjunction with the
Final Map.
K. Open Space: Common Open Space: CVMC section 19.28.090 requires 400 square feet of
common usable open space per one- or two-bedroom unit; therefore, the project must
provide a minimum of 49,600 square feet of open space. The project provides 42,713
square feet of open space, which is a deficiency of 6,887 square feet.
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Pursuant to Government Code section 65915.5, the City is allowing the deficiency of
6,887 square feet of open space in exchange for the guarantee of 41 on-site affordable
units to persons or families of moderate income.
VII. COMPLIANCE WITH GOVERNMENT CODE SECTIONS 66451.3 AND 66452.5
Noticing Documentation
Government Code sections 66451.3 and 66452.5 require notification of a tenant's right to a
public hearing. The City of Chula Vista provided notices to tenants and surrounding property
owners of all required public hearing for the Project, and the Applicant has satisfied the
following noticing requirements at the time of submittal of the Tentative Map, which includes a
60-day "Notice ofIntent to Convert", and a "Notice to Prospective Tenants ofIntent to Convert".
BE IT FURTHER RESOLVED that the City Council does hereby approve Tentative Subdivision
Map, Chula Vista Tract No. 05-06 as represented in Exhibit "B" subject to the general and
special conditions set forth below.
VIII. GENERAL CONDITIONS OF APPROVAL
A. Project Site is Improved with Project
The Applicant, or his/her successors in interest, shall improve the Project Site with the
Project as described in the Tentative Subdivision Map, Chula Vista Tract No. 05-06,
307 Orange Avenue.
B. Design Consistency
The Applicant shall develop the condominium units in accordance with all applicable City of
Chula Vista Design Guidelines and complying with any conditions required by the Design
Review Committee associated with DRC 05-05.
IX. SPECIAL CONDITIONS OF APPROVAL
A. The conditions herein imposed on the tentative map approval or other entitlement herein
contained is approximately proportional both to nature and extent of impact created by the
proposed development. Unless otherwise specified, all conditions and code requirements
listed below and in Attachment "F" shall be fully completed by the applicant or successor-in-
interest to the City's satisfaction prior to approval of the Final Map:
GENERAL / PLANNING AND BUILDING
1. All of the terms, covenants and conditions contained herein shall be binding upon and
inure to the benefit of the heirs, successors, assigns and representatives of the Applicant
as to any or all of the property.
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2. Applicant and his/her successors in interest shall comply, remain in compliance and
implement, the terms, conditions and provisions, as are applicable to the property which
is the subject matter of this Tentative Subdivision Map and as recommended for approval
by the Planning Commission on February 14,2007, and DRC 05-05 on April 17, 2006.
3. Applicant shall coordinate with the City of Chula Vista Planning and Community
Development divisions to schedule a meeting with the current tenants to present
alternative rental housing opportunities and assistance in relocation in conjunction with
the presentation of the schedule for the phasing of the conversion of the apartments to
condominiums.
4. A week after the tentative map is approved, the Applicant shall comply with all
applicable noticing requirements set forth in Government Code section 66427.1.
Applicant shall submit evidence to the Director of Planning and Building that the
following City of Chula Vista noticing forms have been delivered to the existing and
prospective tenants per Section 66427.1 of the Subdivision Act or a schedule detailing
required future notifications:
a. 10-day notice to all existing tenants of an application of a Public Report - "Form C"
(If submitted to State Department of Real Estate prior to Final Map approval).
b. 10-day Notice to all existing tenants of Final Map approval- "Form D".
c. Notice to all prospective tenants of option to purchase/termination of tenancy -
"Form E.
d. 90-day Notice to all existing tenants of option to purchase/termination of tenancy -
"Form F",
e. ISO-day notice to all existing tenants of intent to convert/termination of tenancy -
"Form G".
5. The Applicant shall obtain a construction permit to perform any work in the City's right
of way, which may include but is not limited to:
a. Driveway approach per Chula Vista Design Standards;
b. Replacement of broken curb, gutter, and sidewalk where applicable;
c. Sewer lateral installation.
6. Submit plans and information to the satisfaction of the Fire Marshal that proposed
condominium units meet current California Fire Code, including but not limited to fire
hydrants, fire access, water supply, sprinkler systems, and fire alarms.
7. A composite lighting plan shall be submitted and approved to the satisfaction of the
Planning & Building Department and Chula Vista Police Department ("CVPD") prior to
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issuance of the first building permit. Lighting should be provided at entries, driveways
and parking lots. Please indicate the location and style of lighting on lighting plans and
elevations. Lighting shall be shielded to minimize spillover onto adjacent properties.
8. Electrical/mechanical driveway gates must be provided with a Knox key entrance
operation and Opticon system to the satisfaction of the City Fire Marshall.
9. All existing utilities serving the subject property and existing utilities located within or
adjacent to and serving the subject property shall be placed underground in accordance
with Section 15.32 of the Chula Vista Municipal Code. Furthermore, all new utilities
serving the subject property shall be placed underground prior to the issuance of building
permits.
10. Any and all agreements that the Applicant is required to enter into hereunder shall be in a
form approved by the City Attorney.
II. Applicant shall comply with the requirements of the City's approved "Recycling and
Solid Waste Management Plan" to the satisfaction of the City's Conservation
Coordinator. The plan shall demonstrate those steps the applicant will take to comply
with Municipal Code, including but not limited to Sections 8.24 and 8.25, and meet the
State mandate to reduce or divert at least 50 percent of the waste generated by all
residential, commercial and industrial developments. The Applicant shall contract with
the City's franchise hauler throughout the construction and occupancy phase of the
project. The plan shall incorporate any trash enclosure re-design required for compliance
with the City's National Pollutant Discharge Elimination System ("NPDES") permit.
12. Submit building plans and required fees per the following Building Division
requirements:
a. Building permits are required per 200 I California Building Code ("CBC"), California
Mechanical Code, California Plumbing Code, and California Handicapped
Accessibility requirements, 2004 California Electrical Code, and 2005 California
Energy Code.
b. Indicate any proposed modifications to correct code violations as noted by Code
Enforcement Division.
13. Prior to issuance of building permits, Applicant shall submit for review and approval of
the City's Landscape Planner an exterior lighting plan that includes detailed information
on the proposed fixtures, which shall be commercial grade quality. The Plan should
implement the lighting concept stated on the approved landscape concept plan. The
lighting plan shall include details showing that the proposed lighting shall be shielded to
remove any glare to adjacent properties.
14. Provide a detailed Planting and Irrigation Plan prepared by a licensed landscape architect
for review and approval with the building permit submittal, per Landscape Manual and
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CYMC requirements. All landscape work is to be completed prior to issuance of
certificates of occupancy. The detailed landscape plans shall include the following:
a. Details of the play structure in the tot lot area, which shall be commercial grade
quality.
b. Show the location, and show landscape screening from public view, for all proposed
lighting fixtures, fire hydrants, transformers, backflow valves, and other utilities on
the detailed landscape plan.
c. Identify storm water management measures, if any are proposed, on the detailed
landscape plan.
d. Planting shall not obstruct the visibility at the driveway entrance.
15. Provide a surety guarantee bond with the landscape plans for all landscape
improvements, which will include all irrigation work.
16. Plans submitted for building permits shall include the following:
a. Ground-mounted equipment including heating, air conditioning, utility boxes, and
backflow valves that will not be constructed in utility enclosures will be required to
be screened with a combination of landscaping, walls or berms.
b. A roof design plan showing that all roof equipment has been screened from adjacent
off-site residential uses and public areas with parapet walls.
c. Carport structure plans with details and specifications.
17. So as to ensure compliance with Section 17.24.040 and 17.24.050 of the Chula Vista
Municipal Code, Applicant shall show that walls and ceilings meet the current Gypsum
Association Fire Resistance Design Manual standards regarding fire and sound
attenuation. All separating floor-ceiling assemblies between separate units shall provide
impact sound insulation equal to that required to meet an impact insulation class (lIC) of
fifty (50). If said walls and ceiling do not meet said standards, then the walls and ceiling
shall be modified to conform to the Gypsum Association Fire Resistance Design Manual
standards to the satisfaction of the City Building Official and Director of Planning and
Building.
18. Prior to issuance of building permits, provide information on new hot water heating
facilities to meet the approval of the City Building official with regard to capacity, size,
and location.
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19. Submit a phasing plan indicating how portions of the site can be sold and occupied
during construction activity.
20. Anyon-site sales or leasing office shall obtain a Conditional Use Permit.
21. Submit to City staff for approval additional details on implementation of the homebuyer
assistance and tenant relocation programs, such as the time frame for meetings and
distribution of relocation assistance, tenant eligibility requirements for the programs, etc,.
and submit evidence satisfactory to the Director of Planning and Building that the
Applicant has complied with the approved homebuyer assistance program requirements
for existing residents who choose to purchase their condominium units and for renters
who choose to relocate.
DRAINAGEINPDES
22. All on-site drainage facilities shall be private except for storm drain facilities located
within the existing drainage easement granted to the County of San Diego recorded
August 22, 1985, as file no. 85-304816 of official records.
23. Paved access capable of withstanding H-20 wheel loading shall be provided to all public
storm drain manholes within the site.
24. The existing public 36-inch and 42-inch RCP storm drain pipes shall be relined based on
the City Engineer's requirement due to cracks and significant infiltration within the storm
drain pipes.
25. Applicant shall prepare and submit a Water Quality Technical Report describing
structural and non-structural Best Management Practices ("BMPs") that will be
implemented to prevent discharge of pollutants from the project site to public storm
drainage systems, to the satisfaction of the City Engineer.
26. Intercept runoff from the project site and pre-treat said runoff prior to discharge to the
City's storm water conveyance system. Identify proposed BMPs to be used to treat storm
water runoff from the site as part of the project's Water Quality Technical Report. Said
BMP facilities shall be inspected and approved by the City's Stormwater Inspector prior
to final map approval.
27. Permanent storm water BMP requirements shall be incorporated into the project design,
and shall be shown on the plans. Any construction and non-structural BMP requirements
that cannot be shown graphically must be either noted or stapled on the plans. Any
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proposed changes that impact landscaped or open space areas must be reviewed and
approved by the City's Landscape Planner.
28. Any proposed changes that impact landscaped or open space areas must be reviewed and
approved by the City's Landscape Planner.
29. Fully implement NPDES BMPs contained in the Water Quality Technical Report.
SEWER
30. The on-site sewer system shall be private. All sewer laterals shall be privately maintained
from each building and/or condominium unit to the City maintained public sewer main
within Orange Avenue.
31. The Developer/Owner shall establish a homeowners association to fund and oversee a
contract for the maintenance of the on-site private sewer system. The frequency of
maintenance of the sewer system shall be contained in the provisions of the CC&Rs. The
City Engineer and Director of Public Works shall approve the provisions of the CC&Rs
regarding the on-site private sewer system.
32. The Developer/Owner shall install a sewer manhole at the point of connection to the City
sewer main for the sewer lateral east of the public storm drain pipe that runs north to
south between the two-story stucco building and one-story stucco building/pool facility.
The sewer lateral historically has problems due to the slope of the pipe.
STREETS
33. The driveway within the development shall be private.
34. Remove and replace all driveways along the project frontage for compliance with ADA
pedestrian access route requirements. Said work shall be done under a Chula Vista
construction permit using Chula Vista Construction Standard CVCS-IA for driveways.
