HomeMy WebLinkAboutCT 97-10; Poinsettia Commons LLC; 2007-0369346; Affordable Housing Agreement/ReleaseDOC# 2007-0369346
RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn.: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
MAY 31,2007 4:14 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GRLGORY J. SMITH. COUNTY RECORDERFEES: nonPAGES- in
(Space above for Recorder 's Use)
AFFORDABLE HOUSING AGREEMENT
IMPOSING RESTRICTIONS ON REAL PROPERTY
This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON
REAL PROPERTY ("Agreement"), entered into this £2n& day of MAy _ , 2007,
by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as
the "City"), and Poinsettia Commons LLC., a Delaware limited liability company (hereinafter
referred to as the "Developer"), is made with reference to the following:
A. Developer is the owner of certain real property in the City of Carlsbad, in the
County of San Diego, California (hereinafter referred to as the "Subject Property") described in
"Attachment A", which is attached hereto and incorporated herein by this reference.
B. For the purposes of this Agreement, Developer currently intends to construct a
total of seventy-eight (78) multi-family residential units, along with certain commercial retail
uses, (hereinafter referred to as the "Development") on the Subject Property. The City has
approved a Tentative Tract Map 04-1 1, Site Development Plan 04-09, Conditional Use Permit
04-15, and Coastal Development Permit CDP 04-26 for the Development. The City issued the
approval subject to certain Conditions of Approval, including a condition requiring at least
fifteen percent (15%) of the units in the Development to be affordable housing as required by the
City's Inclusionary Housing Ordinance (CMC Chapter 21 .85).
C. The Development will consist of seventy-eight (78) multi-family residential units.
The Development shall include a minimum of twelve (12) affordable multi-family housing units.
Developer intends to meet the inclusionary housing condition for the Development by
constructing, or causing to be constructed, a minimum of twelve (12) multi-family apartment
units and as further described in "Attachment B."
D. Developer is required by the Conditions of Approval to enter into an Affordable
Housing Agreement as required and with the content specified by the City's Inclusionary
Housing Ordinance, Carlsbad Municipal Code ("CMC") Chapter 21.85). This Agreement is that
Affordable Housing Agreement pursuant to Section 21.85.140 of CMC Chapter 21.85, and shall
be executed and recorded prior to the approval of the final map for the Subject Property.
Approved by City Attorney: March 22, 2007
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Satisfaction of Affordable Housing Obligation and Conditions of Approval. The
Conditions of Approval of Tentative Tract Map CT 04-11, Site Development Plan SDP 04-09,
and Coastal Development Permit CDP 04-26, and the requirements of the City's Inclusionary
Housing Ordinance (CMC Chapter 21.85) shall not be satisfied unless twelve (12) apartment
units of the Development are constructed for the purpose of providing housing to be affordable
to lower-income households (the "Affordable Multi-family Units"), according to the schedule
and terms contained herein. A total of sixty-six (66) market rate units and at least twelve (12)
Affordable Multi-family units may be constructed with approval of this Agreement.
2. Number and Type of Affordable Units. As a condition to the satisfaction of
Developer's affordable housing requirements for the Development, Developer shall construct, or
cause to be constructed, on the Subject Property at least twelve (12) Affordable Multi-family
Units.
3. Terms Governing Provision of Affordable Multi-family Units.
3.1 Location of Affordable Multi-family Units. Not less than twelve (12)
Affordable Multi-family Units shall be constructed within Building 1 of the Development.
3.2 Size and Bedroom Count. The Affordable Multi-family Apartment Units
shall include one bedroom units with the square footage indicated in "Attachment B" to this
Agreement.
3.3 Affordability Requirements. The Affordable Units shall be available to
households with incomes not exceeding 80% of the median income for San Diego County,
adjusted for actual household size. Monthly Rents of the Affordable Units shall not exceed
1/12th of 30% of 70% of median household income for San Diego County, adjusted for assumed
household size appropriate for the unit. For purposes of this Agreement, "Rent" shall include a
utility allowance as established and adopted by the City of Carlsbad Housing Authority, as well
as all required monthly payments made by the tenant to the lessor in connection with use and
occupancy of a housing unit and land and facilities associated therewith, including any separately
charged fees, utility charges, or service charges assessed by the lessor and payable by the tenant
(but not including fees and charges resulting from any default by the tenant or damage caused by
the tenant, or fees or charges paid by the tenant to third party utilities or other providers).
Median income figures shall be those published annually by the United States Department of
Housing and Urban Development. For purposes of this agreement, the "assumed household size"
for each Affordable Multi-Family Unit shall be 1.5 persons. With respect to each Affordable
Multi-Family Unit, the affordability requirements of this Section 3.3 shall continue for fifty-five
(55) years from the date of issuance of a Certificate of Occupancy by the City for such unit or
another comparable unit based upon substitution provisions pursuant to the Regulatory
Agreement. The affordability requirements of this Section 3.3 shall be set forth in the
Regulatory Agreement between the Developer or its successors and the City, provided for below,
which shall supersede this Agreement upon recordation of the Regulatory Agreement.
