HomeMy WebLinkAboutMP 175D; Kaiza Poinsettia Corporation; 1995-0422825; Affordable Housing Agreement/ReleaseRecordinq Requested by:
City of Carlsbad
When Recorded Mail to:
City of Carlsbad City of Carlsbad City Clerk's Office City Clerk's Office Attn: Attn: City Clerk City Clerk 1200 Carlsbad Village Drive 1200 Carlsbad Village Drive Carlsbad, California 92008 Carlsbad, California 92008
534 DFFICM~ RECOROS %ti i.iiEFD COUtirY REECORDER’S OFFICE
AFFORDABLE HOUSING MITIGATION AGREEMENT
THIS AFFORDABLE HOUSING MITIGATION AGREEMENT ("Agreement") is entered into as of SCC’rerrr [3u P-i 1995, by and among the CITY OF CARLSBAD, a municipal corporat\on ("City") and KAIZA POINSETTIA CORPORATION, a California Corporation ("Kaiza"), with regard to the following facts:
A. This is an affordable housing mitigation agreement entered into pursuant to Chapter 21.85 of the Carlsbad Municipal Code ("Code").
B. Chapter 21.85 and 21.86 of the Code establish requirements for providing housing that is restricted to and affordable by lower-income households for all approved residential units. These requirements are generally referred to as "Inclusionary Housing Requirements."
C. Kaiza is the owner and developer of certain real property legally described on attached Exhibit "A" that is located in Local Facilities Management Zone 9 of City ("Kaiza Property"). The Kaiza Property is the subject of and has received all discretionary approvals from City for a Master Plan (MP-175(D)) commonly known as Poinsettia Shores Master Plan, General Plan Amendment, GPA 91-05, Local Control Plan, LCPA 91-02 and Local Facilities Management Plan, LFMP 87-09(A), as contained in City Council Resolution No. 94-29 and Ordinance No. NS-266.
D. Pursuant to Chapter 21.85 and 21.86 of the Code and the approvals and conditions referred to in Recital C above, Kaiza must provide housing units restricted to and affordable to lower-income households in an amount equal to twenty percent (20%) of the "Base Residential Units" as defined in Chapter 21.85 and 21.86 of the Code approved for developed on the Kaiza Property. It is estimated that this requirement will be ninety (90) but a final determination of the total number of affordable units required will be based on the actual maximum number of units approved for development on the
Kaiza Property.
E. Laurel Tree Investment Company, a California limited partnership ("Laurel Tree"), is the owner of certain real property legally described on attached Exhibit "B" that is located in Local Facilities Management Zone 5 of City ("Laurel Tree Apartment Property"). Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc. ("MAX!"), has acquired an option ("Option") to acquire the Laurel Tree Apartment Property and intends to develop it only with residential units that are restricted to and affordable by lower-income households in accordance with the Code. Exhibit "C" attached hereto outlines the unit mix and affordability levels of MAAC's intended development of the Laurel Tree Apartment Property.
F. Pursuant to Code Sections 21.85.110 and 21.85.120(f), City will allow a developer that owns real property that is subject to the Inclusionary Housing Requirements to participate in a Combined Inclusionary Housing Project where units are constructed and operated at an alternative development site within the same quadrant of City or contiguous quadrants if the Combined Inclusionary Housing Project is located on the quadrant boundary.
G. Both the Kaiza Property and the Laurel Tree Apartment Property are located within the Southwest Quadrant of the City, and the Laurel Tree Apartment Property generally conforms with the provisions for location criteria for affordable housing projects as described in Code Section 21.85.120.
H. Kaiza and City desire for Kaiza to meet its affordable housing obligation to City and to comply with its applicable Tentative Subdivision Map conditions with respect to the Kaiza Property by participating in the Combined Inclusionary Housing Project proposed for the Laurel Tree Apartment Property through a participation payment to MAAC for the development of that project as provided for in that certain Agreement and Escrow Instructions between Kaiza and MAAC dated as of September 13, 1995, a copy of which is attached hereto as Exhibit "D" ("MAAC Agr&ement").
NOW, THEREFORE, in consideration of the foregoing and for other valuable consideration, Kaiza and City agree as follows:
1. SATISFACTION OF RAIZA'S INCLUSIONARY HOUSING REQUIREMENTS AND TENTATIVE MAP CONDITIONS
Kaiza shall fully satisfy the Inclusionary Housing Requirements applicable to the Kaiza Property as set forth in the Code by paying to MAAC pursuant to the MAAC Agreement (or to City or its designee as hereafter provided) the "Payment" as defined in the MAAC Agreement (herein referred to as the "Participation Payment"), which pursuant to the MAAC Agreement shall be not less than One Million Eight Hundred Forty-Five Thousand Dollars ($1,845,000).
The Participation Payment represents the participation by Kaiza that is necessary to assist in the production of ninety (90) restricted housing units to meet Kaiza's inclusionary housing requirement based on the intended development of the Kaiza Property. If the actual development of housing units on the Kaiza Property results in a restricted housing obligation applicable
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thereto that is: (a) less than ninety (90) units then that difference may be retained by MAAC for MAAC to offer to third parties in accordance with Chapter 21.85 of the Code; or (b) more than ninety (90) units, then Kaiza must fully satisfy the Inclusionary Housing Requirements as to those excess units in accordance with the Code.
Kaiza shall also fully satisfy all conditions imposed by City relative to Inclusionary Housing on the Poinsettia Shores Master Plan MP-175(D) ("Conditions") by entering into this Agreement and
by fully satisfying the Inclusionary Housing Requirements applicable to the Kaiza Property in accordance with this Agreement. If Kaiza or its successor-in-interest does not perform according to the terms of this Agreement, Kaiza or its successor-in-interest will not have satisfied the Conditions of Approval of the Poinsettia Shores Master Plan (MP-175(D)), and City may use any or all remedies available to it with respect to the Kaiza Property and its failure to satisfy its Conditions of Approval.
2. ALTERNATE SATISFACTION OF OBLIGATION BY KAIZA
In the event, prior to Kaiza's payment of the Participation Payment to MAAC pursuant to the MAAC Agreement: (i) MAAC defaults under the MAAC Agreement; (ii) MAAC defaults under the Option; (iii) the Option terminates; (iv) MAAC withdraws its application to City for discretionary project approvals as to the Laurel Tree Apartment Property without refiling an applicationtherefor or City denies that application; (v) MAAC is unable to obtain a construction loan for its development of housing that meets the Inclusionary Housing Requirements on the Laurel Tree Apartment Property by June 30, 1997; (vi) the Low-Income Housing Tax Credits relating to affordable housing projects ("Tax Credits") are not allocated to MAAC for the Laurel Tree Apartment Property after no more than two attempts to receive an allocation; or (vii) MAAC does not acquire the Laurel Tree Apartment property, then Kaiza shall fully satisfy the Inclusionary Housing Requirements applicable to the Kaiza Property and the Conditions by promptly paying directly to the City or City's designee for application to the affordable housing project on that certain real property legally described on attached Exhibit "E" known as "La Terraza," a total amount ("La Terraza Payment") equal to the number of units which are Kaiza's Inclusionary Housing Requirement times an amount established by the City Council by the adoption of City Council Policy No. 58 on September 12, 1995. Said Policy established an amount per unit of $28,000 plus interest as determined by the City. The interest rate will approximate the City's earnings on its investment funds. If the MAAC Agreement terminates or any of the above events (i) through (vii) should occur, then Kaiza shall cause the security provided by Kaiza under the MAAC Agreement to be delivered to City, which City shall hold as security for Kaiza's payment obligations provided for in this Paragraph. Kaiza shall secure the difference between the amount of the security provided by Kaiza under the MAAC Agreement and the amount of the La Terraza Payment to City or City's designee with a form of security acceptable to the City. City may extend the time within which Kaiza may make the alternate payment in City's sole discretion.