Driveway replacement shall be guaranteed prior to recordation of the final map. Safe
sight distances shall be maintained in and around entrances and drives.
CC&RS
35. Submit CC&Rs as approved by the City Attorney to the City Engineer, Director of
Planning and Building, and Director of Public Works, for approval. Said CC&Rs shall
include the following:
a. The creation of a Homeowner's Association ("HOA"), which shall, among other
things, be responsible for maintaining all common facilities within the Project
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including, but not limited to: walls, fences, water fountains, lighting structures, fire
sprinklers and alarm systems, paths, trails, access roads, drainage structures, water
treatment facilities, recreational amenities and structures, landscaping, trees, streets,
parking lots, driveways, and private sewage and storm drain systems.
b. A listing of all maintained private facilities.
c. Language stating that the landscaping shall be maintained by the HOA in a healthy
and thriving condition at all times.
d. Language that indemnifies and holds harmless the City from any claims, demands,
causes of action liability or loss, including claims arising from the maintenance
activities of the HOA, including but not limited to private sewer spillage.
e. The City's right but not the obligation to enforce CC&Rs.
f. An insurance provision requiring the HOA to maintain a policy of comprehensive
general liability insurance written on a per-occurrence basis in an amount not less
than one million dollars ($1,000,000) combined single limit. The policy shall be
acceptable to the City and name the City as additional insured.
g. The City must approve any revisions to provisions of the CC&Rs that may
particularly affect the City. Furthermore, the HOA shall not seek approval from the
City of said revisions without the prior consent of one-hundred percent (100%) of the
holders of first mortgages and one-hundred percent (100%) of the property owners-
unless the Director of Planning and Building waives this requirement.
h. The HOA shall not seek to be released by the City of any maintenance obligations
without the prior consent of the City and one-hundred percent (100%) of the holders
of first mortgages and one-hundred percent (100%) of the property owners - unless
the Director of Planning and Building waives this requirement.
1. Implement an education and enforcement program to prevent the discharge of
pollutants from all on-site sources into the storm water conveyance system.
J. The HOA shall maintain, in perpetuity, membership in an advance notice
service/system such as the USA Dig Alert Service and shall cause any private
facilities of the property owners or HOA to be marked out whenever work is
performed in the area.
k. The CC&Rs shall include NPDES proVISIOns for the perpetual and routine
maintenance of structural BMPs, private sewer and storm drain facilities for the
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purpose of preventing and in such a manner as to prevent the discharge of non-storm
water pollutants to the public storm water conveyance system. The CC&Rs shall
include the requirement to maintain records for the past ten years of BMP
implementation, inspections, and maintenance activities.
1. The HOA shall fund and oversee a contract for the maintenance of the on-site private
sewer system. The frequency of maintenance of the sewer system shall be contained
in the provisions of the Codes, Covenants and Restrictions, which shall be subject to
the approval of the City Engineer and the Director ofPuhlic Works.
m. Trash and Recycling program requirements shall be incorporated into the project
CC&Rs to the satisfaction of the City's Conservation Coordinator.
n. Said CC&Rs shall be consistent with Chapter 18.44 of the Subdivision Ordinance,
and shall be recorded concurrently with the final map.
o. Fire service lateral and water supply to buildings, including the on-site fire hydrants,
must be maintained and operational at all times to the satisfaction of the Fire Marshal.
36. Submit a Homeowners Association budget for review and approval by the City Engineer
for the maintenance of private streets and drives, storm drains, and sewage systems. More
specifically, said budget shall include the following provisions and maintenance
activities:
a. Streets must be sealed every seven years and overlaid every 20 years;
b. Sewers must be cleaned once a year with the contingency for emergencies;
c. Red curbs/striping must be painted once every three years;
d. The Homeowners Association shall be responsible for service utilities including
water, gas, and sewer, and the billing and payment of these utility costs;
e. Storm Water quality facilities inspected prior to and after every rain event and
cleaned as necessary (twice a year minimum); media inserts replaced as
recommended by the manufacturer; with a contingency for emergencies. The budget
shall also include a monitoring program including sampling and preparation of an
annual report, when required by the City;
f. Per the Physical Elements Report's recommended repairs within the five-year time
frame, establishment of a capital fund that will adequately cover the expected costs
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associated with repairing or replacing the Project/complex's electrical system and
plumbing system.
EASEMENTS
37. All existing easements and irrevocable offers of dedication shall be shown on the Final
Map. A title report dated within 60 days of submittal of the Final Map shall be submitted
together with backing documents for all existing public utility easements and offers of
dedication. Applicant shall submit evidence of noticing to all existing public utility
easement holders within the project boundaries as required by the Section 66436 of the
Subdivision Map Act.
AGREEMENTS
38. Applicant shall pay any unpaid balance for the 307 Orange Avenue Tentative Map
Deposit account # DQII05 and Project account CA301.
39. Applicant shall enter into an approved Affordable Housing Agreement. Applicant and
hislher successors in interest shall comply, remain in compliance and implement, the
terms, conditions and provisions, to the property with regard to the Affordable Housing
Agreement to provide 41 units of on-site affordable housing for persons or families of
moderate income.
40. Applicant shall enter into an agreement wherein the Applicant agrees to:
a. Defend, indemnify and hold harmless the City and its agents, officers, and employees,
from any claim, action or proceeding against the City, or its agents, officers or
employees to attack, set aside, void or annul any approval by the City, including
approval by its Planning Commission, City Councilor any approval by its agents,
officers, or employees with regard to this subdivision pursuant to Section 66499.37 of
the State Map Act provided the City promptly notifies the subdivider of any claim,
action or proceeding and on the further condition that the City fully cooperates in the
defense.
b. Hold the City harmless from any liability for erosion, siltation or increased flow of
drainage resulting from this project and spillage of sewage generated by the project
onto adjacent public or private streets or into off-site storm water conveyance
systems.
c. Maintain storm water quality treatment measures in accordance with an approved
maintenance and inspection plan.
d. Implement and sustain in perpetuity, a source control storm water quality
management program as outlined in the Water Quality Technical Report.
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Signature of Property Owner
Signature of Representative
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MISCELLANEOUS
40. Tie the boundary of the subdivision to the California System-Zone VI (NAD '83).
41. Submit copies of the Final Map in a digital format such as (DXF) graphic file prior to
approval of the Final Map. Provide computer aided Design (CAD) copy of the Final Map
based on accurate coordinate geometry calculations and submit the information in
accordance with the City Guidelines for Digital Submittal in duplicate prior to the
approval ofthe Final Map.
42. Submit a conformed copy of a recorded tax certificate covering the property prior to
approval of the Final Map.
43. Provide evidence to the satisfaction of the City Engineer of compliance with all tenant-
noticing requirements per Section 66427.1 of the Subdivision Map Act prior to approval
of the final map.
B. The following Conditions of Approval shall be satisfied prior to Final Inspection unless
otherwise noted:
1. For any condominium unit in a structure containing multiple condominium units, correct
California Health and Safety Code and Uniform Housing Code violations specified in
Attachment C and any other violations identified by the Housing Inspection, to the
satisfaction of the Director of Planning and Building.
2. For any condominium unit in a structure containing multiple condominium units, install
the interior upgrades and improvements specified in Attachment F to the satisfaction of
the Director of Planning and Building.
3. Prior to issuance of building permits, per the Physical Element's Report and Applicant's
designating replacement of hot water heating facilities, provide information on new hot
water heating facilities to meet the approval of the City Building official with regard to
capacity, size, and location.
4. For any condominium unit in a structure containing multiple condominium units, the
Project's exterior upgrades for that structure shall be constructed in accordance with the
approved DRC-05-05 design review permit.
5. For any condominium unit in a structure containing multiple condominium units, provide
in that structure type 2A-IOBC fire extinguishers every 75 feet of travel distance, and
smoke detectors for each unit, to the satisfaction of the Chula Vista Fire Department.
6. All lighting shall meet the protective current lighting standards of the current Uniform
Building Code.
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7. Any required modifications to separation walls and ceilings shall be done to the
satisfaction of the City's Building Official and Fire Marshal.
8. Submit evidence satisfactory to the Director of Planning and Building that the Applicant
has complied with the approved homebuyer assistance program requirements for existing
residents who choose to purchase their condominium units and for renters who choose to
relocate as reflected in the provisions referenced in the minutes of the Planning
Commission meeting of February 14, 2007. Said relocation assistance shall include the
requirement that the applicant will provide the refund of each tenant's security deposit
not less than 30 days prior to their relocation and shall provide relocation assistance of
$500 paid to tenants no less than 10 days in advance of their relocation.
9. Submit and obtain approval of a sign permit.
X. CONSEQUENCE OF FAILURE OF CONDITIONS
If any of the foregoing conditions fail to occur, or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so implemented
and maintained according to their terms, the City shall have the right to revoke or modify all
approvals herein granted, deny, or further condition issuance of all future building permits,
deny, revoke, or further condition all certificates of occupancy issued under the authority of
approvals herein granted, institute and prosecute litigation to compel their compliance with
said conditions or seek damages for their violation. The Applicant shall be notified ten (10)
days in advance prior to any of the above actions being taken by the City and shall be given
the opportunity to remedy any deficiencies identified by the City within a reasonable and
diligent time frame.
XI. INVALIDITY ; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Resolution is dependent upon
the enforceability of each and every term, provision and condition herein stated; and that in
the event that anyone or more terms, provision, or conditions are determined by a Court of
competent jurisdiction to be invalid, illegal or unenforceable, this resolution shall be deemed
to be automatically revoked and of no further force and effect ab initio.
Presented by:
Jim Sandoval
Director of Planning & Building
J:\AttorneylRESOIMAPSIPCS-05-06 (307 Orange A venue L 07-17 -07.doc
13-116
RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING THE AFFORDABLE HOUSING AGREEMENT
BETWEEN THE CITY AND WGA ORANGE, L.P., ESTABLISHING
CONDITIONS OF 41 AFFORDABLE UNITS FOR MODERATE
INCOME HOUSEHOLDS AT 307 ORANGE AVENUE AND
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT
WHEREAS, an application for a Density Bonus was filed on August 12, 2004, with the City of
Chula Vista Planning and Building Department, requesting approval for regulatory concessions for a
Tentative Subdivision Map to convert 124 apartment units into individually owned condominiums
("Project"); and
WHEREAS, the area of land which is the subject matter of this Resolution is located at 307
Orange Avenue ("Project Site"); and
WHEREAS, pursuant to Government Code Section 65915.5, the Applicant must provide 33
percent of the total number of units to persons and families of moderate income in exchange for
concessions from certain multi-family development standards; and
WHEREAS, based on 33 percent of 124 units, the Applicant has an obligation to provide 41
units affordable to moderate-income households; and.
WHEREAS, compliance with the Affordable Housing Agreement is necessary to satisfy the
conditions of approval for moderate income housing obligations of the Project under the State Density
Bonus Law; and
WHEREAS, this Affordable Housing Agreement implements affordable housing requirements
previously analyzed in the environmental review, therefore, no additional action is required under
CEQA.
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Chula Vista that
this City Council does hereby approve the Affordable Housing Agreement related to the
implementation of the affordable housing condition at 307 Orange Avenue in substantially the form
presented to the City, subject to such revisions as may be made by the City Manager or his designee
subject to the review and approval of the City Attorney.
