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HomeMy WebLinkAboutAviara Land Associates; 1992-09-14;.- I \* 0 a 't ., li .< -I AVIm MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING This Aviara Master Plan Agreement for Inclusiona~ Housing (this glAgreementgl) is entered into as of September 1992, by and between Aviara Land Associates Limited Partnership, a Delaware limited partnership (IIAviara'I), anc CITY OF CARLSBAD, California, a municipal corporation ("Cii with respect to the recitals set forth in Section 1 below: SECTION 1. Recitals 1.1 Aviara Project. Aviara is the developer of certain real property located in the City of Carlsbad, California (the "Aviara ProjectJ1) and which Aviara Project the subject of certain development approvals received from including without limitation: The Master Plan approved by on December 22, 1987, Resolution No, 9322 and Ordinance No. 9839, as amended; final subdivision maps for the first phase portion of the Aviara Project, which final maps were recorded in the Official Records of the County of San Diegc California, on June 29, 1989; Amendment to the Master Plan respect to Phase I1 of the Aviara Project approved by City February 19, 1991, Resolution No. 91-60 and Ordinance No. 1 140, as amended; and Tentative Subdivision Map (C.T. 89-37 approved for portion of Phase I1 of the Aviara Project by Resolution No. 91-60, adopted by the City on February 19, . 1.2 Aviara Land, The Aviara Project consists o three planning phases within each of which are numerous IIPlanning Areas,I1 Certain residential Planning Areas have sold or otherwise transferred by Aviara to Merchant Builde: Entities and certain non-residential Planning Areas have bc transferred to a hotel/golf resort development partnership Those residential Planning Areas of the Aviara Project whic as of the date first written above, are owned by Aviara or related entity are referred to herein as the IIAviara Land, which includes Planning Areas 3, 13, 15 and 17 through 30, inclusive. The term "Aviara Landt1 shall also include any ' residential Planning Area of the Aviara Project which, aft1 the date first written above, reverts to the ownership of t otherwise becomes owned by Aviara or related entity. Avia agrees that this Agreement shall bind Aviara and any purchl assignee, transferee or successor-in-interest as to any PO of the Aviara Land. The parties agree to execute and reco against the Aviara Land such memoranda of this Agreement a be necessary to provide notice of this Agreement to all su parties. NU003503F.D86 Previous Draft/Inclusionsr) 080492 -1- 0 a .I i- . .? .. <* .- 1.3 DeveloRment of Aviara Units, Attached heret Exhibit ltA1l and incorporated herein by reference is a table entitled ttCity of Carlsbad-Inclusionary Housing Requirement Aviara Master Plan." The table has been divided into six vertical columns, identified by capital letters, one for ea of six categories each of which reflects a different stage development for respective Planning Areas enumerated therei The stages of development range from undeveloped at the far right-hand column (column F) through progressively more developed stages, with each column further left on the page representing progressively an increased level of developmen Within each of the six categories, the column headed by the initials 'IPAIl refers to one or more Planning Areas by numbe and the column headed by the initials rrDUtw refers to the nu of the Dwelling Units contemplated for such respective Plan Area. The listing of Planning Areas in respective categori is intended by the parties to set forth the respective stag development for each such Planning Area as of the date firs written above. .. For convenience herein, the term "Category -" (e,g.! Category B) shall refer to properties within the Planning Areas listed within the respective category columr identified by letter on Exhibit rlA.rl the actual number of dwelling units contemplated by the par based on the actual numbers shown on final maps or approved tentative maps: (b) as to Categories D and F, the theoretic maximum number of dwelling units authorized for the respect Planning Areas therein as set forth in the Aviara Master PI and (c) as to Category E, the actual number of dwelling unj shown in approved tentative maps (for Planning Areas 25, 2E and 29 for which such approvals have been achieved), and otherwise the theoretical maximum as set forth in the Aviar Master Plan. The parties recognize and anticipate that the actual number of dwelling units which will be approved and constructed upon Planning Areas which do not yet have apprc tentative maps will probably be significantly lesser than t master plan maximums. The parties agree that the number of dwelling uni reflected in the table is subject to change from time to t: as the Aviara Project is developed, and that the Inclusion; Housing Requirements shall be calculated on the basis of tl actual number of dwelling units for which building permits issued, rather than estimates. From time to time, as such changes occur, Aviara shall submit to the City a modified Exhibit I*Att reflecting the updated estimates of numbers Of dwelling units to be developed in various Planning Areas, i well as the actual number of dwelling units authorized by ! maps for various Planning Areas. In addition, the parties Said table reflects: (a) as to Categories B and NU003503F .DM Previous Draft/InclusioMry 080492 -2- - *. .