Approved by City Attorney: March 22,2007
3.4 Schedule for Developing Affordable Multi-family Apartment Units.
Construction on the Affordable Multi-family Units on the eastern portion of the site shall be
initiated after construction has been completed on the market rate multi-family units, commercial
retail and underground parking on the western parcel of the subject property. As set forth in
Planning Resolution No. 5806, occupancy for up to 28 live-work units may be obtained prior to
issuance of a building permit for Building 1, which includes the Affordable Multi-family Units
and the daycare facility. After the building permit for Building 1 is issued, occupancy for the
remaining 23 live-work units may be obtained. Occupancy for the 15 condominium loft units
may not be obtained until construction has commenced and the foundations are in place for
Building 1.
4. City Approval of Documents. The following documents, to be approved in
writing by the City, shall be used in connection with the rental of Affordable Multi-family Units.
4.1 A marketing plan consistent with the terms of this Agreement, establishing
the process for seeking, selecting and determining the eligibility of tenants of the Affordable
Units.
4.2 Form of Rental Agreement.
4.3 A Property Management Plan.
4.4 A Form of Regulatory Agreement between the Developer of the affordable
project for the Development and City (the "Regulatory Agreement"), following a format
designated by City.
5. Compliance Reports. Following completion of construction of any of the
Affordable Multi-family Units, a Compliance Report meeting the requirements of Section
21.85.140 of the Inclusionary Ordinance, verifying compliance of all completed Affordable
Multi-family Units with the terms of this Agreement and certified as correct by a third-party,
shall be submitted annually to the Housing and Redevelopment Director, commencing on the
first Report Date that is twelve months from the completion of construction of the Affordable
Multi-family Units. If similar reports on some or all of the Affordable Multi-family Units are
required for regulatory compliance with other financing programs, those reports may be deemed
satisfactory for the purpose of this section by the Housing and Redevelopment Director, with
respect to the portion of the Affordable Multi-family Units covered by such reports, provided
that copies are provided on an annual basis to the Housing and Redevelopment Director with a
third party certification addressed to the City.
6. Release of Subject Property From Agreement. The covenants and conditions
herein contained shall apply to and bind Developer and its heirs, executors, administrators,
successors, transferees, and assignees having or acquiring any right, title or interest in or to any
part of the Subject Property and shall run with and burden such portions of the Subject Property
until released in accordance with this Section 6 or Section 12 hereof. Until portions of the
Subject Property are released from the burdens of this Agreement pursuant to this Section 6, the
Approved by City Attorney: March 22,2007
Developer shall expressly make the conditions and covenants contained in this Agreement a part
of any deed or other instrument conveying any interest in such property. Notwithstanding
anything to the contrary set forth in this Agreement, individual purchasers of single-family or
multi-family units pursuant to an approved public report in compliance with the California
Subdivided Lands Act, and mortgage lenders holding deeds of trust on such individual units after
sale to such purchasers, shall not be subject to the terms of this Agreement; and the terms of this
Agreement shall be of no further force or effect with respect to such completed unit on the date
of the recordation of a deed to the individual purchaser. Upon 55 years from the date of issuance
of certificates of occupancy for all of the Affordable Multi-family Units, the entire Subject
Property shall be released from the burdens of this Agreement, except such release shall not be
construed to release Developer from any and all personal covenants of Developer as provided in
Section 9 herein. The burdens of this Agreement shall remain in full force and effect and
recorded against the Development for the 55-year duration of this Agreement..
7. Default. Failure of the Developer to cure any default in the Developer's
obligations under the terms of this Agreement within ninety (90) days after the delivery of a
notice of default from the City (or where the default is of the nature which cannot be cured
within such ninety (90) day period, the failure of the Developer to commence to cure such
default within the ninety (90) day period or the Developer's failure to proceed diligently to
complete the cure of such a default within a reasonable time period but in no event not greater
than 180 days) will constitute a failure to satisfy the Conditions of Approval with respect to the
Subject Property and the requirements of Chapter 21.85 of the CMC and the City may exercise
any and all remedies available to it with respect to the Developer's failure to satisfy the
Conditions of Approval and Chapter 21.85 of the CMC, including but not limited to, the
withholding of further building permits for the market rate units within the Development until
such cure is completed.
8. Appointment of Other Agencies. At its sole discretion, the City may designate,
appoint or contract with any other public agency, for-profit or non-profit organization to perform
the City's obligations under this Agreement.