. . .
3. NO FUTURE OBLIGATIONS OF KAIZA
Except as provided for in this Agreement, Kaiza shall have no responsibility or any other obligation whatsoever as to the Inclusionary Housing Requirements or the Conditions for the Kaiza Property or as to the financial agreements for the development and construction of the affordable housing project on the Laurel Tree Apartment Property or any other project or the process for obtaining discretionary approvals from City for said projects. As additional consideration for City's entry into and performance of this Agreement, Kaiza waives any right to pursue other options or provisions of Chapter 21.85 of the Code in satisfying its affordable housing obligation as to the Kaiza Property.
4. INDEMNIFICATION
Kaiza shall defend, indemnify and hold harmless City and its officers, employees and agents from any claim or liability arising out of Kaiza's actions in carrying out the terms and conditions of this Agreement except for any such actions arising out of City's sole negligence, breach of contract or willful misconduct.
5. CONTRACT ADMINISTRATOR
Kaiza and City each designate the individual listed below as its Contract Administrator, who is authorized by it to represent it in the routine administration of this Agreement. City's Contract Administrator is authorized to extend the time within which Kaiza is required to perform any provision of this Agreement, and/or waive any technical default in the performance of this Agreement. Either party may change its Contract Administrator by giving written notice of that change to the other party.
FOR CITY: City Manager
FOR KAIZA: Ms. Norika Saiga
6. BINDING EFFECT: ASSIGNMENT
This Agreement shall be binding upon Kaiza and City and their respective successors-in-interest. Kaiza shall not have the right to assign this Agreement or any interest or right hereunder without the prior written consent of City, which consent may be withheld in City's sole andabsolute discretion. Notwithstanding the foregoing, Kaiza shall not need City's consent to an assignment or other transfer that is made in connection with a transfer of the Kaiza Property occurring: (i) after Kaiza has fully satisfied the Inclusionary Housing Requirements applicable to the Kaiza Property as provided in Paragraph 1 or 3 hereof; or (ii) prior to Kaiza's payment of the Participation Payment so long as such transfer is made either to an entity that is directly or indirectly owned or controlled by Kaiza.
7. ATTORNEYS' FEES AND COSTS
In the event of any controversy, claim or dispute between or among Kaiza and City arising out of or relating to this Agreement or breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorneys' fees and costs.
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0. SEVERABILITY
In the event any limitation, condition, restriction, covenant or provision contained herein is 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.
9. NOTICES
Any notices required pursuant to this Agreement shall be in writing any may be given by personal delivery or by registered or certified mail, return receipt requested, to the party at the address set forth below. Addresses for notice may be changed by written notification thereof to the other party:
TO CITY:
City of Carlsbad Housing & Redevelopment Department Attn: Director 2965 Roosevelt Street, Suite B Carlsbad, California 92008-2389
TO KAIZA:
Kaiza Poinsettia Corporation Attn: Ms. Norika Saiga 7220 Avendia Encinas, Suite 200 Carlsbad, California 92009
10. INTEGRATED AGREEMENT
This Agreement constitutes the entire agreement among the parties and no modification hereof shall be binding unless reduced to writing and signed by all parties hereto.
11. APPLICABLE LAW
All questions pertaining to the validity and interpretation of this Agreement shall be determined in accordance with the laws of the State of California applicable to contracts made and to be performed within the State of California.
12. RBCORDATION
This Agreement shall be recorded in the Officials Records of San Diego County, California.
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IN WITNESS WHEREOF, the parties hereto have caused this 539
Agreement to be executed as of D I-3 1 , 1995.
CITY OF CARLSBAD A Municipal Corporation
CityYanager
APPROVED AS TO FORM:
RONALD R. BALL CITY ATTORNEY 7 iv* 7s.
RAIZA POINSETTIA CORPORATION,
ATTEST: -
ALETHA L. 'RAUTENKRANZ CITY CLERK
AFWKAIZA.AMD (g/95)
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STATE OF CALIFORNIA ) ) ss. COUNTY OF San Diego 1
On SeDtember 13, 1995 'before me,
Cathlvnn E. Aauirre , personally appeared
Norika Saisra personally known to me ~~~xpnrzrp~x~xx~xx~x~~x~~~x~~
x?&&s&mf~&eg to be the person(s) whose name(s) isx&ze subscribed to the within instrument and acknowledged to me that &/she/m executed the same in h&s/her-& authorized capacity(W), and that by h&s/her/$h&xr 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.
STATE OF CALIFORNIA 1
COUNTY OF &fdE60 j SS.
)
before me, , personally appeared
I personally known to me (GS grove=! tc mc cn the La&s-of to be the persone) whose name(+) is/m subscribed to the within instrument and acknowledged to me that heAh&Mey executed the same in h+/-h-e&+&r authorized capacity(*), and that by his/V 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
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STATE OF CALIFORNIA 1 ) ss. COUNTY OF 1
personally known to me (or
and that by
person(s) acted,
WITNESS my hand and official seal.
authorized
STATE OF CALIFORNIA
COUNTY OF
On before me, , personallyappeared
personally known to me proved to me on the basis of satisfactory the person(s) whose name(s) is/are to me that authorized signature(s) on the instrument which the
official seal.
EXHIBIT "A"
LEGAL DESCRIPTION OF KAIZA PROPERTY
BS\KAIU.ool
0314% (1) 148-147
EXHIBIT "A" A-l
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-. 543
ORDER NO. 1110415-22
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
LOT 79 OF CARLSBAD TRACT 85-14 PHASE 1, (BATIQUITOS LAGOON EDUCATIONAL PARK), IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA PER MAP NO. 11616, FILED IN THE OFFICE OF THE RECORDER IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ON SEPTEMBER 12, 1986, EXCEPTING THEREFROM THE FOLLOWING DESCRIBED REAL PROPERTY:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT 46 OF SAID MAP NO. 11616, SAID CORNER BEING A POINT ON THE SOUTHERLY LINE OF LOT 79; THENCE SWTH 37O10'20" WEST A DISTANCE OF 44.95 FEET; THENCE NORTH 25"41'07" WEST A DISTANCE OF 4.38 FEET; THENCE NORTH 42O21'43" EAST A DISTANCE OF 43.13 FEET To THE POINT OF BEGINNING.
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BEGINNING AT THE MOST EASTERLY CORNER OF SAID LGT 1; THENCE ALONG THE EASTERLY LINE THEREOF NORTH lO36'13" WEST 344.61 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOT 1, SOUTH lO36'13" EAST, 241.75 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 76°00'01" WEST, 150.85 FEET; THENCE SOUTH 19O47'34" NEST, 30.15 FEET; THENCE SOUTH 65O38'13" WEST, 89.60 FEET TO A POINT ON A 326.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, THE CENTER OF WHICH BEARS SOUTH 65015'48" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE 46.99 FEET THROUGH A CENTRAL ANGLE OF 8-15'34" TO A POINT OF COMPOUND CURVE ON A 826.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, THE CENTER OF WHICH BEARS SOUTH 57°00'14" WEST; THENCE NORTHWESTERLY ALGNG SAID CURVE 255.91 FEET THROUGH A CENTRAL ANGLE OF 17O45'06"; THENCE NORTH. 16O42'22" EAST, 370.32 FEET; THENCE NORTH 64*12'22* EAST, 149.00 FEET TO A POINT ON'THE NORTHEASTERLY LINE OF SAID LOT 1; THENCE SOUTHERLY ALONG SAID LINE SOUTH 2SO47'38" EAST, 422.00 FEET To THE TRUE POINTOP BEGINNING.
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546
ORDER NO. 1110420-22
LEGAL DESCRIPTION I .
