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Res 95-054RESOLUTION NO. 95-054 and R-95-07 JOINT RESOLUTION OF AGREEMENT OF THE CITY COUNCIL OF THE CITY OF POWAY AND THE POWAY REDEVELOPMENT AGENCY RELATING TO THE ACQUISITION OF AN AFFORDABLE HOUSING COVENANT (POWAY ROYAL MOBILEHOME PARK) WHEREAS, the Poway Redevelopment Agency (the "Agency") is a redevelopment agency organized under the provisions of the Community Redevelopment Law (Health and Safety Code § 33000 et. seq.) (the "Law"); WHEREAS, pursuant to § 33334.2 of the Law, the Agency is obligated to use at least twenty percent (20%) of its tax increment funds for the purpose of increasing, improving and preserving the community's supply of low and moderate income housing available at affordable housing cost, and the Agency maintains a Low and Moderate Income Housing Fund pursuant to § 33334.3 of the Law to hold the amounts so dedicated, until used; WHEREAS, the Agency is authorized to expend monies held in the Low and Moderate Income Housing Fund to maintain the community's supply of mobilehomes for the purposes of Section 33334.2 of the Law, to provide subsidies to or for the benefit of persons and families of low or moderate income to the extent those households cannot obtain housing at affordable housing cost on the open market and to pay principal or interest on indebtedness; WHEREAS, the City of Poway (the "City") controls the Poway Royal Estates Mobilehome Park CPoway Royal"), a 399 space mobilehome park located generally at Metate Lane and Community Road in the City of Poway, pursuant to a financing lease agreement between the Agency and the City; WHEREAS, the Agency may use monies in its Low and Moderate Income Housing Fund outside the Paguay Redevelopment Project Area (the "Project Area") upon a finding of the City Council and the Agency that the use of such funds will be of benefit to the Project Area; WHEREAS, the City is authorized to lease, own and operate Poway Royal and to assist the Agency with respect to its affordable housing responsibilities; WHEREAS, the Agency and the City wish to assure that a minimum number of mobilehome spaces at Poway Royal are occupied by and available to persons and families of low or moderate income at an affordable housing cost within the meaning of and for the purposes of § 33334.2 of the Law, and to this end the Agency wishes to purchase and the City wishes to sell the Affordability Covenant more particularly defined below, and to provide all administrative services in connection with the administration and maintenance of such Affordability Covenant; and WHEREAS, the parties wish to set forth the terms and conditions of such acquisition herein. I'UBL:27070_4 ] l 71 B2345.55 06/14/95 Resolution No. 95-054 & Page 2 R-95-07 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF POWAY AND THE POWAY REDEVELOPMENT AGENCY JOINTLY AS FOLLOWS: Section 1. The foregoing Recitals are true and correct. Section 2. In consideration of the payment by the Agency to the City of Two Million One Hundred Thousand Dollars ($2,100,000), the City shall maintain not fewer than fifty (50) mobilehome spaces at Poway Royal as Affordable Housing Units (defined below), at Affordable Housing Cost (defined below) for the Affordability Tet~m (defined below). The undertaking set forth in this Joint Resolution of Agreement shall be referred to herein as the "Affordability Covenant". For purposes of this Agreement the following terms shall have the following meanings: ao "Affordable Housing Unit" shall mean a mobilehome space occupied pursuant to an agreement by the owner/occupant of a mobilehome which occupants shall be persons and families of low or moderate income as defined by California Health and Safety Code § 50093 and Regulations promulgated thereunder. bo "Affordable Housing Costs" shall have the meaning set forth in California Health and Safety Code § 50052.5 for owner occupied housing for moderate income households (or at the City's option, lower income households or very low income households). The Agency and the City hereby find and determine that application of the definition of owner occupied housing is appropriate for mobilehome parks such as Poway Royal based upon, among other considerations, the Regulations promulgated by the California Department of Housing and Community Development which specify that housing costs for purposes of calculating affordability of owner occupied housing include, together with other factors, space rent if the housing unit is situated on rented land (Title 25 CCR § 6920). In the event the Agency reasonably determines, based on the advice of counsel, that a different standard of Affordable Housing Cost shall be applied to this Agreement to