9. Hold Harmless. Developer and its heirs, executors, administrators, successors,
transferees, and assignees having or acquiring any right, title or interest in or to any part of the
Development will indemnify and hold harmless (without limit as to amount) City and its elected
officials, officers, employees and agents in their official capacity (hereinafter collectively
referred to as "Indemnitees"), and any of them, from and against all loss, all risk of loss and all
damage (including expense) sustained or incurred because of or by reason of any and all claims,
demands, suits, actions, judgments and executions for damages of any and every kind and by
whomever and whenever made or obtained, allegedly caused by, arising out of or relating in any
manner to Developer's performance or non-performance under this Agreement, and shall protect
and defend Indemnitees, and any of them with respect thereto. The provisions of this section
shall survive expiration or other termination of this Agreement or any release of part or all of the
Property from the burdens of this Agreement, and the provisions of this Section 9 shall remain in
full force and effect.
Approved by City Attorney: March 22,2007
10. Notices. All notices required pursuant to this Agreement shall be in writing and
may be given by personal delivery or by registered or certified mail, return receipt requested, to
the party to receive such notice at the addresses set forth below:
TO THE CITY OF CARLSBAD:
CITY OF CARLSBAD
Housing and Redevelopment Department
Attn: Housing and Redevelopment Director
2965 Roosevelt Street, Suite B
Carlsbad, California 92008-2389
TO THE DEVELOPER:
Poinsettia Commons LLC
949 South Coast Drive, Suite 400
Costa Mesa, Ca. 92626
Attn: Brad C. Perozzi
Any party may change the address to which notices are to be sent by notifying the other
parties of the new address, in the manner set forth above.
11. Integrated Agreement. This Agreement constitutes the entire Agreement between
the parties and no modification hereof shall be binding unless reduced to writing and signed by
the parties hereto.
12. Duration of Agreement. This Agreement shall remain in effect for 55 years
following the date certificates of occupancy have been issued for all Affordable Multi-family
Units. This Agreement, and any section, subsection, or covenant contained herein, may be
amended only upon the written consent of Developer and the Community Development Director.
13. Recording of Agreement. The parties hereto shall cause this Agreement to be
recorded against Subject Property in the official Records of the County of San Diego.
14. Severabilitv. In the event any limitation, condition, restriction, covenant, or
provision contained in this Agreement is to be held invalid, void or unenforceable by any court
of competent jurisdiction, the remaining portions of this Agreement shall nevertheless, be and
remain in full force and effect
Approved by City Attorney: March 22,2007
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
DEVELOPER CITY
Poinsettia Commons LLC, a Delaware
Limited Liability Company CITY OF CARLSBAD,
By: SC 102 Poinsettia Limited Partnership, A Municipal Corporation
a Delaware Limited Partnership, its
sole member /) ^0 * I * ft
By: TCR Southern California III, Inc. a By: O</Z-?^/&^ <*. r^f^x-^
Texas Corporation, its general Sandra L. Holder
Community Development Director
Name:
By:
Name: HSheSl LaJrf
Title:^u,
If required by City, proper notarial acknowledgment of execution by Developer must be
attached. If a Corporation. Agreement must be signed by one corporate officer from each of the
following two groups.
*Group A. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM
By:
/XfANE'MOBALDI
ASSISTANT CITY ATTORNEY
Approved by City Attorney: March 22, 2007
California Ail-Purpose Acknowledgment
State of California
County of Orange
On April 16. 2007 before me, Maria C. Mendivil. Notary Public, personally appeared
Brad Perozzi. personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacities, and
that by his signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
MARWCMENDIVIL
Commission#1421 SIS
Notary Pubfc-Cotton*,
Orange County
My comm. Expires Jun 2.2007|
California Ail-Purpose Acknowledgment
State of California
County of Orange
On April 16, 2007 before me, Maria C. Mendivil. Notary Public, personally appeared
Robert LaFever, personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacities, and
that by his signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
MARIA C.MENDML
Commission #1421813
Notary Public • California
Orange County
My Comm. Expires Jun 2.2007
ATTACHMENT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Lot 5 of Carlsbad Tract No. 97-10, Poinsettia Properties, in the City of Carlsbad, County of
San Diego, State of California, according to the Map thereof No. 13785, filed in the Office
of the County Recorder of San Diego County on May 21,1999.
Approved by City Attorney: March 22,2007
ATTACHMENT B
LOCATION. SIZE. AND BEDROOM COUNT
OF AFFORDABLE UNITS
Twelve Affordable Multi-family Units will be located above commercial uses in the building on
the east side of Embarcadero Lane (Building 1). See Site Development Plan (SDP 04-09). These
12 stacked flat units will each contain no less than 825 square feet of living space. Each of the
units is designed with one (1) bedroom and one (1) bathroom within an open floor plan for
maximum flexibility.
Approved by City Attorney: March 22, 2007