THE LAND REFERRED To HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGG, AND IS DESCRIBED AS FOLLOWS:
. P~auL
THAT PORTION OF LOT 1 OF PARCEL MAP NO. 13653, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICe OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 31, 1985 AS FILE NO. 85-033316 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 1; THENCE ALONG THE EASTERLY LINE THEREOF NORTH lO36'13" WEST 344.61 FEET TO THE TRUE POINT OF BEGINNING; TS3ENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID IX)T 1, SOUTH lO36'13" EAST, 241.75 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 76°00'01" WEST, 150.85 FEET; THENCE SOUTH 19O47'34" WEST, 30.15 FEET; THENCE SOUTH 65O38'13" WEST, 89.60 FEET To A POINT ON A 326.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, THE CENTER OF WHICH BEARS SOUTH 65O15'48" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE 46.99 FEET THROUGH A CENTRAL ANGLE OF 8O15'34" TO A POINT OF COMPOUND CURVE GNA 826.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, THE CENTER OF WHICH BEARS SOUTH 57°00'14" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE 255.91 FEET THROUGH A CENTRAL ANGLE OF 17O45'06"; THENCE NORTH 16O42'22" EAST, 370.32 FEET; THENCE NORTH 64O12'22" EAST, 149.00 FEET TO A POINT ON THE NORTHEASTERLY LINE OF SAID LOT 1; THENCE SOUTHERLY ALONG SAID LINE SOUTH 25O47'38 EAST, 422.00 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL B:
THOSE PORTIONS OF LOTS 1 AND 2 AND THE STREET BETWEEN SAID LOTS AS SHOWN ON PARCEL MAP NO, 13653 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 31, 1985 AS FILE NO. 85-033316 OF OFFICIAL RECORDS, LYING EASTERLY OF THE EASTERLY AND NORTHEASTERLY LINE OF CARLSBAD TRACT 85-14 PHASE I, (BATIQUITOS LAGOON EDUCATIONAL PARK), IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGG, STATE OF CMJFORNIA, ACCORDING TO MAP THEREOF NO. 11616, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUIiA'Y, SEPTEMBER 12, 1986.
EXCEPTING THEREFROM THAT PORTION DESCRIBED As FOLLOWS: I .
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ORDER NO. 1099016-22
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
LOTS 1 THROUGH 9, INCLUSIVE, OF CARLSBAD TRACT NO. 94-01, POINSETTIA SHORES UNIT 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13181, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON JANUARY 26, 1995.
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EXHIBIT "8"
LEGAL DESCRIPTION OF LAUREL TREE APARTMENT PROPERTY
PARCEL 1:
THAT PORTION OF THE LAND DESIGNATED AS "DESCRIPTION NO. 4, 76.89 ACRES" AS SHOWN AND DELINEATED ON RECORD OF SURVEY MAP NO. 5715, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 19, 1960, ALSO BEING A PORTION OF LOT "G" OF THE RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, NOVEMBER 16, 1986, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID "DESCRIPTION NO. 4, 7689 ACRES"; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL NORTH 71O35'51" EAST 676.82 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID NORTHERLY LINE NORTH 71'35'51" EAST 560.34 FEET TO A POINT ON THE EASTERLY LINE OF SAID DESCRIPTION NO. 4; THENCE FOLLOWING ALONG SAID EASTERLY LINE, SOUTH 13O36'08" WEST 5.00 FEET TO A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 570.00 FEET; THENCE SOUTHERLY 845.02 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 84'56'26"; THENCE SOUTH 71'20'18" EAST 301.37 FEET TO A POINT OF CUSP AND THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 510.00 FEET TO WHICH A RADIAL LINE BEARS NORTH 14°00'09" EAST; THENCE LEAVING THROUGH A CENTRAL ANGLE OF 49'04'27"; THENCE SOUTH 54'55'42" WEST 354.40 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 1349.00 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3'35'45"; THENCE NORTH 38°40'03" WEST 200.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 1451.00 FEET; THENCE NORTHERLY 732.93 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 28*56'28" TO THE TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS 11.264 ACRES, MORE OR LESS.
PARCEL 2:
Easements for roadway and utility purposes over those certain strips of land designated as "60.00 foot easement and 66.00 foot easement reserved for roadway and utility purposes" as shown on Record of Survey Map No. 5715, filed in the Office of the County Recorder of San Diego County, December 19, 1960, being a portion of Lot in the County of San Diego, "G" of the Ranch0 Agua Hedionda State of California, according to Map thereof
No. 823, filed in the Office of the County Recorder of San Diego County, November 16, 1896.
Excepting from said 60.00 foot strip that portion which lies within Parcel 1.
The easements herein described are hereby declared to be appurtenant to and for the use and benefit of the present and future owners of all or any portion of "Description No. 4, 76.89 Acres" as shown and delineated on said Record of Survey Map NO. 5715.
EXHIBIT "B" B-l
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UNIT TYPE
EXHIBIT "C"
LAUREL TREE APARTMENTS UNIT MIX AND UNIT MIX AND AFFORDABILITY LEVELS
1 Bedroom
2 Bedroom
3 Bedroom
4 Bedroom
TOTAL:
RESTRICTED AND
AFFORDABLE TO HOUSEHOLDS WITH INCOMES NOT EXCEEDING NUMBER OF UNITS
27 60% of AMI*
39 60% of AMI*
45 60% of AMI*
27 60% of AMI*
138
* Area Median Income, San Diego County
EXHIBIT "C" C-l
Bs\xA12A.001
031195 (1) w-147
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EXHIBIT "0"
MAAC AGREEMENT
EXHIBIT "D" D-l
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AGREEMENT REGARDING PARTICIPATION PAYMENT
o<*)
This Agreement Regardiig Participation Payment (the “Agreement”) is made as of September
&, 1995, by and b e t ween Metropolitan Area Advisory Committee on Anti-Poverty of San Diego
County, Inc. (“MANY’) and Kaiza Poinsettia Corporation’ a California corporation, (“Kaiza”), in
consideration of the following:
RECITALS
A. Kaiza owns certain real prc,perty in the City of Carlsbad, County of San Diego,
California (the “City”), which is more particularly described on Exhibit “A” attached hereto and
incorporated herein by this reference (the “Kaiza Poinsettia Property”). Kaiza desires to build a
residential subdivision (the “Kaiza Poinsettia Development”) on the Kaiza Poinsettia Property.
B. MAAC is the optionee under that certain Amended and Restated Option Agreement
dated February 11, 1995 by and between Laurel Tree Investment, L.P., a California Limited
Partnership, as optionor, and MAAC, as optionee (the “Option Agreement”), pursuant to which
MAAC has the option to purchase certain real property located in the City, which real property is
more particularly described on Exhibit “B” attached hereto and incorporated herein by this reference
(the “Project Property”). MAAC proposes to purchase the Project Property and to develop it with
an apartment project containing at least 135 units restricted and affordable to low-income households
in accordance with Chapter 21.85 of the Carlsbad Municipal Code (the “Project”),
C. Pursuant to Chapter 21.85 of the Carlsbad Municipal Code, in connection with the
development of the Kaiza Poinsettia Property, the owner of the Kaiza Poinsettia Property must
provide a certain number of housing units restricted and affordable to lower income households
(“Restricted Units”) in the City of Carlsbad. It is anticipated that based on the size of the proposed
Kaiza Poinsettia Development, the owner of the Kaiza Poinsettia Property will be required to provide
ninety (90) Restricted Units within the City. Kaiza and the City have negotiated and intend to enter
into that certain Affordable Housing Mitigation Agreement (the “Inclusionary Agreement”) in which
the City and Kaiza (or its successor in interest or legal representative) agree that in lieu of building
such Restricted Units within the Kaiza Poinsettia Development, the owner of the Kaiza Poinsettia
Property may satisfy its inclusionary housing obligations with respect to the Kaiza Poinsettia
Development by providing certain sums specified in this Agreement (as defined below, the
“Participation Payment”) to MAAC for the development of the Project.