BE IT FURTHER RESOLVED, that the City Manager is hereby authorized to execute the
Affordable Housing Agreement on behalf of the City. A copy of the Affordable Housing Agreement
when executed by the City shall be placed on file in the office of the City Clerk.
BE IT FURTHER RESOLVED, that the City Manager (or designee) is hereby authorized, on
behalf of the City, to make revisions to the Affordable Housing Agreement which do not materially or
substantially increase the City's obligations thereunder or materially or substantially change the uses or
development permitted on the Site, to sign all documents, to make all approvals and take all actions
necessary or appropriate to carry out and implement the Affordable Housing Agreement and to
13-117
Resolution No. 2007-
Page 2
administer the City's obligations, responsibilities and duties to be performed under the Affordable
Housing Agreement and related documents. Any such revisions or modifications to the Affordable
Housing Agreement are subject to the review and approval of the City Attorney.
Presented by
Approved as to form by
Ann Hix
Acting Community Development Director
J:\AtlomeyIRESO\AGREEMENTS\WGA Orange, L.P._07-17-07.doc
132118
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
Ann Moore
City Attorney
Dated::;Z: - II - 0 f
Affordable Housing Regulatory Agreement
Between
City of Chula Vista
and
WGA Orange Avenue
13-119
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Chula Vista
276 Fourth Avenue
Chula Vista CA 91910
Attn: City Clerk
No fee for recording pursuant to
Government Code Section 27383
(Space above for Recorders Use)
AFFORDABLE HOUSING REGULATORY AGREEMENT
THIS AFFORDABLE HOUSING REGULATORY AGREEMENT (this "Agreement") is entered
into as of ,2007, between the CITY OF CHULA VISTA, a municipal corporation ("City"),
and WGA ORANGE AVENUE, a California limited partnership ("Developer") and/or its successors
or assignees.
1.. Recitals
1.1. Authority. The City is a municipal corporation, organized and existing under the laws of the
State of California. City is authorized to enter into binding agreements for the purpose of
protecting public health, safety, and welfare.
1.2. Developer. Developer has a property interest in property in the City of Chula Vista, in the
County of San Diego, California, commonly known as 307 Orange Avenue, which is legally
described in Exhibit "A", which is hereby incorporated herein (the "Real Property"). The Real
Property will be a condominium project established pursuant to Section 1350, et seq. of the
California Civil Code.
1.3. Proiect. Developer wishes to convert the existing 124-unit apartment complex at 307 Orange
Avenue to a condominium project (the "Project"). Owner proposes that 83 of those units will
be sold at prevailing market rates (the "Market Units") and that 41 units will be sold at
affordable prices to eligible moderate income households (the "Restricted Units") as further
described in Section 1.5 below.
1.4 Tentative Map. The City Council of the City of Chula Vista, through the adoption of
Resolution No. , has approved a tentative map in accordance with the State
Subdivision Map Act and the City's Municipal Code, Chapter 15.56, authorizing the
conversion of the Project into a condominium project. The Owner has requested a Density
Bonus pursuant to 65915.5. Pursuant to 65915.5 the Owner is entitled to additional units or
incentives of equivalent financial value. As requested by the Owner and in accordance with
California Government Code 965915.5, the City has granted Owner a reduction in certain
requirements of the following conditions of conversion as incentives of equivalent financial
value:
Affordable Regulatory Housing Agreement
1
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. The requirement to comply with the off-street parking standards for multiple family
dwellings and dwelling groups which exist at the time of the establishment of the Project
as a condominium project set forth in Municipal Code section 15.56.020(F).
. The requirement to comply with the City's current open space requirements set forth in
Municipal Code section 19.28.090
. The requirement to provide storage space set forth in Municipal Code section
15.56.020(C).
1.5 Density Bonus Conditions. Developer and the City now desire to enter into this Agreement
to satisfy the conditions of approval requiring Developer to provide at least 33 percent of the
total units as moderate income for saie housing. as defined in ~50093 of the Health and
Safety Code.
20
One Bedroom / One Bath
21
Two Bedroom /1 Bath
1.6 Bindina On Successive Owners. Pursuant to California Government Code Section 27281.5,
the parties intend that this Agreement constitute an encumbrance against the Real Property
which, during the Term of this Agreement, is binding on the owners and successive owners
of the Real Property for the benefit of the City.
NOW THEREFORE, THE CITY AND DEVELOPER HEREBY AGREE AS FOLLOWS:
2. - Definitions
The following definitions apply for purposes of this Agreement:
2.1 "Area Median Income" means the latest median income from time to time determined by
the United States Department of Housing and Urban Development (pursuant to Section 8 of
the United States Housing Act of 1937) for the San Diego Standard Metropolitan Statistical
Area, and as established by regulation of the State of California pursuant to Health and
Safety Code Section 50093.
2.2 "Buyer-Elected Options and Upgrades" means options and upgrades included in a Unit
that are not included within the plans and specifications for standard production Units and
that are paid for in cash by the buyer.
2.3 "Buyer-Qualified Interest Rate" means the interest rate a buyer qualifies for and obtains
under a loan, the proceeds of which are used to purchase the Moderate Income Unit.
2.4 "City Notice of Approval" means the letter from the City identifying the applicant as an
eligible affordable buyer.
Affordable Regulatory Housing Agreement
2
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2.5 "Gross Income" shall mean the anticipated income of a person or family for the 12-month
period following the date of determination of income as defined in Title 25 of the California
Code of Regulations Section 6914.
2.6 "Market Rate Price(s)" shall be as described in Section 3.2 below.
2.7 "Moderate Income Affordable Sales Price" shall be determined pursuant to Section 3.3.3
below.
2.8 "Moderate Income Buyers" means individuals or families with a gross income which does
not exceed one hundred twenty percent (120 %) of the current Area Median Income, as
adjusted for household size as set forth in ~50093 of the Health and Safety Code.
2.9 "Moderate Income Unit" means any of the forty-one (41) Units which shall be sold by
Developer to and occupied by a Moderate Income Buyer.
2.10 "Monthly Housing Cost" means the sum of monthly payments for all of the following with
respect to a Moderate Income Unit:
2.10.1 Principal and interest, amortized over thirty (30) years, at the then current fixed
interest rate, payable under the First Trust Deed Loan (as defined below), which is
then available to acquire an Moderate Income Unit;
2.10.2 Any special tax district assessments, Mello-Roos special taxes, prorated monthly,
which apply to the Moderate Income Unit;
2.10.3 The monthly homeowners association regular assessments which apply to the
Moderate Income Unit; and
2.10.4 A reasonable allowance for real estate taxes and insurance not included in the
above costs, prorated monthly.
2.10.5 A modest Utility allowance as determined by the Housing Authority for the unit size.
Utility allowance does not include telephone or cable service.
2.11 Mortgage Amount" shall be as described in Sections 3.3.1,3.3.2, whichever is applicable.
2.12 "Silent Second Note" shall refer to the promissory note made by a Moderate Income Buyer
in favor of the City which is equal to the difference between the Market Rate Price and the
Moderate Income Affordable Price of a Moderate Income Unit. The form of the Silent
Second Note shall be as set forth on Exhibit "B" attached hereto.
2.13 "Silent Second Trust Deed" shall refer to a deed of trust which secures a Silent Second
Note. The form of the Silent Second Trust Deed shall be as set forth on Exhibit "C"
attached hereto.
2.14 "Term" shall be described in 4 below.
3. - Marketina of Moderate Income Units
3.1 Moderate Income Units. Of the One-Hundred Twenty-Four (124) Units in the Project,
Developer shall sell Forty-One (41) Units only to Moderate Income Buyers) The Forty-One
Affordable Regulatory Housing Agreement
3
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(41) Moderate Income Units shall consist of20 One (1) and 21 Two (2) bedroom Units. The
sales price of each such Moderate Income Unit shall be the Market Rate Price, with the
Silent Second Note being in original principal amount equal to the difference between the
Market Rate Price and the Maximum Sales Price for a Moderate Income Unit.
The Silent Second Note shall be secured by the Silent Second Trust Deed encumbering the
Moderate Income Unit which is sold to a Moderate Income Buyer. The Silent Second Trust
Deed shall be subordinate in priority to the institutional trust deed loan ("First Trust Deed
Loan") which the Moderate Income Buyer obtains to purchase the property.
3.2 Market Rate Price. The Market Rate Prices for the Moderate Income Units shall initially be
the amounts set forth in the attached Schedule "1". Developer may request that the City
recalculate the Market Rate Prices twice in any given calendar year pursuant to the
procedures set forth in this Section. Developer shall seek the City's written approval, which
approval shall not be unreasonably withheld, prior to modifying the Market Rate Prices.
Developer may submit to the City Developer's proposed revisions, if any, to the Market Rate
Prices for the Moderate Income Units. Within ten (10) business days after such submission,
the City shall approve or disapprove such proposed revisions. If the City disapproves and
objects to Developer's proposed revisions within such ten (10)-day period, Developer may
re-submit further revisions to the Market Rate Prices to address the City's grounds for
objection, and the City shall thereafter have ten (10) business days to approve or disapprove
Developer's proposed revisions, If, however, the City fails to approve or disapprove
Developer's proposed revisions within the initial ten (10)-business day periOd (or the
subsequent ten (1 OJ-business day period iri case of re-submission), Developer's proposed
revisions shall be deemed approved.
3.3 Calculation of Maximum Moderate Income Affordable Sales Price.
3.3.1
The Maximum Sales Price of a Restricted Unit (the "Maximum Sales Price") means the
maximum sales price applicable to the unit size in question, as set forth in regulations
promulgated pursuant to California Health and Safety Code section 50025.5(e) to
determine the sales price that will make housing available to moderate-income households
at an "affordable housing cost," as defined in California Health and Safety Code section
50025.5(b)(4).
One (1) Bedroom
Two (2) Bedroom
$197,956
$227,226
Developer may request that the City recalculate the Maximum Sales Price twice in any given
calendar year. Pursuant to the procedures set forth in this Section, developer shall seek the
City's written approval, which approval shall not be unreasonably withheld, prior to modifying
the Maximum Moderate Income Affordable Sales Prices.
Developer may submit to the City Developer's proposed revisions, if any, to the Maximum
Moderate Income Affordable Sales Prices for the Moderate Income Units. Within ten (10)
Affordable Regulatory Housing Agreement
4
13-123
business days after such submission, the City shall approve or disapprove such proposed
revisions. If the City disapproves and objects to Developer's proposed revisions within such
ten (1 OJ-day period, Developer may re-submit further revisions to the Maximum Moderate
Income Affordable Sales Prices to address the City's grounds for objection, and the City
shall thereafter have ten (10) business days to approve or disapprove Developer's proposed
revisions. If, however, the City fails to approve or disapprove Developer's proposed revisions
within the initial ten (10)-business day period (or the subsequent ten (10)-business day
period in case of re-submission), Developer's proposed revisions shall be deemed
approved.
3.4 Unit Sizes and Appropriate Household Sizes. The following are the household sizes
appropriate to a Moderate Income Unit, for calculation of Mortgage Amount based State law:
Calculation of the Moderate Income Affordable Sales Price shall be based upon the
assumed household size specified for the Moderate Income Unit size as set forth in the
foregoing table notwithstanding the actual size of the household that purchases the
Moderate Income Unit.