maintain compliance by the Agency with its obligations for proper expenditure of monies in the Low and Moderate Income Housing Fund, the City shall upon written notice thereof apply such different standard and the Affordability Term shall be extended, as appropriate, provided the Agency bears the full additional cost of such different standard, if any, reasonably borne by the City in complying therewith. Co "Affordability Term" shall mean the period from the payment by the Agency of the amount described in Section 2 hereof through PUSL:27070_4 [ 171 B2345.55 2 06/14/95 Resolution No. 95-054 & Page 3 R-95-07 and including August 1, 2025 a period of approximately thirty (30) years. Section 3. a. The City and the Agency shall execute and shall cause to be recorded a Memorandum of Affordable Housing Covenants in the Offices of the Recorder of San Diego County as a lien against the entire Poway Royal project, substantially in the form attached hereto as Exhibit "A, subject to such prior encumbrances as may exist in connection with the refinancing of outstanding lease payment obligations of the City for Poway Royal. The Agency hereby finds and determines, based upon the advice of the City's Financial Advisor, that no economically feasible alternative means of financing is available on substantially comparable terms and conditions, without subordination to the City's financing documents. b. The City shall cause each occupant of a mobilehome space which it proposes to count as an Affordable Housing Unit pursuant hereto to enter into the City's Resale Restriction Agreement, or such other agreement approved in writing by the Agency designed to protect the Agency's investment hereunder. The City shall assure the enforceability of this restriction against occupants of Affordable Housing Units, and their mobilehomes, pursuant to a valid lien or other enforcement mechanism, statutory or otherwise, under applicable law. Section 4. a. The City shall be responsible for the administration and implementation of the Affordability Covenant and may charge the Agency for the reasonable costs thereof. The City shall keep full and complete records of its administration of the Affordability Covenant and shall provide, at least annually (more frequently at the written request of the Agency), regular reports of Affordable Housing Units and occupants assisted, to the full extent required to assure compliance with this Joint Resolution of Agreement, and such further documentation as the Agency may reasonably request to assure the Agency that the Affordability Covenant is being administered consistently with the Agency's requirements for expenditure of monies from the Low and Moderate Income Housing Fund. Specifically, the City shall verify and reverify the incomes of residents of Affordable Housing Units as frequently as may be required to assure ongoing compliance with the Law, but in no event lass frequently than at the time of original occupancy and any change in occupancy. b. Except as set forth in this paragraph or otherwise as required by the Law, once a mobilehome space is determined to be an Affordable Housing Unit occupied at an Affordable Housing Cost, such mobilehome space shall continue to be so treated until a change in occupancy occurs. The City shall not otherwise be required to recertify the Affordable Housing Unit determination or Affordable Housing Cost for specific mobilehome spaces. Notwithstanding the foregoing, to the extent space rents are increased for Affordable Housing Units to a level which would cause such Affordable Housing Unit not to be available at Affordable Housing Cost to such occupant (as applied to the occupancy as if such rent existed at the time of original occupancy)) the City shall either: (1) recertify the income eligibility of the occupant as a person or family of low or moderate income and the Affordable Housing Cost for such Affordable Housing Unit, or (2) if necessary to comply with the Affordability Covenant herein, replace such Affordable Housing Unit in accordance with subparagraph (c) below. c. In the event at any time by reason of changes in occupancy or recertification of Affordable Housing Units pursuant to (4)(a) or 4(b) above, the City maintains fewer than fifty (50) Affordable Housing Units available at Affordable Housing Cost, it shall not I'UI~L:27070_4 ! 