D. MAAC intends to form a limited partnership (the “Partnership”) of which it will be a
general partner to acquire the Project Property and to develop the Project. MAAC intends to make
the Participation Payment that it receives from Kaiza available to the Partnership either in the form
of a contribution or a loan to fI.md the acquisition of the Project Property and the development of the
Project.
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E. MAAC intends to apply to the California Tax Credit Allocation Committee (“TCAC”)
for a reservation of low-income housing tax credits (the”Tax Credits”) for the Project. The Tax
Credits will belong to the Partnership and MAAC intends to admit to the Partnership one or more
investor limited partners to whom the Tax Credits will be allocated in exchange for their participation
in the Partnership.
F. Kaiza has agreed to pay the Participation Payment to MAAC provided that MAAC
uses the Participation Payment to develop the Project.
G. MAAC and Kaiza desire to enter into this Agreement to set forth the terms and
conditions under which MAAC will receive the Participation Payment from Kaiza.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the amount and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Definitions. Capital&d terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings given to them below.
64 “Project Construction Loan” shall mean the construction loan from the
Project’s primary construction lender.
09 “Construction Loan Escrow” shah mean the escrow established to fund the
Project Construction Loan.
(4 “Construction Loan Closing Date” shall mean the date that the deed of trust
securing the Project Construction Loan is recorded in the Official Records of San Diego County,
California.
00 “Participation Payment” shall equal $1,845,000; provided, however, that such
amount is predicated on MAAC also receiving approximately $500,000 from the California Home
Fund Program or other sources for use in connection with the Project (the “HOME Fund Amount”).
If MAAC does not receive any of the HOME Fund Amount on or before the Construction Loan
Closing Date, then the Participation Payment shall be increased by $106,666 ($1,185.18 per unit
times 90 units) to $1,95 1,666. If MAAC re seives some but not all of the HOME Fund Amount by
that date, then the Participation Payment shall be increased in proportion to the amount of the deficit
(based upon the assumption that the HOME Fund Amount shall equal $500,000.00). If MAAC
receives all or any part of the HOME Fund Amount after the Construction Loan Closing Date, then
MAAC shall promptly repay ail or the applicable portion of the increased amount of the Participation
Payment to Kaiza.
69 “Letter of Credit” shalI mean the irrevocable letter of credit in favor of MAAC
as beneficiary in the amount of $1,95 1~366.00, dated September b, 1995, and issued by
a copy of which Letter of Credit is attached hereto as Exhibit
al or replacemen; thereof pursuant to Paragranhs 4(b) and/or 14 below.
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2. Receipt of Letter of Credit. MAAC hereby acknowledges receipt from Kaiza of the
original Letter of Credit. If the City Council of Carlsbad fails to approve the Inclusionary Agreement
on or before September 14, 1995, then MAAC shall promptiy return the Letter of Credit to Kaiza.
Otherwise, MAAC shall continue to hold the Letter of Credit and shall handle the Letter of Credit
in accordance with the provisions of this Agreement.
3. Deliver-v of Particination Pavrnent bv Kaiza. Upon written notice (the “Funding
Notice”) from MAAC to deposit the Participation Payment into the Construction Loan Escrow, Kaiza
shall, within fifteen (15) days after receipt of the Funding Notice, deposit the entire Participation
Payment into the Construction Loan Escrow by wire transfer, certified check or cashier’s check, with
written instructions to the escrow holder to release such funds to MAAC or the Partnership on the
Construction Loan Closing Date. AI1 interest accruing on the Participation Payment while in the
Construction Loan Escrow prior to the Construction Loan Closing Date shall accrue for the benefit
of Kaiza.
4. Application of Letter of Credit.
(a) Kaiza’s Failure to Deposit Participation Pavment into Escrow. In the event
that Kaiza fails to deposit the entire Participation Payment into the Construction Loan Escrow in the
manner and within the time set forth above, MAAC shall give Kaiza an additional written notice (the
“Default Notice”) and an additional five (5) days after Kaiza’s receipt of the Default Notice to cure
such default by depositing the entire Participation Payment into the Construction Loan Escrow by
wire transfer, cashier’s check or certified check, with written instructions to the escrow holder to
release such funds to MAAC or to the Partnership on the Construction Loan Closing Date. If Kaiza
fails to so cure such default, then MAAC shall have the right to draw down on the Letter of Credit
up to the full amount of the Participation Payment and to deposit such amount into the Construction
Loan Escrow. In such event, the fimds so deposited into the Construction Loan Escrow shall be
handled by the escrow agent in accordance with instructions from MAAC in accordance with
Paragraph 3 above. us
(W r 9 ?I Kaiza s Failure to Renew Letter of Credit. The Letter of Credit has an
expiration date of %@Q&B$& 1996. Kaiza hereby agrees and covenants to automatically renew
the Letter of Credit for periods of not less than one (1) year each, until the Letter of Credit is either
drawn upon, or replaced with cash’ all in accordance with the terms hereof No later than thirty (30)
days prior to the expiration of such Letter of Credit, Kaiza shall cause to be delivered to MAAC
evidence reasonably substantiating the fact that such Letter of Credit has been extended for at least
one more year. IfKaiza fails to cause h4AAC to be provided such evidence prior to such date, then
MAAC may, after giving five (5) days’ prior written notice to Kaiza demanding evidence of such
renewal, draw down on the Letter of Credit prior to its expiration and deposit the proceeds thereof
into the Construction Loan Escrow. Such I draw down on the Letter of Credit shall be minus any
cash previously deposited into the Construction Loan Escrow by Kaiza or by a third party on Kaiza’s
behalf provided that such previously deposited cash shall be available for release to MAAC or to the
Partnership in accordance with Paragraph 3 above. Any proceeds so deposited, up to the amount of
the Participation Payment payable hereunder (as it may be adjusted pursuant to Paragraph l(d),
above) shall be deemed to have been delivered to the Construction Loan Escrow in accordance with
3
554
the provisions of Paragraph 3 above. In the event that the proceeds of the Letter of Credit SO
deposited into the Construction Loan Escrow exceed the amount of the actual Participation Payment
payable hereunder (due to any adjustment pursuant to ParaPraph l(d) above), such excess shall be
returned to Kaiza upon the close of the Construction Loan Escrow.
5. Cash Alternative. Kaiza shall have the right at any time, to replace the Letter of Credit
by depositing the sum of $1,95 1,666.OO into the Construction Loan Escrow with instructions to the
escrow holder to release such funds to MAAC on the Construction Loan Closing Date. Such deposit
shall be made in cash or by cashier’s or certified check or by wire transfer of funds. Such deposit shall
be deemed to have been deposited to the Construction Loan Escrow in accordance with the
provisions of Paragraph 3 above. In the event that the amount of such deposit exceeds the amount
of the actual Participation Payment payable hereunder (due to any adjustment pursuant to Paragraph
&l) above), such excess shall be returned to Kaiza upon the close of the Construction Loan Escrow.
Upon receipt by the Construction Loan Escrow of $1,95 1,666.OO in accordance with the provisions
of this Paragraph 5, MAAC shall promptly return the Letter of Credit to Kaiza. All interest accruing
on such funds while in the Construction Loan Escrow prior to the Construction Loan Closing Date
shall accrue for the benefit of Kaiza.
6. Use of Funds bv MAAC. MAAC agrees that it shall use the Participation Payment
only to develop the Project, which may include the acquisition of the Project Property.
7. Default bv Kaiza. In the event that Kaiza defaults under this Agreement at any time,
MAAC shall have all rights and remedies provided to it by law or equity including without limitation
the right to seek specific performance of Kaiza’s obligations hereunder, A default by Kaiza under this
Agreement shall be deemed to have occurred if the issuing bank fails to honor the Letter of Credit
in full for any reason whatsoever except the expiration thereof in accordance with its terms.