3.5 Proof of Qualification. Developer will obtain from each person(s) to whom Developer sells a
Moderate Income Unit a "Supplemental Buyer Application" (the "Application") in the fonm of
Exhibit "D" attached hereto (or such other form as the City may from time to time adopt and
of which the City will notify Developer in writing). Developer will be entitled to rely on the
Application and the supporting documents thereto in determining the eligibility of such
person(s) to buy such Moderate Income Unit. Developer will retain the Application and
supporting documents for a period of at least seven (7) years after the buyer thereof closes
escrow for the purchase of the Moderate Income Unit.
3.6 Records. Audits. Developer will submit to the City monthly copies of all Applications,
available settlement or closing statements with respect to each Moderate Income Unit that
has closed escrow, and documents submitted containing information with respect to each
Moderate Income Unit including (I) the monthly amortized Mortgage Amount, (ii) the number
of occupants for which the Moderate Income Unit is sold, (Iii) the income of such
occupant(s), (iv) the Market Rate Price of the Moderate Income Unit and (v) the Moderate
Income Affordable Sales Price of the Moderate Income Unit or the Moderate Income
Affordable Sales Price of the Moderate Income Unit, whichever is applicable. Such
submission shall be in the form of Exhibit "D" attached hereto (or such otherfonm as the City
may from time to time adopt and of which the City notifies Developer in writing). If the City
reasonably believes that violations of the sales price, occupancy and/or income
requirements of this Agreement have occurred, and that an audit is necessary to verify
submitted Applications and documentation, it will so notify Developer in writing thereof.
Within ten (10) days after delivery of said notice, Developer will deliver to the City the names
of three certified public accountants doing business in (he metropolitan San Diego area.
The City will promptly deliver to Developer the former's approval of one or more of said
names. The audit will be completed by an approved certified public accountant, at
Developer's cost, within 60 days after the delivery to Developer of the City's said approval.
Affordable Regulatory Housing Agreement
5
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The certified public accountant will promptly deliver a copy of the written audit to the City.
Developer shall regularly evaluate its compliance with the sales price, occupancy and
income requirements of this Agreement and exercise good faith efforts to avoid any
violations thereof.
3.7 City Approval of Marketinq Plan: Selection of Moderate Income Buvers. The following
requirements shall apply with respect to Developer's marketing of the Moderate Income
Units
3.7.1 Marketinq Plan. Developer shall prepare a marketing plan in compliance with
Federal and State Fair Housing Laws. Such marketing plan shall include a plan for
publicizing the availability of the Moderate Income Units within the City, such as
notices in any local newspapers. The marketing plan shall require Developer to
obtain from the City the names of Moderate income households who have been
displaced by the City Redevelopment Agency redevelopment projects, and to notify
persons on such list of the availability of Moderate Income Units in the Project prior
to undertaking other forms of marketing. The marketing pian shall provide that the
persons on such list of displaced persons be given not fewer than fifteen (15) days
after receipt of such notice to respond by completing application fonms for purchase
of Moderate Income Units, as applicable.
3.7.2 Income Requirements. All buyers of each Moderate Income Unit shall meet the
income requirements set forth in this Agreement. Selection of Moderate Income
Buyers shall be made based upon the Buyer Selection Criteria as established within
the following levels of priority.
A point system has been established so that applicants with a higher number of
points will receive preference for Moderate Income Units.
5 Points Households which are displaced from their primary residence
as a result of any of the following: (I) expiration of affordable
housing covenants applicable to such residence; (i1) an
action of the City or the City Redevelopment Agency; (Iii)
closure of a mobile home or trailer park community in which
the household's residence was located; or (iv) a
condominium conversion involving the household's
residence. One member in the household must have resided
in such housing as the primary place of residence for at least
one year prior to such action or event.
4 Points Households with at least one member who has worked within
the City, as that person's principal place of full-time
employment, for at least one year prior to the date of
application for such housing.
3 Points Households with at least one member who is a Public Safety
employee (fire and police) or Credentialed Teacher. The
individual must be working in such position as his/her full-
time profession at the time of application.
2 Points Households currently residing within the boundaries of the
City of Chula Vista at the time of aoolication.
Affordable Regulatory Housing Agreement
6
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City of Chula Vista, at the time of application.
1 Point All other applicants who do not meet any of the above
criteria.
In the situation where there are applicants with an equal number of points but not
enough Moderate Income Units are available, a lottery will be held at a place and
time to be announced by the City and Developer.
3.7. Citv's Evaluation of Qualification of Moderate Income Buvers: Authoritv of Citv To Receive
Loan Applications. Developer shall reasonably assist the City in obtaining from each
Moderate Income Buyer (or prospective Moderate Income Buyer) a form signed by the
Moderate Income Buyer authorizing the release to the City of the prospective buyer's 1003
(Mortgage Loan Application), Good Faith Estimate and Underwriting Transmittal Summary
(1008) or similar form from the applicable lender. Developer shall request that each such
lender forward to the City the loan documentation for any loan to a Moderate Income Buyer.
The City will evaluate these forms and communicate its evaluation to Developer. After the
City's review and verification that a prospective buyer is qualified as a Moderate Income or
Moderate Income Buyer, the City will send a City Notice of Approval to the lender and
Developer confirming the prospective buyer's eligibility.
3.8. Qualification Criteria. The City will utilize the following criteria in evaluating an application by
a Moderate Income Buyer (or prospective Moderate Income Buyer):
3.8.1. Neither the Affordable Buyer nor such Affordable Buyer's spouse has owned a home
during the three (3) - year period immediately preceding the purchase of the
Moderate Income Unit.
3.8.2.
3.8.3. The Affordable Buyer's liquid assets after down payment, Affordable Buyer's closing
costs and Affordable Buyer's cash payments for Buyer-Elected Options and
Upgrades must not exceed $25,000.00.
3.8.4. Non-occupant co-borrowers are not allowed.
3.8.5. The maximum Monthly Housing Costs must not exceed 36% of monthly income for
FHA insured loans and 40% of monthly income for all other loans.
3.8.6. The maximum debt-to-income ratios must not exceed 41% for FHA insured loans
and 45% for all other loans.
3.8.7. No refinancing for cash-out or debt consolidation purposes will be allowed (but rate
and term refinancing is permitted).
3.9. Occupancy Criteria. Beginning with the initial sale of a Moderate Income Unit and
continuing with each sale thereafter, the Purchaser of a Moderate Income Unit will meet the
following criteria ("Occupancy Criteria"): The Purchaser will occupy Moderate Income Unit
as his/her only residence. The Purchaser will be considered as occupying the Moderate
Income Unit as the Purchaser's only place of residence if the Purchaser is living in the
Affordable Regulatory Housing Agreement
7
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Moderate Income Unit for at least 1 O-months out of each calendar year. Notwithstanding the
foregoing:
3.9.1 If the Purchaser is deceased, then the Purchaser's heir may take title to the
Moderate Income Unit, provided such heir qualifies as an Eligible Moderate Income
Unit, all such heirs must qualify as an Eligible Household. If the Purchaser's heir(s)
do not qualify as an Eligible Household, the heir(s) must sell the Restricted Unit to an
Eligible Household for a total consideration that does not exceed the then Maximum
Sales Price.
3.9.2 If the Purchaser's failure to occupy the Moderate Income Unit is the result of a
medical necessity, then the Purchaser will be given a grace period. At the end of
such grace period, the Purchaser will be required to either occupy the Moderate
Income Unit or to sell such Moderate Income Unit to an Eligible Household for a total
consideration that does not exceed the Maximum Sales Price.
3.10 Information Packet. Developer shall provide an informational packet to each Moderate
Income Buyer and Moderate Income Buyer, summarizing the requirements of the City's
affordable for sale housing program provided for in this Agreement. The City shall, at
Developer's request, reasonably assist Developer with the preparation or review of the
informational packet.
4. Term
4.1. Term of Aareement. The agreement shall commence on the date of this Agreement. The
Term ends after all obligations under this agreement have been met and verified by the City.
Upon verification from the City that all obligations have been satisfied, the City shall record
a termination of this Agreement in the Office of the County Recorder of San Diego County,
California.
4.2. Recorded Affordabilitv Clause. At the time of the initial sale to an eligible household of a
Moderate Income Unit, each Moderate Income Unit shall be subject to the afford ability
Restrictions for a period of thirty (30) years, as described in their Deed of Trust. Each
Purchaser of a Moderate Income Unit must sign a Deed of Trust which contains covenants
about afford ability, resale and payment to the City.
4.3. Transfer of Restricted Units. Neither Owner nor the Purchaser(s) of a Restricted Unit can
sell or transfer any Restricted Unit without the approval of the City, and the City's verification
that the requirements of this Agreement (or, if the Owner has sold such Restricted Unit to
Purchaser, the Individual Declaration applicable to such Restricted Unit) have been satisfied,
including without limitation the City's verification that a purchaser or transferee is an Eligible
Household at the time of purchase and that the Actuai Sales Price does not exceed the
Maximum Sales Price.
5. - Subordination
Upon request, the City shall subordinate this Agreement to any first deed of trust which Developer
obtains for construction of the Project and the First Trust Deed Loans obtained by buyers to
purchase their Moderate Income Units. However, any subordination agreement entered into by the
City shall contain written commitments which the City finds are reasonably designed to protect the
Affordable Regulatory Housing Agreement
8
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City's interests in the event of default, such as any of the following: (a) a right of the City to cure a
default on the loan prior to foreclosure, (b) a right of the City to negotiate with the lender after notice
of default from the lender and prior to foreclosure, (c) an agreementthat if priorto foreclosure of the
loan, the City takes title to the property and cures the default on the loan, the lender will not exercise
any right it may have to accelerate the loan by reason of the transfer of title to the City, and (d) a
right of the City to acquire through foreclosure under the Silent Second Trust Deed the Moderate
Income Unit from the buyer at any time after a material default on the loan.
6. . Additional Provisions ReQardinQ The Real ProDertv
6.1. Condition of the Real Prooertv. The following provisions shall apply only during the period of
time that Developer is developing and marketing the Project.
6.1.1. Developer shall prevent the release, by Developer or its contractors, into the environment of
any Hazardous Materials which may be located in, on or under the Real Property. Such
precautions shall include compliance with all Governmental Requirements with respect to
Hazardous Materials. In addition, Developer shall install and utilize such equipment and
implement and adhere to such procedures as are consistent with commercially reasonable
standards as respects the disclosure, storage, use, removal and disposal of Hazardous
Materials.
6.1.2. Developer shall indemnify, defend and hold the City, its elected officials, officers, agents,
employees, representatives, and successors harmless from and against any claim, action,
suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or
expense (including, without limitation, reasonable attorneys' fees), resulting from, arising out
of, or based upon Developer's or its contractor's (i) release, use, generation, discharge,
storage or disposal of any Hazardous Materials on, under, in or about, or the transportation
of any such Hazardous Materials to or from, the Real Property, no matter when such claim,
action, suit or proceeding is first asserted or begun and no matter how the Hazardous
Materials came to be released, used, generated, discharged, stored or disposed of on,
under, in or about, to or from the Real Property, or by whom or how they are discovered, or
(ii) violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit,
judgment or license relating to the use, generation, release, discharge, storage, disposal or
transportation of Hazardous Materials on, under, in or about, to or from, the Real Property.
This indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel
indemnity after closing, cost or expense arising from or out of any claim, action, suit or
proceeding, including injunctive, mandamus, equity or action at law, for personal injury
(including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to
the natural resource or the environment, nuisance, contamination, leak, spill, release or
other adverse effect on the environment. Developer obligations under this indemnity shall
survive the termination of this Agreement.