17 [ B2345.55 3 06/14/95 Resolution No. 95-054 & Page 4 R-95-07 be in default hereunder so long as it achieves such compliance within the next twelve (12) months or with the next space becoming available for occupancy after such twelve (12) month period. Section 5. a. The Agency and City Council hereby find and determine that the Agency's payment under Section 2 hereof will preserve and is reasonably necessary to preserve the community's supply of mobilehomes available to persons and families of low or moderate income at affordable housing cost within the meaning of § 33334.2 of the Law, and anything to the contrary herein notwithstanding, the Agency may waive any default of the City hereunder upon request of the City so long as at least fifty (50) spaces at Poway Royal are occupied by persons or families of low or moderate income at affordable housing cost within the meaning of § 33334.2(a) of the Law. b. The Agency and the City Council hereby find and determine that (1) the provision of assistance pursuant to this Joint Resolution of Agreement is of benefit to the Project Area, (2) the Affordability Covenant will assure the availability of Affordable Housing Units for the Affordability Term, and (3) that the City's administration of the Affordability Covenant for the Affordability Term will benefit households which cannot obtain housing at affordable cost on the open market within the meaning and contemplation of California Health and Safety Code § 33334.2(e)(8). c. The Agency and City hereby find that the requirements of Section 33334.3(0 of the Law are inapplicable to this Joint Resolution of Agreement because new or substantially rehabilitated housing units are not developed or assisted pursuant to this Agreement. Section 6. The City hereby subjects Poway Royal to the Affordability Covenant set forth herein. The City and the Agency hereby declare their express intent that the covenants set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the City's successors in interest to Poway Royal; provided, however, that at the end of the Affordability Term said covenants shall expire. Each and every contract, deed or other instrument executed after the commencement of the Affordability Term covering the Poway Royal project shall conclusively be held to have been executed, delivered and accepted subject to the Affordability Covenant, regardless of whether such covenants are set forth in such contract, deed or other instrument. The City and the Agency hereby declare their understanding and intent that the burden of the Affordability Covenant set forth herein touches and concerns the land. Furthermore, the City and the Agency declare their understanding and intent that the benefit of such Affordability Covenant touches and concerns the land by enhancing and increasing the enjoyment and use of the project by persons and families of low or moderate income, and by furthering the public purposes of the Agency and the City. Notwithstanding the foregoing, the City and the Agency hereby declare their express understanding and intent that no third party shall have any rights pursuant to this Joint Resolution of Agreement, that no third party beneficiaries are created hereunder, and that no third party, including residents o~Poway Royal or others, shall have any right whatsoever, pursuant to this Joint Resolution of A~reement, to enforce the provisions hereof, i The City and the Agency further declare their express understanding and intent that the assistance provided hereunder be used to increase and preserve the long term availability of the community's supply of affordable housing, specifically mobilehomes, as specified herein. To that end, in the event of default of this Agreement by the City, the parties agree that it would be l'UI~L:27070_4 { 17 } B2345.55 4 06/14/95 Resolution No. 95-054 & Page 5 R-95-07 impracticable, extremely difficult to fix, and in contradiction to the purposes set forth herein to establish monetary damages. The City shall not be liable in damages to the Agency, or to any assignee, transferee or successor in interest, and the Agency covenants not to sue for or claim any damages against the City for default hereunder. The parties further agree that the Agency's sole and exclusive remedy hereunder shall be specific performance to correct any default or noncompliance, to ensure adequate performance prospectively from the date of default and to require an extension of the Affordability Term as deemed necessary and appropriate by the Agency to secure for the Agency the substantially full benefit and consideration bargained for in exchange for the Agency assistance. Section 7. The Agency shall pay the amount described in Section 2 hereof to the City on or before August 1, 1995 and the City shall apply such amount to or for the benefit of the Poway Royal project either by prepaying its lease payments, depositing funds with the trustee under the City's Trust Agreement to pay annual amounts under the Certificates of Participation or otherwise applying said monies to the reduction in the annual payments of the outstanding Certificates