8. Default bv M&X; Events of Termination. If: (i) MAAC defaults under this
Agreement; (ii) MAAC defaults under the Option Agreement and either (a) MAAC does not obtain
a waiver of such default fi-om the optionor under the Option Agreement, or (b) MAAC fails to cure
any such default after notice thereof corn the optionor; (iii) the Option Agreement terminates for any
reason and is not reactivated with thirty (30) days of such termination; (iv) MAAC withdraws its
application to the City for discretionary Project approvals without refiling an application therefor or
the City denies that application; (v) the Construction Loan Closing Date does not occur by June 30,
1997; (vi) MAAC is unable to secure the Tax Credits for the Project; or (vii) MAAC does not acquire
the Project Property, then MARC shall immediately return Letter Of Credit to Kaiza and this
Agreement shall automatically terminate.
9. Effect of Changes in Development of Kaiza Poinsettia Proper&. The amount of the
Participation Payment assumes that the development of the unrestricted housing units on the Kaiza
Poinsettia Property obligates Kaiza to participate in ninety (90) Restricted Units. The amount of the
Participation Payment will not increase or decrease if the actual development of unrestricted housing
units on the Kaiza Poinsettia Property results in a restricted housing obligation applicable thereto that
is more or less than ninety (90) Restricted Units. If that obligation is less that ninety (90) Restricted
Units, then, because the amount of the Partici>ation Payment is based on ninety (90) Restricted Units,
4
Kaiza will have available to it one or more Excess Restricted Units (the term “Excess Restricted
Units” as used herein means ninety (90) Restricted Units less the actual number of Restricted Units
required to be provided in connection with the development of the Kaiza Poinsettia Property) which
may be used to satis@ certain inclusionary housing obligations with respect to other residential
developments in the City, subject to the City’s approval. The rights to the Excess Restricted Units
may be retained by Kaiza for use in connection with its development of other property in the City,
or Kaiza may offer the Excess Restricted Units to MAAC for MAAC to offer to third parties in
accordance with Chapter 21.85 of the Carlsbad Municipal Code. In the event that MAAC agrees to
participate in the sale of the rights to the Excess Restricted Units to a third party, and such sale
actually occurs, MA4C shall pay Kaiza the consideration received by MARC for those units within
three (3) business days after MAAC’s receipt thereoc provided, however, that nothing contained
herein shall obligate MAAC in any manner to participate in or be responsible for the sale or offer of
the Excess Restricted Units.
10. MAAC’s Reliance on Participation Pavment. Kaiza acknowledges and agrees that
without the Participation Payment, MAAC will not have sufficient fimds to develop the Project, that
fi-om and after the date of this Agreement, MAAC will proceed in reliance on Kaiza’s agreement to
pay the Participation Payment in accordance with the terms of this Agreement and that MAAC’s
decision to acquire the Project Property and to go forward with the Project will be based in part on
such reliance. Without limiting the foregoing, Kaiza acknowledges and agrees that in MAAC’s
application to TCAC for the Tax Credits, in MAAC’s applications to the California HOME Fund
Program and to other lenders for financing the Project, and in MAAC’s presentation of the Project
to investors, MAAC intends to show the Participation Payment as a committed source of funds for
the development of the Project. Kaiza understands that the deadline for the submission of MAAC’s
application to the California HOME Fund Program is September 15, 1995.
11. Representations. Warranties and Covenants of Kaiza. Kaiza hereby represents and
warrants to and agrees with MA4C as follows:
(a) Oraanization of Kaiza. Kaiza is a corporation duly organized and existing
under the laws of the State of California’ anil has the full power and authority to enter into, deliver,
perform and carry out the terms of this Agreement. The execution and delivery of this Agreement
and the performance by Kaiza of its obligations hereunder will not violate or constitute an event of
default under the terms or provisions of any agreement, document or instrument to which Kaiza is
a party or by which Kaiza is bound.
09 Authoritv to Enter Into Agreement. All proceedings required to be taken by
or on behalf of Kaiza to authorize it to enter into this Agreement have been duly and properly taken,
and this Agreement is the valid and binding obligation of Kaiza and is enforceable against Kaiza in
accordance with its terms. Attached hereto as Exhibit “D” are the resolutions, certified by Kaiza’s
corporate president, of Kaiza’s board of directors author&g Kaiza to enter into this Agreement and
perform hereunder.
5
- Il., a-’ -
w Survival. All representations, warranties and covenants made by Kaiza in this
Agreement shall be true upon the execution of this Agreement and shall survive the payment of the
Participation Payment to MAAC.
12. Renresentations and Warranties of h&MC. MAAC hereby represents and warrants
to and agrees with Kaiza as follows:
64 Organization of MAAC. MAAC is a nonprofit corporation duly organ&d and
existing under the laws of the State of California, and has the full power and authority to enter into,
deliver, perform and carry out the terms of this Agreement. The execution and delivery of this
Agreement and the performance by h4AAC of its obligations hereunder will not violate or constitute
an event of default under the terms or provisions of any agreement, document or instrument to which
MAAC is a party or by which MAAC is bound.
(‘9 Authority to Enter Into Agreement. All proceedings required to be taken by
or on behalf of MAAC to authorize it to enter into this Agreement have been duly and properly taken,
and this Agreement is the valid and binding obligation of MAAC and is enforceable against MAAC
in accordance with its terms.
(4 Survival. All representations, warranties and covenants made by MAAC in
this Agreement shall be true upon the execution of this Agreement and shall survive the payment of
the Participation Payment to MAAC.
13. Transfer of Letter of Credit to Citv. In the event that, either by the terms of this
Agreement, or by mutual agreement entered into between MAAC and Kaiza, Kaiza’s obligation to
deliver the Participation Payment to MAAC hereunder is cancelled subsequent to the approval of the
Inclusionary Agreement by the City Council of Car&ad, then, MAAC shall promptly assign MAAC’s
beneficial interest in the Letter of Credit to the City; provided, however, that all costs related to such
assignment, including without limitation’ any transfer fees charged by the issuer of the Letter of
Credit, shall be paid by Kaiza.
14. Binding Effect; Assignment. This Agreement shall be binding upon the parties hereto
and their respective heirs, representatives, transferees, successors and assigns. Kaiza shall not have
the right to assign this Agreement or any interest or right hereunder or under the Construction Loan
Escrow without the prior written consent of MAAC, which consent shall not unreasonably be
withheld. Notwithstanding the foregoing, Kaiza shall not need MAAC’s consent to an assignment
or other transfer that is made in connection with a transfer of the Kaiza Poinsettia Property by Kaiza
SO long as (i) such transfer is made either to: (a) an entity that is directly or indirectly owned or
controlled by Kaiza, or (b) a third party that has financial capability that is reasonably equivalent to
or greater than Kaiza’s current financial capability (provided that prior to any such transfer Kaiza shall
cause MAAC to receive reasonable evidence substantiating such financial capability), (ii) any such
transferee assumes all of the obligations and liabilities of Kaiza under this Agreement, and (iii) any
such transferee, concurrently with its acquisition of the Kaiza Poinsettia Property, delivers to A&MC
a Letter of Credit issued by a commercial bank acceptable to MAAC in the same form and for the
same amount as the Letter of Credit attached hereto as Exhibit “C”.