6.1.3. For purposes of this Agreement, "Hazardous Materials" means any substance,
material, or waste which is or becomes regulated by any local governmental
authority, San Diego County, the State of California, regional govemmental authority,
or the United States Government, including, but not limited to, any material or
substance which is (i) defined as a "hazardous waste," "extremely hazardous waste,"
or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed
pursuant to Section 25130 of the California Health and Safety Code, Division 20,
Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code, Division
Affordable Regulatory Housing Agreement
9
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20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (Hi)
defined as a "hazardous material," "hazardous substance," or "hazardous waste"
under Section 25501 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a
"hazardous substance" under Section 25281 of the California Health and Safety
Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances),
(v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl
tertiary butyl ether, (Ix) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Code of Regulations,
Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to
Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (xi) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903) or (xii)
defined as "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601,
etseq.
6.1.4. For purposes of this Agreement, "Governmental Requirements" means all laws,
ordinances, statutes, codes, rules, regulations, orders and decrees of the United
States, the State, the County of San Diego, the City, or any other political subdivision
in which the Real Property is located, and of any other political subdivision or
instrumentality exercising jurisdiction over the City, Developer or the Real Property.
6.2 Taxes. Assessments. Encumbrances. and Liens. Developer shall pay prior to delinquency
all real estate taxes and assessments properly assessed and levied on portions of the Real
Property which are owned by Developer.
Nothing in this Agreement shall be deemed to prohibit Developer from contesting the validity
or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available
to Developer in respect thereto.
6.3 Hold Harmless. Developer agrees to indemnify, protect, defend and hold harmless the City,
its elected officials, officers, agents, employees, representatives and successors, from and
against any and all claims, damages, actions, costs, demands, expenses or liability,
including without limitation, reasonable attorneys' fees and court costs, which may arise from
the direct or indirect actions or inactions of Developer or those of its contractors,
subcontractors, agents, employees or other persons acting on Developers' behalf which
relate to the approval of the project, the approval of this agreement and associated
documents, and the Developer's construction and marketing activities of the Real Property
or Project. This hold harmless agreement applies, without limitation, to all damages and
claims for damages suffered or alleged to have been suffered by reasons of the operations
referred to in this section regardiess of whether or not the City prepared, supplied or
approved plans or specifications, or both, for the Real Property or Project. This indemnity by
Developer, and all other indemnities set forth herein shall survive any foreclosure of the Real
Property by the City pursuant to the terms of the Silent Second Trust Deed and the Term or
earlier termination of this Agreement.
6.4 Obliqation to Refrain from Discrimination. There shall be no discrimination against, or
segregation of, any persons, or group of persons, on account of race, color, creed, religion,
sex, marital status, ancestry, or national origin in the enjoyment of the Real Property.
Developer shall further comply with all the requirements of the Americans with Disabilities
Act and the Americans with Disabilities Act Accessibiiity Guidelines (collectively, "ADA").
Affordable Regulatory Housing Agreement
10
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6.5 Form of Nondiscrimination and Nonseoreoation Clauses. Developer shall refrain from
restricting the sale of any portion of the Real Property, or contracts relating to the Real
Property, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national
origin of any person and shall comply with all the requirements for the ADA. All such deeds,
leases or contracts, shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
6.5.1 In deeds: "The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, ancestry, or national origin in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee
himself, or any persons claiming under or through him, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or
vendees in the land herein conveyed and further covenants that all such individuals
and entities shall comply with all requirements ofthe Americans with Disabilities Act
of 1990, as the same may be amended from time to time (42 U.S.C. Section 12101,
et seq.), and the Americans with Disabilities Accessibility Guidelines. The foregoing
covenants shall run with the land."
6.5.2 In leases: "The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through him, and this lease is made and accepted upon and subject to the following
conditions: 'That there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, ancestry, or national origin in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee
himself, or any person claiming under or through him, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the land herein lease and the lease shall be carried out in compliance
with all requirements of the Americans with Disabilities Act of 1990, as the same may
be amended from time to time (42 U.S.C. Section 12101, et seq.), and the
Americans with Disabilities Accessibility Guidelines.'"
6.5.3 In contracts: "There shall be no discrimination against or segregation of any persons
or group of persons on account of race, color, creed, religion, sex, marital status,
ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or
enjoyment of land, nor shall the transferee himself, or any person claiming under or
through him, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sublessees, or vendees of land and all such activities
shall be conducted in compliance with all the requirements of the Americans with
Disabilities Act of 1990, as the same may be amended from time to time (42 U.S.C.
Section 12101, et seq.), and the Americans with Disabilities Accessibility
Guidelines."
7. - Escrow Documentation
The City shall provide Developer with any revision it reasonably deems appropriate to the form Silent
Affordable Regulatory Housing Agreement
11
13-130
Second Note or the Silent Second Trust Deed for the use in escrow for the sale of each Moderate
Income Unit. The Silent Second Trust Deed shall be recorded with the County Recorder of San
Diego County at close of escrow for the sale by Developer of each Moderate Income Unit, and each
Silent Second Trust Deed shall legally describe the particular Moderate Income Unit it covers, using
the same legal description as is used in Developer's deed to its buyer. Each Silent Second Trust
Deed shall be consistent with and implement the terms of this Agreement.
8. - Breach
8.1. Breach bv City. If the City breaches any of its covenants contained in this Agreement,
Developer will have available to it all legal and equitable remedies afforded by the laws of
the State of California.
8.2. Breach bv Developer of Sale Price Limit Reauirements. If, with respect to any Moderate
Income Unit, Developer breaches this Agreement by charging higher sales prices than that
herein permitted, Developer will, immediately upon the City's demand, (i) reduce the sales
price to that permitted herein and (ii) refund to any buyers who theretofore paid such higher
sales price the amount of the excess, together with interest hereon at the rate of ten percent
(10%) per annum or the maximum legal rate, whichever is less, computed from the date(s)
of payment of the excess by said buyers to the date of said refund. The provisions of this
Section constitute a third-party beneficiary contract in favor of such buyers. Further, the City
is hereby granted the power (but not the duty) to act as attorney-in-fact of such buyers in
enforcing this section.
8.3. Breach bv Developer of Sales Reauirements. If, with respect to any Moderate Income Unit,
Developer breaches this Agreement by selling to buyers who are not qualified by the City
pursuant to Section 3.8, Developer will, immediately upon the City's written demand, and at
Developer's sole cost, use its reasonable best and lawful efforts to terminate such sale or
otherwise substitute an Unrestricted Unit in such sale.
8.4. Breach bv Developer of Other Reauirements. If Developer breaches any of its covenants
contained in this Agreement, the City shall have available to it all legal and equitable
remedies afforded by the laws of the State of California.
8.5. Remedies Not Exclusive. The remedies set forth in this section are not exclusive, but are in
addition to all legal or equitable remedies otherwise available to the City and Developer.
9. - Conflicts of Law
9.1 Confiict of City and State or Federal Laws. In the event that state or federal laws or
regulations enacted after this Agreement has been entered into prevent or preclude
compliance with one or more provisions of this Agreement the parties will:
9.1.1.1 Notice and Copies: Provide the other party with written notice of such state or
federal restriction, provide a copy of such regulation or policy and statement of
conflict with the provisions of this Agreement.
9.1.1.2 Modification Conferences: The parties will, within 30 days, meet and confer in good
faith in a reasonable attempt to modify this Agreement to comply with such federal or
state law or regulation.
Affordable Regulatory Housing Agreement
12
13-131
9.1.1.3 City Council Hearinqs. Thereafter, regardless of whether the parties reach an
agreement on the effect of such federal or state law or regulation upon this
Agreement, the matter will be scheduled for consideration by the goveming board of
the City Council. The City Council, at such meeting, will determine the exact
modification or suspension which shall be necessitated by such federal or state law
or regulation. Developer, at the meeting, will have the right to offer oral and written
testimony. Any modification or suspension will be taken by the affirmative vote of not
less than a majority of the authorized voting members of the governing board of the
City Council.
9.1.1.4 Coooeration in Securinq Permits. The City shall cooperate with Developer in the
securing of any permits which may be required as a result of such modifications or
suspensions.
10. - General Provisions
10.1 Severabilitv. The parties hereto agree that the provisions are severable. If any provision of
this Agreement is held invalid, the remainder of this Agreement will be effective and will
remain in full force and effect unless amended or modified by mutual written consent of the
parties.
10.2 Entire Aqreement. Waivers and Amendments. This Agreement, together with any other
written document referred to or contemplated herein, embody the entire Agreement and
understanding between the parties relating to the subject matter hereof. Neither this
Agreement nor any provision hereof may be amended, modified, waived, cancelled or
discharged except by an instrument in writing executed by the both parties
10.3 Capacities of Parties. Each signatory and party hereto hereby warrants and represents to
the other party that it has legal authority and capacity and direction from its principal to enter
into this Agreement, and that all resolutions or other actions have been taken so as to
enable it to enter into this Agreement.
10.4 Governinq LawNenue. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. Any action arising under or relating to this
Agreement shall be brought only in the Federal or State courts located in San Diego County,
State of California, and if applicable, the City of Chula Vista, or as close thereto as possible.
Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista.
10.5 Assiqnment. Subject to the City's prior review and approval, which review and approval shall
not be unreasonably withheld, the rights and obligations of Developer under this Agreement
may be transferred or assigned and Developer may be released from such obligations upon
such transfer or assignment, provided such transfer or assignment is made as a part of the
conveyance of the fee of all or a portion of the Real Property. Any such transfer or
assignment will be subject to the provisions of this Agreement. During the term of this
Agreement, any such assignee or transferee will observe and perform all of the duties and
obligations of Developer contained in this Agreement as such duties and obligations pertain
to the portion of the Real Property so conveyed.
Except as permitted below, transfers of any interest in the Developer entity shall
constitute a prohibited transfer hereunder.
Affordable Regulatory Housing Agreement
13
13-132
(i) Notwithstanding any other provisions of this Agreement to the contrary,
City approval of an assignment of this Agreement or any interest herein shall not
be required in connection with any of the following:
(a) Any transfers among the principals of the Developer entities so
long as the existing principals thereof shall be and remain in management control
of the Developer entity with at least a fifty-one percent (51 %) ownership or
beneficial interest in the DEVELOPER entity.
(b) The granting of temporary or permanent easements or permits to
governmental or quasi-governmental agencies to facilitate the development of the
Property, or any component thereof.
(i) City consent will be granted if:
(a) the proposed assignee/transferee expressly assumes, in writing,
Developer's obligations hereunder as to times following the effective date of the
assignment or transfer;
(b) the proposed assigneeltransferee has demonstrated to the
reasonable satisfaction of City that such person or entity has adequate financial
capacity to fulfill all obligations of this Agreement.
10.6 Enforcement. Unless amended or cancelled as provided in Section 10.2, this Agreement is
enforceable by any party to it despite a change in the applicable general or specific plans,
zoning, subdivision or building regulations adopted by the City which alter or amend the
rules, regulations or policies governing permitted uses of the land, density and design.
10.7 Bindino Effect of Aoreement. The burdens of this Agreement bind and the benefits of this
Agreement inure to the parties' successors or assignees in interest.