of Participation relating to the financing of the Poway Royal project, in such manner as the City Manager shall determine based upon the advice of the City's Financial Advisor. The Agency hereby finds and determines that the benefit of the subsidy to Poway Royal provided hereunder will be passed on to occupants of Affordable Housing Units in the form of lower housing costs over the Affordability Term. Section 8. If any provision of this Joint Resolution of Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 9. This Joint Resolution of Agreement shall take effect immediately. Section 10. The City Clerk and Agency Secretary shall certify to the adoption of this Resolution and shall cause a certified Resolution to be filed in the office of the City Clerk/Agency Secretary. PASSED and ADOPTED this 20thday of June , 1995. ATTEST: Marjorie I~'~ Wahlsten, Secretary Poway Red~gvelopment Agency PUs-:27070_4117 [ B2345.55 06/14/95 Resolution No. 95-054 & Page 6 R-95-07 PASSED and ADOPTED this 20th day of ATTEST: City Clerk',` City of Poway June , 1995. Mayor, City ~f~ ' PUBL:27070_4117 ] B2345.55 6 06/14/95 Resolution No. 95-054 & Page 7 R-95-07 STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO ) SS. I, Marjorie K. Wahlsten, Secretary of the Poway Redevelopment Agency, do hereby certify under penalty of perjury that the foregoing Resolution No. 95-054 was duly adopted by the Redevelopment Agency at a meeting of said Agency held on the 20th day of dune , 1995, and that it was so adopted by the following vote: AYES: CAFAGNA, NOES: NONE ABSTAIN: NONE ABSENT: EMERY CALLERY, REXFORD, HIGGINSON Marjorie I~. Wahlsten, Secretary Poway Redevelopment Agency ~'uB[.:27070_4 [ 171 B2345.55 7 06/14/95 Resolution No. 95-054 & Page 8 R-95-07 STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO ) SS. I, Mar.iorie K. Wahl stenCity Clerk of the City of Poway, do hereby certify under penalty of perju~ ~at ~e foregoing Resolution No. R-95-07 was duly adopted by ~e City Council at a meeting of said City held on the 27th day of dune , 1995, and that it was so adopted by the following vote: AYES: CAFAGNA, NOES: NONE .M3STA1N: NONE ABSENT: EMERY CALLERY, REXFORD, HIGGINSON City Clerk}. City of Poway t'uB-:27070_4117 [ B2345.55 06/14/95 EXItlBIT "A" Resolution No. 95-054 & Page 9 R-95-07 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Poway Redevelopment Agency 13325 Civic Center Drive Poway, California 92064 Attention: Executive Director This document is exempt from a recording fee pursuant to Govt. Code § 6103. MEMORANDUM OF AFFORDABLE HOUSING COVENANTS THIS MEMORANDUM OF AFFORDABLE HOUSING COVENANTS ("Memorandum"), dated for identification purposes as of June 20 , 1995, is entered into by and between the POWAY REDEVELOPMENT AGENCY, a public body corporate and politic ("Agency"), and CITY OF POWAY, a municipal corporation ("City"). 1. Joint Resolution of Agreement. Agency and City have executed a Joint Resolution of Agreement of the City Council of the City of Poway and the Poway Redevelopment Agency Relating to the Acquisition of an Affordable Housing Covenant ("Agreement"), dated as of June 20 , 1995, which concerns and is binding upon the City, its successors and assigns and future owners of that certain real property commonly known as the Poway Royal Mobilehome Park located in the City of Poway, County of San Diego, State of California and more particularly described in Attachment No. 1 attached hereto and incorporated herein by this reference (the "Property"). The Agreement imposes cer~tain obligations and restrictions on the use of the Property for affordable housing purposes. The Agreement is available for public inspection and copying at the office of the Poway Redevelopment Agency, 13325 Civic Center Drive, Poway, California. All of the terms, conditions, provisions and covenants of the Agreement are incorporated in this Memorandum by reference as though written out at length herein, and the Agreement and this Memorandum shall be deemed to constitute a single instrument or document. 2. Purpose of Memorandum. This Memorandum is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the Agreement. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the Agreement, the terms, conditions, provisions and covenants of the Agreement shall prevail. PUBL:27555_l [ 194[ B2345.55 EXHIBIT "A" (Page 1 of 2) 06/15/95 Resolution No. 95-054 & Page 10 R-95-07 The parties have executed this Memorandum of Affordable Housing Covenants on the dates specified immediately adjacent to their respective signatures. AGENCY: Dated: dune 20 , 1995 POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic By: C~~ ATTEST: Secretary Dated: June 20 , 1995 ATTEST: City~ Clerk CITY: CITY OF POWAY, a municipal corporation By: _ Mayor ~ PUBL:27555_I [ 194[ B2345.55 EXHIBIT "A" (Page 2 of 2) 06/15/95 ATTACHMENT NO. 1 TO EXHIBIT LEGAL DESCRIPTION OF PROPERTY Resolution No.95-054 & Page 11 R-95~07 P~-KCEL ~: All of the South Half of the Southwest Quarter of section 13, Townshio 14 South, Range 2 West, San Bernardino Meridian, in the County of San Diego, State of California, according to the Official Plat thereof (including that portion of the Southwest Quarter of the Southwest Quarter of said Section 13 .known as Parcel "AT of the Map of Reversion to Acreage of a portion of RUSS EST&TES UNIT NO. 2, according to Map thereof No. 5027, filed in the Office of the County Recorder of San Diego County, August 30, !962. EXCEPTING TEEREFROM that portion of the Southeast Quarter of the Southwest Quarter of section 13, lying Northerly and Northwesterly of the following described line: COMiw~NCiNG at the Southeast corner of the Southeast Quarter of the Northeast Quarter of the Southwest Quarter of Section 13; thence along the Easterly line of said Southwest Quarter, North 01° 54' 40" East, 366.45 feet to the center line of the Poway Creek Channel as located in Mmrch, !971; thence along said center line as fc!!ows: South 89: 52' 00" West, 115.28 feet to the beginning of a tangent 115.28 foot radius curve, concave Southeasterly; Southwesterly along the arc of said curve through a central angle of 44° 38' 02" a distance of 155.80 feet and tangent to said curve South 45° 13' 58" West, 213.31 feet to the Westerly line of the Easterly 400.00 feet of said Southeast Quarter of the Northeast Quarter of the Southwest Quarter and being the TRUE POINT OF BEGINNING; thence continuing along said center line as follows: South 45° 13' 58" West, 466.38 feet to the beginning of a tangent 250.00 foot radius curve, concave Northwesterly; Southwesterly along the arc of said curve through a central angle of 44° 38' 02", a distance of 194.75 feet and tangent to said curve South 89° 52' 00" West 443.00 feet to the Westerly line of the Southeast Quarter of the Southwest Quarter of Section !3. ALSO EXCEPTING THEREFROM that portion of the Southeast Quarter of the Southwest Quarter of Section !3, Township 14 South, Range 2 West, San Bernardino Meridian, in the County of San Diego, State of California, according to the Official Plat thereof lying Southeasterly of the center line of Road Survey No. 1587-3 as described in deed to County of San Diego, recorded August 24, 1971 as File No. 189667 of Official Records. ALSO ~XCEPTING THEREFROM that portion conveyed to the County of San Diego by deed recorded April 13, 1976 as File No. 76-108156 of Official Records, described as follows: BEGI~N-NING at a 3/4 inch iron pipe marking the Northeast corner of said Southwest Quarter of the Southwest Quarter of Section 13, according to Record of Survey Map No. 4195; thence along the Northerly line of said Southwest Quarter of the Southwest Quarter, North 89° 09' 25' West, 1,338.34 feet to the Northwest corner of said Southwest Quarter of the Southwest Quarter; thence South 00° 49' 00" West, 868.18 feet along the Westerly line of said Section 13; thence leaving said Westerly line, North 77: 40' 53" East, 17.97 feet to the beginning of a tangent 227.00 foot radius curve, concave Northwesterly; thence Northeasterly along the arc of said curve, through a central angle of 41° 10' 53", a distance of 163.16 ATTACHMENT NO. 1TOEXHIBIT"A" (Page 1 of 2) Resolution No. 95-054 & Page 12 R-95-07 feet; thence tangent to said curve, North 36° 30' 00" East, 20.31 feet to the begip~ning of a tangent 73.00 foot radius curve, con~ave Southeasterly; thence Northeasterly along the arc of said curve, through a central angle of 30° 04' 00', a distance of 38.31 feet; thence tangent to said cu~ze, North 66° 34' 00" East, 871.70 feet to the beginning of a tangent 373.00 foot radius curve, concave Southeasterly; thence Northeasterly along the arc of said curve, through a central angle of 23° 18' 00" a distance of 151.68 feet; thence tangent to said curve, North 89° 52' 00" East, 20!.86 feet to a point on the Easterly line of said Southwest Quarter of the Southwest Quarter of Section 13; thence North 01° 21' 50" East, along said Easterly line, 340.14 feet, more or less, to the Point of Beginning. PARCEL 2: An easement and right of way for public road purposes over and across the Westerly 40.00 feet of the Northwest Quarter of the Southeast Quarter and the Westerly 40.00 feet of the Northwest Quarter of the Southwest Quarter of the Southeast Quarter of section 13, Township 14 South, Range 2 West, San Bernardino Meridian, in the County of San Diego, State of California, according tO'Official Plat thereof. ATTACHMENT NO. 1TOEXHIBIT"A" (Page 2 of 2)