6
557
15. Notices. All notices requires or permitted to be given hereunder shall also be given
to Laurel Tree Investment, L.P., shall be in writing and shall be deemed given upon (a) personal
service or delivery by messenger or courier, (b) on the date shown on the return receipt as the date
of first attempted delivery, following deposit in the United States certified mail, postage prepaid,
return receipt requested, (c) on the date shown on the courier’s records as the date of first attempted
delivery, following deposit with a reputable overnight courier or service, or (d) facsimile transmission
(confirmation received), provided a hard copy of such transmission shall be thereafter delivered by
one of the methods described in the foregoing (a) through (c). The addresses of the respective
parties are as set forth below or such other addresses and to such other persons as the parties may
hereafter designate by written notice to the other parties hereto:
To Kaiza: Kaiza Poinsettia Corporation
7220 Avenida Encinas, Suite 200
Carlsbad, California 92009
Attn: Noriko Saiga
Douglas M. Avis
Telephone: (619)931-9100
Fax No.: (619)931-1946
copy to: Seltzer, Caplan, Wilkins & McMahon
2 100 Symphony Towers
750 “B” Street
San Diego, CA 92 10 1
Attn: Robert Caplan
Telephone: (619)685-3003
Fax No. : (619)685-3100
To MAAC: MAAC Project
140 West 16th Street
National City, California 91950
Attn: Roger Cazares
Telephone: (6 19)474-223 2
Fax No. : (619)474-5035
copy to: Catellus Development Corporation
1262 Kettner Boulevard
San Diego, CA 92 10 1
Attn: Steve Kuptz
Telephone: (619)23 l-3602
Fax No. : (6 19)696-9093
7
IIS,, .-,
copy to: Riordan & McKenzie
300 S. Grand Avenue, 29th Floor
Los Angeles, CA 90~171
Attn: Lance Bocarsly, Esq.
Telephone: (2 13)229-8454
Fax No.: (213)229-8550
To Laurel Tree: Laurel Tree Investments, L.P.
c/o Spiers Enterprises
23 Corporate Plaza, Suite 139
Newport Beach’ CA 92660
Attn: Dwight Spiers
Telephone: (7 14)644-57 18
Fax No. : (714)644-5714
copy to: Rutan & Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa’ CA 92626
Attn: Anne Lanphar, Esq.
Telephone: (714)641-3450
Fax No.: (714)546-9035
16. Counterparts. This Agreement may be executed in several counterparts, and all SO
executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties
are not signatories to the original or the same counterpart.
17. Time of Essence. Time is of the essence of this Agreement.
18. Merger ofPrior Agreements. This Agreement supersedes any prior agreement, oral
or written, and contains the entire agreement between the parties pertaining to the subject matter
hereof
19. Attornev’s Fees; Governing Law; Headings. The prevailing party in an action or
proceeding between the parties hereto with respect to this Agreement and the transactions
contemplated hereby shall be entitled to have and recover all costs, expenses and reasonable attorneys’
fees incurred in connection therewith, including any such fees and costs incurred upon any appeals.
This Agreement shall be interpreted in accordance with the laws of the State of California. The
paragraph headings of this Agreement are for convenience only and are not to be used in the
interpretation of this Agreement.
558
a
h -
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first written
above.
MAAC:
METROPOLITAN AREA ADVISORY
COMMITTEE ON ANTI-POVERTY OF SAN
DIEGO COUNTY, INC., a California
nonprofit corporation
By:
Name:
Title:
By:
Name:
Title:
9
EXHIBIT “A”
(Legal Description of Kaiza Poinsettia Property)
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA’
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
THAT PORTION OF LOT 1 OF PARCEL NO. 13653, IN THE CITY OF CARLSBAD, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA’ FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JANUARY 3 1, 1985 AS FILE NO. 85-033316 OF
OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 1; THENCE ALONG THE
EASTERLY LINE THEREOF NORTH 1036’13” WEST 344.61 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOT 1,
SOUTH 1036’13” EAST, 241.75 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH
76000’01” WEST, 150.85 FEET; THENCE SOUTH 19047’34” WEST, 30.15 FEET; THENCE
SOUTH 65038’13” WEST, 89.60 FEET TO A POINT ON A 326.00 FOOT R4DIUS CURVE,
CONCAVE SOUTHWESTERLY ALONG SAID CURVE 46.99 FEET THROUGH A CENTRAL
ANGLE OF 8015’34” TO A POINT OF COMPOUND CURVE ON A 826.00 FOOT RADIUS
CURVE, CONCAVE SOUTHWESTERLY, THE CENTER OF WHICH BEARS SOUTH
57000’14” WEST; THENCE NORTHWESTERLY ALONG SAID CURVE 255.91 FEET
THROUGH A CENTRAL ANGLE OF 17045’06”; THENCE NORTH 16042’22” EAST, 370.32
FEET; THENCE NORTH 64012’22” EAST, 149.00 FEET TO A POINT ON THE
NORTHEASTERLY LINE OF SAID LOT 1; THENCE SOUTHERLY ALONG SAID LINE
SOUTH 25047’38” EAST, 422.00 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL B:
THOSE PORTIONS OF LOTS 1 AND 2 AND THE STREET BETWEEN SAID LOTS AS
SHOWN ON PARCEL MAP NO. 13653 IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, JANUARY 31, 1985 AS FILE NO. 85-033316 OF OFFICIAL
RECORDS, LYING EASTERLY OF THE EASTERLY AND NORTHEASTERLY LINE OF
CARLSBAD TRACT 85-14 PHASE I, (BATIQUITOS LAGOON EDUCATIONAL PARK), IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA’
ACCORDING TO MAP THEREOF NO. 11616, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 12,1986.
10
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 1; THENCE ALONG THE
EASTERLY LINE THEREOF NORTH 1016’13” WEST 344.61 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOT 1,
SOUTH 1036’13” EAST, 241.75 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH
76000’01” WEST, 150.85 FEET; THENCE SOUTH 19047’34” WEST, 30.15 FEET; THENCE
SOUTH 65 038’13” WEST, 89.60 FEET TO A POINT ON A 326.00 FOOT RADIUS CURVE,
CONCAVE SOUTHWE STERLY, THE CENTER OF WHICH BEARS SOUTH 650 15’48” WEST;
THENCE NORTHWESTERLY ALONG SAID CURVE 46.99 FEET THROUGH A CENTRAL
ANGLE OF 80 15’34” TO A POINT OF COMPOUND CURVE ON A 826.00 FOOT RADIUS
CURVE, CONCAVE SOUTHWESTERLY, THE CENTER OF WHICH BEARS SOUTH
57000’14” WEST, THENCE NORTHWESTERLY ALONG SAID CURVE 255.91 FEET
THROUGH A CENTRAL ANGLE OF 17045’06”; THENCE NORTH 16042’22” EAST, 370.32
FEET; THENCE NORTH 64012’22” EAST, 149.00 FEET TO A POINT ON THE
NORTHEASTERLY LINE OF SAID LOT 1; THENCE SOUTHERLY ALGNG SAID LINE
SOUTH 25047’38” EAST, 422.00 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL C:
LOT 79 OF CARLSBAD TRACT 85-14 PHASE 1, (BATIQUITOS LAGOON EDUCATIONAL
PARR), IN THE CITY OF CARLSBAD, CUUNTY OF SAN DIEGO, STATE OF CALIFORNIA
PER MAP NO. 11616, FILED IN THE OFFICE OF THE RECORDER IN THE COUNTY OF
SAN DIEGQ, STATE OF CALIFORNIA ON SEPTEMBER 12, 1986, EXCEPTING
THEREFROM THE FOLLOWING DESCRIBED REAL PROPERTY:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT 46 OF SAID MAP NO.
11616, SAID CORNER BEING A POINT ON THE SOUTHERLY LINE OF LOT 79; THENCE
SOUTH 370 10’20” WEST ADISTANCE OF 44.95 FEET, THENCE NORTH 25041’07” WEST
A DISTANCE OF 4.38 FEET; THENCE NORTH 42021’43” EAST A DISTANCE OF 43.13 FEET
TO THE POINT OF BEGINNING.
11
EXHIBIT “B”
(Legal Description of Project Property)
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 15663, IN THE CITY OF CARLSBAD, COUNTY OF SAN
DLEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, MAY 5, 1989 AS FILE NO. 89-239677 OF OFFICIAL RECORDS.