10.8 Notices. All notices, demands or requests provided for or permitted to be given pursuant to
this Agreement must be in writing. All notices, demands or requests to be sent to any party
shall be deemed to have been properly given or served if (i) personally served, or
(ii) deposited in the United States mail, addressed to such party, postage prepaid, registered
or certified, with return receipt requested, at the addresses identified herein as the places of
business for each of the designated parties.
City of Chula Vista DeveloDer
Attn: Community Development Director
Community Development Department WGA Orange Avenue, LP
276 Fourth Avenue 9252 Chesapeake Dr.
Chula Vista, CA 91910 San Diego, CA 92123
With a copy to: With a copy to:
Attn: City Attorney
A party may change its address by giving notice in writing to the other party. Thereafter, notices,
demands and requests shall be addressed and transmitted to the new address.
Affordable Regulatory Housing Agreement
14
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Signature Page to Follow
15
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Affordable Regulatory Housing Agreement
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the
day and year first written above.
I'CITYII
CITY OF CHULA VISTA, a municipal corporation of the
State of California
By:
David R. Garcia, City Manager
ATTEST:
Susan Bigelow, City Clerk
APPROVED AS TO FORM:
Ann Moore, City Attorney
"DEVELOPER"
WGA ORANGE AVENUE, a California
limited partnership
By:
By:
Name:
~{l
VIe"", [Ip"l:f
"'i-q- cYl
Its:
Date:
By:
Name:
Its:
Date:
Affordable Regulatory Housing Agreement
16
13-135
EXHIBIT A
LEGAL PROPERTY DESCRIPTION
All that certain real property situated in the City of Chula Vista, County of San Diego, State
of California, described as follows:
Parcel 1 of Parcel Map No. 15164, in the City of Chula Vista, County of San Diego, State of
California, Filed in the office of the County Recorder of San Diego County, on February 29,
1988 as File No. 88-090173 of Official Records.
EXHffiIT A
065550-0009 251465.3 doc
13-136
EXHIBIT B
FORM OF SILENT SECOND NOTE
EXHIBIT B
065550-0009 251465.3 doc
13-137
NOTICE: THIS NOTE MAY REQUIRE PAYMENT OF PRINCIPAL AND INTEREST
UPON THE SALE OR TRANSFER OF THE PROPERTY OR UPON A PREPAYMENT.
PROMISSORY NOTE SECURED BY DEED OF TRUST
$
2006
Amount
Date
[Insert Property Address]
1. Borrower's Promise to Pay. For value received, the undersigned,
("Borrower"), promises to pay to the City of Chula
Vista ("City"), or order, the sum of ($) with interest
accruing thereon as hereinafter provided, and payable as set forth below. It is understood
that the City may transfer this Note. The Lender or anyone who takes this Note by transfer
and who is entitled to receive payments under this Note will be called the "Note Holder".
2. No Interest. This Note will bear no interest unless the Borrower defaults under the
terms of this Note, the Deed of Trust securing it and/or the Covenants, Conditions and
Restrictions affecting the Property. In the event of default, interest from the Date of this
Note shall be calculated at:
a) The rate equal to the interest rate of the senior trust deed or, in the event of
no sen ior trust deed,
b) The prevailing rate of the Prime Rate as published in the Wall Street Journal,
on the date of default.
3. Payments and Term. The term of this Note extends for 30 years from the date of the
Deed of Trust or until the Borrower sells, rents, refinances, transfers or changes the title of
the property designated on the accompanying Deed of Trust, whichever occurs earlier. A
transfer constitutes sold, or otherwise conveyed voluntary or involuntary, by operation of
law or otherwise. No delay or omission on the part of the City shall operate as a waiver of
such right of repayment or of any other right of this Note. The principal amount of this
Note, together with the City's proportionate share of any appreciation as further defined,
shall be due and payable on or before the date provided by the City in the Notice of
Acceleration, which shall not be less than thirty (30) days, if all or any part of the Property
or any interest in it is sold, rented, refinanced, conveyed, or transferred or if a beneficial
interest in Borrower is sold, rented, refinanced, conveyed, or transferred (or if a beneficial
interest in Borrower is sold, rented, refinanced, conveyed, or transferred and Borrower is
not a natural person) (herein called "Transfer) without the prior written consent of the City,
as further defined in Section 6 below. The City shall not exercise this right of acceleration
if prohibited by federal law as of the date of the Deed of Trust or if the City has executed a
separate written waiver of this option. All payments made under this Note shall be paid in
Page 1 of 5
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lawful money of the United States to the City of Chula Vista at 276 Fourth Avenue, Chula
Vista, CA 91910, Attention: Community Development Department, Housing Division.
4. Market Value Appreciation. In addition to the principal amount of this Note, City
shall recapture its proportionate share of any appreciation. iThe City's proportionate share
of appreciation shall be equal to the ratio of the initial subsidy to the fair market value of
the home at the time of initial sale. Borrower shall retain value of any improvements,
down payment and proportionate share of any appreciation. "Improvements" shall be
defined as any permanent improvement (i.e. fixed improvement that will remain with the
property such as installation of hardwood floors) approved by the City in writing. The
principal amount of the Note and proportionate share of any appreciation are immediately
due and payable upon Transfer.
A sample calculation is illustrated below:
Initial Fair Market Sales Price $
Moderate Income Affordable Price $
City Share (Fair Market Price-Moderate Income Price) $
Percentaee Value of Citv Share
400,000
(280,000)
120,000
33.0%
Re-Sale Price
Assumed Initial Borrower Downpayment and Improvement Costs
$450,000
$16,000
Re-Sale Price-Initial Fair Market Price
Appreciation
$50,000
$34,000
TOTAL DUE TO CITY
TOTAL DUE TO HOMEOWNER
$
$
131,220
318780
5. Market Value Depreciation. If upon resale, the market value is lower than the
initial sales price, then the Note amount shall be reduced by subtracting the current market
value from the initial sales price. The resulting sum will then be subtracted from the Note
amount.
6. Transfer. A transfer constitutes sold, or otherwise conveyed, voluntary or
involuntary, by operation of law or otherwise. The following shall not constitute a Transfer,
but require the prior written consent of the City:
(a) A transfer of the Property from a deceased Borrower to the surviving spouse
of the Borrower if the surviving spouse is also named as a Borrower;
(b) A transfer of the Property by a Borrower to his/her spouse pursuant to which
the spouse becomes a co-owner of the Property;
(c) A transfer of the Property resulting from a decree of dissolution of the
marriage or legal separation or from a property settlement agreement
incidental to such a decree which requires the Borrower to continue to
make payments on the Note and by which a spouse who is already a
Borrower becomes the sole owner of the Property;
Page 2 of 5
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(d) A transfer of the Property to a Borrower to an inter-vivos trust in which the
Borrower is the sole beneficiary;
A transfer by means of encumbering the Property with a lien that is a junior lien to the lien
securing the loan to Borrower evidenced by the Deed of Trust.
(e)
A conveyance by sale or otherwise, to a party which the City of
Chula Vista City Manager, or his designee, determines meets all the
requirements to be deemed a "Low Income Buyer" as defined in the
"Affordable Housing Regulatory Agreement" filed for record with the
County recorder of the San Diego County on , 2006 as
Document No. 2006-
7. Prepayment. Borrower has the right to prepay the principal without incurring any
penalty, apart from any interest that may be due under default provisions above. In the
event that Borrower chooses to prepay the Note, Borrower must notify Note Holder in
writing. If the property is not for sale or in escrow at the time of such notification, no
equity share will be due. Only the full amount of the principal will be due to the City. If
the property is for sale or in escrow at the time of notification, the Note will be part of the
escrow and Borrower will incur appropriate equity share as an obligation.
8. Default Under Deed of Trust. Notwithstanding any other provisions of the Note, if
default occurs in any of the covenants or agreements contained in the Deed of Trust
securing this Note, this Note shall immediately become due and payable in full at the
option of the City. In the event the City exercises such option, the amounts due and
payable shall be the principal balance remaining on the Note and other amounts owing,
together with accrued but unpaid interest as described above.
9. Attorneys' Fees. Should suit be commenced to collect on this Note, or any portion
thereof, such sum as the court may deem reasonable shall be added hereto as attorneys'
fees.
10. Time. Time is of the essence herein.
11. Amendments. This Note may not be modified or amended except by an instrument in
writing expressing such intention and signed by an authorized representative of the City
and Borrower.
12.Severability. If any term or prOVISion hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity and binding effect of the
remainder of this Note upon the parties.
13.Borrower's Waivers. Borrower waives any rights to require the City to perform certain
acts. Those acts are:
(a) To demand payment of amounts due (known as "presentment").
(b) To give notice that amounts due have not been paid (known as "notice of
dishonor").
Page 3 of 5
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13-140
(c) To obtain an official certification of non-payment (known as "protest").
14. Giving of Notices. Any notice that must be given to Borrower under this Note will be
given by delivering it or by mailing it first class mail or by certified mail, return receipt
requested, addressed to Borrower at the address set forth above. A notice that must be
given to the City under this Note will be given by mailing it certified mail, return receipt
request, to the City at the address stated in Section 3 above. Any party may change its
address by a notice given to the other party in the manner set forth in this Section.
15. Joint and Several Responsibility. If more than one person executes this Note, each is
fully and personally obligated to pay the full amount owed and to keep all promises in this
Note.
Page 4 of 5
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Initials
Date:
NOTICE TO BORROWER
Do not sign this Note if it contains blank spaces.
All spaces should be completed before you sign.
Borrower's Name
Borrower's Name
Page 5 of 5
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EXHIBIT C
FORM OF SILENT SECOND TRUST DEED
EXHIBIT C
13-143
065550-0009 251465.3 doc
WHEN RECORDED PLEASE MAIL TO:
CITY OF CHULA VISTA
Community Development Department
Housing Division
276 Fourth Avenue
Chula Vista, CA 91910
THI
DEED OF TRUST
THIS DEED OF TRUST, is made this _ day of , 200_, among the
Trustor(s), , a (herein "Borrower"), and the City of Chula Vista
(herein "Beneficiary") a public body, corporate and politic, whose address is 276 Fourth Avenue,
Chula Vista, CA 91910.
BORROWER, in consideration of the indebtedness herein recited and the trust herein created,
irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described
property located in the City of Chula Vista, County of San Diego, State of California [which has the
address of property address here (herein "Property Address")]:
SEE EXHIBIT NA" ATTACHED HERETO FOR LEGAL DESCRIPTION
Said Deed of Trust is second and subsequent in lien to a First Deed of Trust recording concurrently
herewith in favor of the first lien holder, xxx, a California Corporation in the amount of xxxx and
00/100 Dollars;
TOGETHER with all the improvements now and hereafter erected on the Property, and all easements,
rights, appurtenances and rents (subject however to the rights and authorities given herein to the
Beneficiary to collect and apply such rents), all of which shall be deemed to be and remain part of the
property covered by this Deed of Trust; and all of the foregoing, together with said property (or the
leasehold estate if this Deed of Trust is on a leasehold) are hereinafter referred to as the "Property";
TO SECURE to the Beneficiary the repayment of the indebtedness evidenced by Borrower's
promissory note, dated , 200_ and extensions and renewals thereof (herein
"Note"), in the principal sum of xxx and 00110 Dollars ($xxx), if not sooner paid, is due and payable
30 years from the date of this Deed of Trust. If all or any part of the Property or any interest in the
property is sold, rented, refinanced, conveyed or transferred, (each of which is called a "Transfer")
without the prior written consent of Beneficiary the Note shall become due and payable
immediately. Upon resale Borrower shall retain value of any improvements, down payment and
proportionate share of any appreciation. City shall recapture its proportionate share of any
appreciation, which is equal to the percentage by which the initial sales price of the moderate
Page 1 of13
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13-144
income unit was less than the fair market value of the home at the initial time of sale. This
recapture provision shall be more fully explained in the related Promissory Note.
Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the
right to grant and convey the Property, and that the Borrower's subject property is unencumbered
except for encumbrances of record. Borrower covenants that Borrower warrants and will defend
generally the title to the Property against all claims and demands, subject to encumbrances of
record.
UNIFORM COVENANTS
Borrower and Beneficiary covenant and agree as follows:
1. Payment of Principal and Interest. Borrower shall promptly pay when due the principal and
interest indebtedness evidenced by the Note.
If payment of the indebtedness is required due to a Sale of the Property where the purchase
price is equal to or less than the Acquisition Cost of the Property, assuming an open and
competitive sale, then repayment shall be made in the following order and amount:
(a) Outstanding principal and interest balance of the primary lender's loan;
(b) Borrower's initial down-payment investment and normal cost of sale;
(c) Borrower's value of any permanent improvements approved by the City;
(d) Accrued simple interest on the principal amount of the Beneficiary's
loan at the interest rate and the terms contained in the Promissory Note;
(e) The principal amount of the Beneficiary's loan; and
(f) Any remainder to borrower.
2. Market Value Appreciation/Depreciation. In addition to the principal amount of this Note, City
shall recapture City's proportionate share of any appreciation. The City's proportionate share of
appreciation shall be equal to the ratio of the initial subsidy to the fair market value of the home at
the time of initial sale. Borrower shall retain value of any improvements, down payment and
proportionate share of any appreciation. "Improvements" shall be defined as any permanent
improvement (i.e. fixed improvement that will remain with the property such as installation of
hardwood floors) approved by the City in writing. The principal amount of the Note and
proportionate share of any appreciation are immediately due and payable upon Transfer.
If upon resale, the market value is lower than the initial market value, then the Note amount shall
be reduced by subtracting the current market value from the initial sales price. The resulting sum
will then be subtracted from the Note amount.
Page 2 of 13
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13-145
3. Funds for Taxes and Insurance. To protect the security of the Deed of Trust, Trustor agrees to
pay, at least ten (10) days before delinquency, all taxes and assessments affecting said property;
when due, all encumbrances, charges and liens, with interest, on said property or any part thereof,
which appear to be prior or superior hereto; and all costs, fees and expenses of this Deed of Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary,
without obligation to do so and without notice to or demand upon Trustor and without releasing
Trustor from any obligation hereof, may make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to
enter upon said property for such purposes; appear in and defend any action or proceeding purporting
to affect the security hereof or the rights powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or
superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay
h islher reasonable fees.
4. Application of Payments. Unless applicable law provides otherwise, all payments received by
Beneficiary under section 1 and 2 shall be applied; first, to any prepayment charges due under the
Note; second, to amounts payable under section 2; third, to interest due; fourth, to principal due; and
last, to any late charges due under the Note.
5. Prior Mortgages and Deeds of Trust; Charges; liens. Borrower shall perform all of Borrower's
obligations under any mortgage, deed of trust or other security agreement with a lien which has
priority over this Deed of Trust, including Borrower's covenants to make payments when due.
Borrower shall payor cause to be paid all taxes, assessments and other charges, fines and impositions
attributable to the Property which may attain a priority over this Deed of Trust, and leasehold
payments or ground rents, if any.
6. Hazard Insurance. Borrower shall keep the improvement(s) now existing or hereinafter erected
on the Property insured against loss by fire, hazards included within the term "extended coverage",
and such other hazards as Beneficiary may require and in such amounts and for such periods as
Beneficiary may require.
The insurance carrier providing the insurance shall be chosen by Borrower subject to
approval by Beneficiary; provided, .that such approval will not be unreasonably withheld. All
insurance policies and renewals thereof shall be in a form acceptable to Beneficiary and shall
include a standard mortgage clause in favor of and in a form acceptable to Beneficiary. Beneficiary
has the right to hold the policies and renewals thereof, subject to the terms of any mortgage, deed
of trust or other security agreement with a lien which has priority over this Deed of Trust.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and
Beneficiary. Beneficiary may make proof of loss if not made promptly by Borrower.
If Property is abandoned by Borrower, or if Borrower fails to respond to Beneficiary within
30 days from the date notice is mailed by Beneficiary to Borrower that the insurance carrier offers
to settle a claim for insurance benefits, Beneficiary is authorized to collect and apply the insurance
proceeds at Beneficiary's option either to .restoration or repair of the Property or to the sums
secured by this Deed of Trust.
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13-146
7. Preservation and Maintenance of Property, Condominium, Cooperatives, Planned Unit
Developments. Borrower will keep the Property in good repair and shall not commit waste or
permit impairment or deterioration of the Property and shall maintain property including the
principle house, garage, and out buildings as well as lawn maintenance, and shall comply with the
provisions of any lease if this Deed of Trust is on a leasehold. If this Deed of Trust is on a unit in a
condominium or a planned unit development, Borrower shall perform all of Borrower's obligations
under the declaration or covenants, conditions and restrictions, creating or governing the
condominium, planned unit development, the by-laws and regulations of the condominium or
planned unit development, and constituent documents.
8. Protection of Beneficiary Security. If Borrower fails to perform the covenants and agreements
contained in this Deed of Trust, or if any action or proceeding is commenced which materially
affects Beneficiary's interest in the Property, then Beneficiary, at Beneficiary's option, upon notice
to Borrower, may make such appearances, disburse such sums including reasonable attorneys'
fees, and take such action as is necessary to protect Beneficiary's interest. If Beneficiary required
mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower
shall pay the premiums required to maintain such insurance in effect until such time as the
requirement for such insurance terminates in accordance with Borrower's and Beneficiary's written
agreement or applicable law.
Any amounts disbursed by Beneficiary pursuant to this Paragraph, with interest thereon, at
the original Note rate, will become additional indebtedness of Borrower secured by this Deed of
Trust. Unless Borrower and Beneficiary agree to other terms of payment, such amounts will be
payable upon notice from Beneficiary to Borrower requesting payment thereof. Nothing contained
in this Paragraph will require Beneficiary to incur any expense or take any action hereunder.
9. Inspection. Beneficiary may make or cause to be made reasonable entries upon and
inspections of the Property, provided that Beneficiary will give the Borrower notice prior to any
such inspection specifying reasonable cause therefor related to Beneficiary's interest in the
Property .
10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in
connection with any condemnation or other taking the Property, or part thereof, or for conveyance
in lieu of condemnation, are hereby assigned and shall be paid to Beneficiary subject to the terms
of any mortgage, deed of trust or other security agreement with a lien which has priority over this
Deed of Trust.
11. Borrower Not Released; Forbearance by Beneficiary Not a Waiver. Extension of the time for
payment or modification of payment of the sums secured by this Deed of Trust granted by
Beneficiary to any successor in interest of Borrower shall not operate to release, in any manner, the
liability of the original Borrower and Borrower's successors in interest. Beneficiary shall not be
required to commence proceedings against such successor or to extend time for payment or
otherwise modify payment of the sums secured by this Deed of Trust by reason of any demand
made by the original Borrower and Borrower's successors in interest. Any forbearance by
Beneficiary in exercising any right or remedy hereunder, or otherwise afforded by applicable law,
shall not be a waiver of or preclude the exercise of any such right or remedy.
12. Successors and Assil:ns Bound, Joint and Several Liability; Co-sil:ners. The covenants and
agreements herein contained shall bind, and the rights hereunder shall inure to, the respective
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successors and assigns of Beneficiary and Borrower, subject to the provisions of Paragraph 16
hereof. All covenants and agreements of Borrower shall be joint and several. Any Borrower who
co-signs this Deed of Trust, but does not execute the Note:
(a) Is co-signing this Deed of Trust only to grant and convey that Borrower's interest in
the Property to Trustee under the terms of this Deed of Trust,
(b) Is not personally liable on the Note or under this Deed of Trust, and
(c) Agrees that the Beneficiary and any other Borrower hereunder may agree to extend,
modify, forbear, or make any other accommodations with regard to the terms of this
Deed of Trust or the Note, without that Borrower's consent and without releasing
that Borrower or modifying this Deed of Trust as to that Borrower's interest in the
Property .
13. Notice. Except for any notice required under applicable law to be given in another manner,
any notice to Borrower provided for in this Deed of Trust shall be given by delivering it or by
mailing such notice by certified mail, addressed to Borrower at the Property address or such other
address as Borrower may designate by notice to Beneficiary as provided herein, and
(a) Any notice to Beneficiary will be given by certified mail, return receipt requested, to
Beneficiary address stated herein or to such other address as Beneficiary may designate
by notice to Borrower as provided herein.
(b) Any Notice provided for in this Deed of Trust shall be deemed to have been given
to Borrower or Beneficiary when given in the manner designated herein.
14. Governinll law, Severability. The state and local laws applicable to this Deed of Trust shall be
the laws of the jurisdiction in which the Property is located. The foregoing sentence shall not limit
the applicability of Federal law to this Deed of Trust. In the event that any provision or clause of
this Deed of Trust or the Note conflicts with applicable law, such conflict shall not affect other
provisions of this Deed of Trust or the Note which can be given effect without the conflicting
provision, and to this end the provisions of this Deed of Trust and the Note are declared to be
severable. As used herein, "costs", "expenses" and "attorneys' fees" include all sums to the extent
not prohibited by applicable law or limited herein.
15. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and this Deed of
Trust at the time of execution or after recordation hereof.
16. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property
or any interest in it is sold, rented, refinanced, conveyed or transferred (or if a beneficial interest in
Borrower is sold, rented, refinanced, conveyed or transferred and Borrower is not a natural person),
the loan shall become immediately due and payable, unless approved by the City in accordance
with the provisions below.
The following shall not constitute a Transfer:
(a) A transfer of the Property from a deceased Borrower to the surviving spouse
of Borrower if the surviving spouse is also named as a Borrower;
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(b) A transfer of the Property by Borrower to his/her spouse pursuant to which
the spouse becomes a co-owner of the Property;
(c) A transfer of the Property resulting from a decree of dissolution of the
marriage or legal separation or from a property settlement agreement
incidental to such a decree which requires Borrower to continue to make
payments on the Note and by which a spouse who is already a Borrower
becomes the sole owner of the Property;
(d) A transfer of the Property by Borrower to an inter-vivos trust in which
Borrower is the sole beneficiary and which is done for estate planning
purposes only and does not result in any change in possession of the
Property;
(e) A refinancing to which Beneficiary under this Deed of Trust is obligated to
subordinate this Deed of Trust; and
(f) A refinancing which does not result in cash excess paid to Borrower or
which is used for debt consolidation, equity line of credit or similar
purposes.
(g) A conveyance by sale or otherwise, to a party which the City of
Chula Vista City Manager, or his designee, determines meets all the
requirements to be deemed a "Moderate Income Buyer" as defined in
the "Affordable Housing Regulatory Agreement" filed for record with
the County recorder of the San Diego County on , 2007 as
Document No. 2007-
Provided that Borrower is not in default under the terms of the Note or this Deed of Trust,
no interest shall accrue under the Note. Nothing contained in this Paragraph or Section 8 of the
Note shall be construed as a promise by Beneficiary to forgive or relinquish the right to seek
repayment of the principal of the Note.