PARCEL B:
EASEMENTS FOR ROADWAY AND UTILITY PURPOSES OVER THOSE CERTAIN STRIPS
OF LAND DESIGNATED AS “60.00 FOOT EASEMENT AND 66.00 FOOT EASEMENT
RESERVED FOR ROADWAY AND UTILITY PURPOSES”, AS SHOWN ON RECORD OF
SURVEY MAP NO. 5715, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, DECEMBER 19,1960, BEING A PORTION OF LOT “G” OF THE RANCH0
AGUA HEDIONDA, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16,1896.
EXCEPTING FROM SAID 60.00 FOOT STRIP THAT PORTION WHICH LIES WITHIN
PARCEL A ABOVE.
THE EASEMENTS HEREIN DESCRIBED ARE HEREBY DECLARED TO BE
APPURTENANT TO AND FOR THE USE AND BENEFIT OF THE PRESENT AND FUTURE
OWNERS OF ALL OR ANY PORTION OF “DESCRIPTION NO. 4,76.89 ACRES” AS SHOWN
AND DELINEATED ON SAID RECORD OF SURVEY MAP NO. 5715.
12
YnldH (*I l,‘:ijl I-HUFl ta7+“:, 27747‘ rHbt.d
++++++ HDD-0: OUTDOING [DELIVERED3 SEP 15’*95 16~47 ++*+++
TO=liDD:23&7~~~190+&72019 VIRb23472033 RRB=a720190 SUflITLR
13 164S-3cJY265 VII7 RTT
4720190 SlJHXTLR
HYOSPH 578012
TO SUtlITOtlO PRNK OF COLIFORNIFI, LOS FIMjELES
FM HYOGO l&lNH HOBE. SEPT. 13.1995
TEST m (TESTED FIHOUNT FOR USDI. 951.666.00)
PLS RDVISE THROUGH VR Al0 ‘Q’ STREET. SAN D!EGO, CFI 92101.
IRXEVUI;H@LE STRNDRY LETTER OF CREDIT NIJtll3ER158-527-00001
PLI+CE RND DATE OF ISSUEI
KOFE, HYOEO. JAPFVJ ON SEPTEMBER 13,199is
563
IWIUIJNT I UP ‘I’0 ONE flILLION NINE HUNDRED FIFTY OM THOUSRND .SIX HUNDRED
SIXTY-SIX l!.S.DOLUIRS <USD1.951,666.00>
APPLICFINTt
KaJLA POINSETTIFl CORPORATION
7120 FIVENIDR ENCINAS SUITE 200,SFIN DIEM), CFI 92009
PENEFICIFIRY:
METROPOLlTfAN ARER RDVISORY COfiHITTEE ON FINTI-POVERTY OF SQN DIEGO
cOUuTY, INC.
l&O WEST 16TH STREET NRTIONRL CITY, CR, ‘91950 :
WE HEREBY FIUTHOAIZE BENEFICIARY TO DRRU ON THE liYOO0 PFINK.LTD.,
I-CHOtlE SRNNOMIYCI-MO CHUO-KU KOBE JRPRN FIT SIGHT FOR THE
&lNT OF RPPLICRNT FIN ®RTE FhUNT’EQUFIL’TO UP TO bNE MILLION
NINE UUNDRED FIFTY Ok THOUSRND SIX HUNDREd SIXTY-SIX U.S.DOLLRRS
<USDl,951,66&.00> RVRILFIBLE UPON PRESENWTION, nf OUR RDDRESS EIBOVE,
OF RENEFICIRRY’S DRRFT RT SIGHT, TO BE RCCOMPRNIED PY URITTEN
NOTIFICRTION BY BENEFICIRRY, PUflPORTEDhY BIGNED Bf F1 DULY FIUTHORIZED
OFFICER THEREOF CERTIFYING THRT (I)THEm EXISTS 6l URXTTEN. EXECUTED
RND DELIVERED QGREEtlENf REGRRDING PClRTICIPRTION PCIYMENT BETUEEN
PENEFICIFIRY OR ITS SUCMS50R.RND WIZR CORPORRTIbN. OR ITS SUCCESSOR,
C’ PRRTY 0’ ), FIND (II)ON OR BEFORE SEPTEtlEER 14.1998, THE CITY COUNCIL
OF CFIRLSIIT-IIJ RPPROVED THE QFFORUABLE HOUSINO tiITlf%TION RGREE@ENT
BETWEEN THE CITY OF CRRLSBRD CIND PRRTY B,tWD <III>PFIRTY B IS IN
DEFRULT OF ITS OPLIOATIONS UNDER THE RGREEmNT REGRRDING
PRRTICIPC)TION PRYtlENT,THQT DEFRULT IS CONTINUING.RND FIVE(S) OR HORE
DUYS HAVE ELAPSED SINCE PRRTY P RECE1VE.D URITTEN NOTICE OF THRT
DEFFIULT FROM BENEFICXRRY. ND (IV) OF THE EXFICT QMOUNT TO RE DRRWN
UNDER THIS LETTER OF CREDIT, ‘NOT TO EXCEED ONE tIlLLION NINE HUNDRED
FIFTY ONE THOUSrWD SIX HUNDRED SIXTY-SIX U.S.DOLLRRS
~USl~1,951.666.00>, RND (VI THRT THE EXRCT FIMOUNT TO BE DRRUN UNDER
THIS LETTER OF CREDIT IS THE RVOUNT RU?iORIZED PLk3JFINT TO THE
RGREEMENT REOFll?DING PFIRTICIPATIDN PFIYHENT.
DRQFT UNDER TCIIS LETTER OF CREDIT MUST BELIR THE CLCIUSE ‘DRBWN UNDER
‘THE HYOGO BFINK,LTD. LETTER OF CREDIT NO.SB-527-00001, DRTED SEPTEMBER
13.1993’ DRFIFTS UNDER THIS LETTER OF CREDIT, RCCOflPRNIED BY THE APOVE
DESCRIHED DOC:lJtiENT. tlUST BE PRESENTED ND LRTER THF)N 12rOOP. W. E. 5. T.,
ON AUGUST 7, 1996.
THIS L.E’TTER OF CREf?IT WILL BE TRRNSFERRED IN FULL. FY THE ISSUING
PFlNK PRLJVIDED Tt&!T YOU DELIVER TO US OUR URITTEN FULL TRRNSFEA FORM
(RTTRCtIED) THE ORIGINRL LETTER OF CREDIT TOGETHER. WITH RNY RMENDMENTS
MUST PE RETURNED TO US UITH THE COtlPLETED TRCINSFER FORtI RND PRYflENT
OF OIJR CUSTOPIFIHY CHARCES.
THIS LETTER OF CREDIT IS SURJEtT TO THE ‘UNIFORH CUSTOHS FIND
PRRCTICE FO9 DOCUMENTARY CREDITS cl993 -REVI’BION) INTERNQTfONRL
CHRlll?ER DF COtlt’tERCE FUPLICRTION NO. 500’;
WE HEREBY UNDERTRUE TO BENEFICIQRY THRT DRRFTS DRRUN RND NEOOTInTED
STRICTLY IN COfiPLIRNCE WITH THE TERflS OF THIS LETTER OF CREDIT SHOLL
tlEET WITH DUE HUNUR UPON PRESENTATION TO us.
C0L.B 527-00001 1, PSI, 66b. 00
NNNN
4720190 5LJrll7u
** TOTAL PAGE.2 **
-- -...--l____-_ I
,-,, .- .