NON-UNIFORM COVENANTS
Borrower and Beneficiary further covenant and agree as follows:
17. Acceleration, Remedies. Upon Borrower's breach of any covenant or agreement of Borrower
in this Deed of Trust, including the covenants to pay when due any sums secured by this Deed of
Trust, and those contained in paragraph 17 hereof, the Beneficiary, prior to acceleration, shall give
notice to Borrower as provided in Paragraph 12 hereof specifying:
(a) The breach;
(b) The action required to cure such breach;
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(c) A date, not less than 10 days from the date the notice is mailed to Borrower, by
which such breach must be cured; and
(d) That failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by this Deed of Trust and sale of the
Property .
The notice shall further inform Borrower of the right to reinstate after acceleration and the
right to bring a court action to assert the nonexistence of a default or any other defense of Borrower
to acceleration of sale. If the breach is not cured on or before the date specified in the notice,
Beneficiary, at Beneficiary's option, may declare all of the sums secured by this Deed of Trust to be
immediately due and payable without further demand and may invoke the power of sale and any
other remedies permitted by applicable law. Beneficiary shall be entitled to collect all reasonable
costs and expenses incurred in pursuing the remedies provided in this Paragraph 17, including, but
not limited to, reasonable attorneys' fees.
If Beneficiary invokes power of sale, Beneficiary shall execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Beneficiary's election to cause the
Property to be sold and shall cause such notice to be recorded in each county in which the
Property or some part thereof is located. Beneficiary or Trustee shall mail copies of such notice in
the manner prescribed by applicable law. Trustee shall give public notice of sale to the persons
and in the manner prescribed by applicable law. After the lapse of such time as may be required
by applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction
to the highest bidder at the time and place and under the terms designated in the notice of sale in
one or more parcels and in such order as Trustee may determine. Trustee may postpone sale of all
or any parcel of the Property by public announcement at the time and place of any previously
scheduled sale. Beneficiary or Beneficiary's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without
any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima
facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the
sale in the following order:
(a) To all reasonable costs and expenses of the sale, including, but not limited to,
reasonable Trustee's and attorneys' fees and costs of title evidence;
(b) To all sums secured by this Deed of Trust; and
c) The excess, if any, to the person or persons legally entitled thereto.
18. Borrower's Rillht to Reinstate. Not withstanding Beneficiary's acceleration of the sums
secured by this Deed of Trust due to Borrower's breach, Borrower shall have the right to have any
proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any time prior to
five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust
or at any time prior to entry of a judgment enforcing this Deed of Trust if:
(a) Borrower pays Beneficiary all sums, which would be then due under this Deed of
Trust, and the Note, had no acceleration occurred;
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(b) Borrower cures all breaches of any other covenants or agreements of Borrower
contained in the Deed of Trust;
(c) Borrower pays all reasonable expenses incurred by Beneficiary and Trustee in
enforcing the covenants and agreements of Borrower contained in this Deed of
Trust, and in enforcing Beneficiary's and Trustee's remedies as provided in
Paragraph 18 hereof, including, but not limited to, reasonable attorneys' fees; and
(d) Borrower takes such action as Beneficiary may reasonably require to assure that the
lien of this Deed of Trust, Beneficiary's interest in the Property and Borrower's
obligation to pay the sums secured by this Deed of Trust shall continue unimpaired.
Upon such payment and cure by Borrower, this Deed of Trust and the obligations secured
hereby shall remain in full force and effect as if no acceleration had occurred.
19. Assillnment of Rents; Appointment of Receiver; Beneficiary in Possession. As additional
security hereunder, Borrower hereby assigns to Beneficiary the rents of the Property, provided that
Borrower shall, prior to any default by Borrower in payment of any indebtedness secured hereby or
in performance of any agreement hereunder, have the right to collect and retain such rents as they
become due and payable. .
Upon any such default, the Beneficiary, in person, by agent or by judicially appointed
receiver, shall be entitled to enter upon, take possession of and manage the Property and to collect
the rents of the property including those past due. All rents collected by Beneficiary or the receiver
shall be applied first to payment of the cost of management of the Property and collection of rents,
including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable
attorneys' fees, and then to the sums secured by this Deed of Trust. Beneficiary and the receiver
shall be liable to account only for those rents actually received. The entering upon and taking
possession of said property and the collection of such rents and the application thereof as aforesaid
shall not cure or waive any default or notice of default hereunder or invalidate any act done
pursuant to such notice.
20. Reconveyance. Upon payment of all sums secured by this Deed of Trust, Beneficiary shall
request Trustee to reconvey the Property an<;! will surrender this Deed of Trust and all Notes
evidencing indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the
Property without warranty and without charge to the person or persons legally entitled thereto.
Such person or persons shall pay all costs of recordation, if any.
21. Substitute Trustee. The Beneficiary, or any successor in ownership of any indebtedness
secured hereby, may from time to time appoint a successor trustee to any Trustee appointed
hereunder by an instrument executed and acknowledged by Beneficiary and recorded in the office
of the Recorder of the county where the Property is located. The instrument shall contain the
name of the original Lender, Trustee and Borrower, the book and page where this Instrument is
recorded and the name and address of the successor trustee. The successor trustee shall, without
conveyance of the Property, succeed to all the title, power and duties conferred upon the Trustee
herein and by applicable law. This procedure for substitution of trustee shall govern to the
exclusion of all other provisions for substitution.
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22. Request for Notices. Borrower requests that copies of the Notice of Default and Notice of Sale
be sent to Borrower's address, which is the Property Address. Beneficiary requests that copies of
notices of foreclosure from the holder of any lien which has priority over this Deed of Trust be sent
to Beneficiary's address, as set forth on Page One of this Deed of Trust as provided by Section
2924b of the Civil Code of California.
23. Fee for Requested Statements. The Beneficiary may charge a fee not to exceed Sixty Dollars
($60.00) for furnishing the statement of obligation as provided in Section 2943 of the Civil Code of
California.
24. Deed of Trust Rider. The Deed of Trust Rider executed by Borrower is attached and made part
of this Deed of Trust.
25. Covenants, Conditions and Restrictions. The Property is subject to Covenants, Conditions and
Restrictions ('Restrictions") between the Beneficiary and the Borrower, that are not attached hereto
but are incorporated by reference. Borrower acknowledges receipt of said Restrictions and agrees
for him/her self/ his/her heirs, successors and assigns to be bound by the same.
26. Warranties of Borrower. Borrower warrants to City that:
(a) Borrower is a first-time homebuyer; that is, s/he has not owned a home, or had any
ownership interest in a home within a three-year (3 year) period immediately
preceding the date of this Deed of Trust, and
(b) That Borrower's annual gross income does not exceed eighty percent (80%) of the
median income for the San Diego metropolitan area, as adjusted for family size, as
said median income is determined by the U.S. Department of Housing and Urban
Development (HUD), on the latter of:
1. The date of initial application to the City; or
2. The date of the recordation of this Deed of Trust.
(c) That for so long as Borrower owns the Property, Borrower will reside in the
Property as Borrower's principal place of residence. Borrower agrees not to sublet,
lease or rent out the Property during the term of this Deed of Trust.
27. Subordination. The Beneficiary and Borrower acknowledge and agree that this Deed of Trust
is subject to and will subordinate in all respects to the liens, terms, covenants and conditions of the
First Trust Deed and to all advances heretofore made or wh ich may be hereafter be made pursuant
to the First Trust Deed including all sums advanced for the purpose of:
(a) Protecting or further securing the lien of the First Trust Deed, curing defaults by the
Borrower under the First Trust Deed or for any other purpose expressly permitted
by the First Trust Deed, and
(b) Constructing, renovating, repairing, furnishing, fixturing or equipping the Property.
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The terms and provisions of the First Trust Deed are paramount and controlling, and they
supersede any other terms and provisions hereof in conflict therewith. In the event of a foreclosure
of deed in lieu of foreclosure of the First Trust Deed, any provisions herein or any provision in any
other collateral agreement restricting the use of the Property to low or moderate income
households or otherwise restricting the Borrower's ability to sell the Property shall have no further
force or effect on subsequent owners or purchasers of the Property. Any person, including his/her
successors or assigns (other than the Borrower or a related entity of the Borrower), receiving title to
the Property through a foreclosure or deed in lieu of foreclosure of the First Trust Deed shall
receive title to the property free and clear from such restrictions.
Further, if the Primary Lender acquires title to the Property pursuant to a deed in lieu of
foreclosure, the lien of this Deed of Trust shall automatiCally terminate upon the Primary Lender's
acquisition of title, provided that:
(a) The Beneficiary has been given written notice of a default under the First Trust
Deed, and
(b) The Beneficiary shall not have cured the default under the First Trust Deed, or
diligently pursued curing the default as determined by the Primary Lender, within
the 60-day period provided in such notice sent to the Beneficiary.
The Beneficiary and Borrower further acknowledge and agree that this Deed of Trust will
only subordinate for a rate and term refinance of the First Trust Deed at the discretion of the
Beneficiary and shall not be subject to subordination for a cash out refinance, equity line of credit
or any other such form of refinance as deemed inappropriate by the Beneficiary.
28. Funds for Taxes and Insurance. The Beneficiary will waive collection of impounds for taxes
and assessments (including condominium, planned unit development and planned residential
development assessments, if any). Borrower will make all payments for impounds to First Trust
Deed holder.
29. Riders to this Security Instrument. If one or more riders are executed by Borrower and
recorded together with this Security Instrument, the covenants and agreements of each such rider
shall be incorporated into and shall amend and supplement the covenants and agreements of this
Security Instrument as if the rider(s) were a part of this Security Instrument. [Check applicable
box(es)]
o Transfer Rider
o 1-4 Family Rider
o Other(s) [specify]:
o Condominium Rider
o PU D Rider
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this
Security Instrument and in any rider(s) executed by Borrower and recorded with it.
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ACKNOWLEDGMENT:
State of California
County of San Diego
On
before me,
, Notary, personally appeared
personally known to me (or 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.
WITNESS my hand and official seal.
Signature:
DO NOT RECORD THIS PAGE
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REQUEST FOR RECONVEYANCE
TO TRUSTEE:
The undersigned is the holder of the note or notes secured by this Deed of Trust. Said note or
notes, together with all other indebtedness secured by this Deed of Trust, have been paid in full.
You are hereby directed to cancel said note or notes and this Deed of Trust, which are delivered
hereby, and to reconvey, without warranty, all the estate now held by you under this Deed of Trust
to the person or persons legally entitled thereto.
Dated:
DO NOT LOSE OR DESTROY THIS DEED OF TRUST OR THE NOTE WHICH IT SECURES. BOTH MUST BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION BEFORE RECONVEYANCE WI LL BE MADE.
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EXHIBIT "AU
LEGAL DESCRIPTION
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EXHIBIT D
FORM OF SUPPLEMENTAL BUYER APPLICATION
EXHIBIT D
13-157
065550-0009 251465.3 doc
SCHEDULE 1
LIST OF MARKET RATE PRICES
SCHEDULE 1
06SSS0-UOO9 251465.3 doc
13-158