564
EXHIBIT “D”
WRITTEN CONSENT OF THE BOARD OF DIRECTORS
OF KAIZA POINSETTIA CORPORATION
The undersigned, constituting the sole member of the Board of Directors of KAIZA
POINSETTIA CORPORATION, a California corporation (“Corporation”), hereby adopts, confirms
and ratifies the following resolutions by her approval and execution of this Written Consent, in
accordance with the ByLaws of the Corporation and the provisions of California Corporations Code
section 307(b):
WHEREAS, the Corporation owns certain real property in the City of Carlsbad,
California, which it wishes to develop as a residential subdivision (the
“Development”);
WHEREAS, the Development is subject to the provisions of Chapter 2 1.85 of the
City of Carlsbad Municipal Code which require that in connection with such
Development the Corporation provide a certain number of housing units restricted
and affordable to lower income households (the “Restricted Units”) in the City of
Carlsbad;
WHEREAS, it is in the best interest of the Corporation to enter into an AfFordable
Housing Mitigation Agreement (the “Mitigation Agreement”) with the City of
Carlsbad concerning the Development and the Restricted Units;
WHEREAS, in connection with and as contemplated by the Mitigation Agreement,
it is in the best interest of this Corporation to enter into an Agreement Regarding
Participation Payment (“Agreement”) with Metropolitan Area Advisory Committee
on Anti-Poverty of San Diego County, Inc. (“MAAC”);
NOW, THEREFORE, BE IT RESOLVED, that Noriko Saiga, as the President
and/or Secretary of this Corporation, is hereby author&l and directed, on behalf of
this Corporation, to take all action necessary or appropriate to enter into the
Mitigation Agreement with the City of Carlsbad and the Agreement with MAAC,
each in form and substance acceptable to such officer(s), and to execute any and all
other documents on behalf of the Corporation necessary or appropriate in order for
the Corporation to effectuate the Mitigation Agreement with the City of Carlsbad and
the Agreement with MAAC.
RESOLVED, FURTHER that any and all acts heretofore taken by any officer or
officers of the Corporation in connection with the matters authorized by the foregoing
resolutions are hereby ratified, confirmed, adopted and approved by the Board of
Directors of the Corporation.
15
,-_, .- -1
IN WITNESS WHEREOF, the wdersigned has executed this Written
September ti , 1995. Consent as of
r,
16
KAIZA POINSETTIA CORPORATION 566
SECRETARY’S CERTIFICATE
I, Noriko Saiga, Secretary of Kaiza Poinsettia Corporation (the “Company”) hereby certify
in such capacity that:
Attached hereto as Exhibit A is a true copy of resolutions duly adopted by the sole member
of the Board of Directors of the Company by Written Consent dated September 2, 1995; such
resolutions have not been amended, modified or rescinded and remain in full force and effect; and
such resolutions are the only resolutions adopted by the Company’s Board of Directors or any
committee thereof relating to the transactions contemplated thereby.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: September 13 , 1995
17
- -
EXHIBIT "c
LEGAL DESCRIPTION OF LA TERRAZA PROPERTY 567
2 of Parcel Wap 1188, recordedr Decelnber being a portion of Fractional Section 4 West, San Bernardino Meridian, being of San Diego, State of described as follows:
Beginning: at k&!&@hwest corner of said parcel; thence easterly along the ncrx$h@&y,iline of said parcel, South 89'26'14n East, 1347.93 f,eetj(#?qjf+&t South 89*27'42H East, 1347.93 PM 1188), to the north#a&~,:qo+@?s??-of said Parcel 2; easterly Sin+i.eff .a:$# parcel, thence southerly along the
l South 0'33'08" West, 6.99' (record: South O*33'17,".ij@¶r$,.,PM 1188), to a line being 45.00 feet westerly and paral~el~~~,~~~canterline of El Camino Real as shown on Road Survey 18rOO-;1;:1:1% southerly and parallel with said centerline, 293.58 feet (record: South 37'03'56" West,
with the southerly line of the westerly along said southerly feet (record: North 89*32'0111 corner of said Parcel 2; thence of said Parcel 2, North 0.33'53" North 0'34'26" East, PM 1188), to the
,.
This ParfM: .$@w$; 2:+ 04 acres !i. 1. ;p
: i , . .
:
IIS\CARlSEAD.All
031495 (14) 148-W
EXHIBIT "E" E-l
0 -<.‘ t, cm I -
;.. . . * (Remainder Parael) \ CqyE, 65B, M.0. 93-07 s
All that p&ion& Parcel 2 of Parcel Map 1188 recrorded: December
20, 1972, as fifG'go^;"340j34, being a portion ok Frbatfonal Seation
23, Towns within E ip $% Elbv&', t, e pi&f.'k:' Catlsbad, County of San Diego, State of 9 Range 4 West, San Bernardino Meridian, being
Californ+a, ~,eP;#@% particularly described as follows: I. *. f; :' '+
Beginning #&Be;&ou&heast corner of the above described Parcel 2; thence n$rth@~$&#g khe easterly line of said Parcel 2, North 0*33'081t !Easg, :bgp,,?$ feet (record: North O*33t17tv East, PM 1188), to an iqter&t,i@~':witfi a line being 45.00 feet easterly and parallel,to ~@.q~$er&J.no of El Camino Real, as shown on Road Survey ?800?$) :/@&&ce southerly along said sideline, South
37'03'37Y We& qLi99 feet, foot radiu6 ';oW$l; to the beginning of a tangent 1455.00 Concave southeasterly, thence southwesterly along the at-9 qf;@# cute, through a central angle of 23*52'511', a distanpe .og p(#++$ feet, line of saidP+qc$i$,2; to an intersection with the southerly thence easterly along said southerly line, South 89!32@&~G,$?#~, 352.64 feet, (record: South 89'32'01" East, PM 1188); ta~;th(ri~Wthea& corner of said Parcel 2, also being the point of~,b~&~$k&Q ! .,.',Y .a...> I._.. ;:, t:',:
This par 63 ~~~$#~: 3.31 acres. p I' , <. .,i .r,':,. 'i :: . . ._,. :' :. f ,
: : ; '&
09/13/1995 13:23 BHA INC 8 61+ 931 7780 P.05
&#i?&#iVtD: I a,, - PRO 1.. ;.
*rti 1
“; .’ .: L ,;;i, ,b : AHWe- omm . : “:, ! ‘* y+
d+mw+i&~ q!?$ ’ , : ‘: ?’ ’
p -<,?,l .-ii-+ h ?r ,_ i EXHIBIT “8” ~
,,;‘,ylLLjW MINOR SUBDlVlSlON . . .~ .
PiAT FOR jC$J!#$W.~d&~$Z OF COMPUANCE ‘< ? + ‘;; <: p$:‘! ‘I ,.,, ! i .’
09/13/1995 13:23 BHFl INC I Y : t 619 931 7780 P.016
r”. , - > : 7, ; .---
I’ i I C-EXHlBlT “8” -I (REMAINDER PARCEL) r 570
dm&i+&W:‘~bP k%M%?EL 2, FWRC~L MAP I?88 ./ /
., 1 ::; y/
-pQdW tw ur -m -. crf -5~
8E EDIcA7W FUR z=WeLc tV~V~6s~S--- .
ECT NO. - “‘-de-... PROJECT ~&j~, $“~~$$vILL<As* MINOR’ S”BDW,SION Pi%lJI 8%
PLAT FO< qF$f+$#TE :OF COMPLIANCE ML& 9;;go7 L . I II’ .‘i I /‘: ‘I ,.i: ‘Y’ -rn-rn, c1 mc
EXHIEHT
“8”
WT. 2 OF 2
September 19, 1995
Gregory J. Smith
San Diego County Recorder Post Office Box 1750
S;ln Diego, CA 92112-4147
Rnclosed for recordation is the following described document:
Affordable Housing Mitigation Agreement with Kaiza Poinsettia Corporation
Also enclosed are instructions on how the City is to be billed for
the recordation fees incurred.
Thank you for your assistance in this matter.
KRK: ijp
I::ncl osures
1 :?m C;II-l:;lx~rl Village Drive - Carlsbad, California 92008-l 989 l (619) 431-2800 @