\ a a .. -- z rP .. f agree that Exhibit *@A*' reflects the current status of development of the various Planning Areas, but that request for changes to any approvals previously given by the City i any particular Planning Area shall not result in such Plan1 Area being reassigned to a different category: provided, however, that if Aviara (or an entity which acquired or acquires a Planning Area from Aviara) requests an amendment a tentative or final map for a Planning Area in Category c which a tentative map has previously been approved, then ii change so rsquested results in an increase in the number oi dwelling units authorized for such Planning Area above that which is then set forth in Exhibit 19A1* for the previous fi1 map, there shall be added to the Aviara Affordable Units a number of low and moderate income housing units equal to fifteen (15%) of such increase. 1.4 Aviara Inclusionarv Condition, On February 1991, City conditioned the final map approval of Tentative Subdivision Map COT. 89-37 upon the satisfaction of the following (the "Aviara Inclusionary Condition1*) : *@Prior to final map approval for the Phase I1 portion of the Aviara Master Plan, the applicant (Hillman Properties or their successor in interest) shall enter into an agreement with the City to provide the Aviara Master Plan's proportional share of the City's total obligation for very low, low and moderate income housing units.*@ 1.5 Intentions of Parties. It is the intention the parties hereto that upon execution hereof, the Aviara Inclusionary Condition shall be deemed satisfied. The par1 further intend that upon satisfaction of Aviara's obligatic hereunder, the requirements of the Inclusionary Housing Requirements (as defined herein) shall be deemed to have bc met as to the Aviara Land. For purposes of this Agreement I'Inclusionary Housing Requirements"' means that certain Resolution No. 91-22 adopted January 15, 1991 by the City Council of the City requiring as a condition to developmenf master and specific planned communities the inclusion of vc low or low income housing, as such Resolution is amended f: time to time and as the same may be superseded by further action of the City Council of the City with respect to the subject matter of requiring the inclusion of very low, low moderate income housing units as a condition to developmen (among other things) master and specific planned cornmitic including without limitation the adoption of a revised Houi Element 1991-1996 as a part of the City of Carlsbad Genera Plan. WUOO3503F .OM Previous Drsft/IncLueioMry 080492 -3- - -. .I 0 a .. __ . ti .. . -1 . + 1- 1.6 Certain Definitions. It is the intention 0: parties that the following definitions shall apply for purl of this Agreement: 1.6.1 tlLow Income Affordable Renttg shall mc rental rate not greater than thirty percent (30%) of eight] percent (80%) of the median family income for San Diego cot adjusted for family size and revised annually. 1.6.2 18Low Income Housingt' shall mean rent; housing units intended for persons and families whose incoi in the range defined herein as Low Income. 1.6.3 tgLow Incomet1 shall mean income more 1 fifty percent of but not greater than eighty percent of tl median family income for San Diego County, adjusted for fai size and revised annually. 1.6.4 Very Low Income Affordable Rent" Shi mean rental not greater than thirty percent (30%) of fifty percent (50%) of the median family income for San Diego Coi adjusted for family size and revised annually. 1.6.5 Very Low Income Housing" shall mean rental housing units intended for persons and families who: incomes are in the range defined as Very Low Income. than fifty percent of the median family income for San Die( County, adjusted for family size and revised annually. 1.6.7 Attached hereto as Exhibit t8B8* is a * which the parties agree sets forth the income limits for families of various sizes, at the percentage levels of fif percent (50%) f and eighty percent (80%), respectively, of median family income for San Diego County as most recently determined in April, 1991. The parties acknowledge that t. income limits are and will be revised annually. NOW THEREFORE, in light of the recitals set fort Section 1 hereof (which the parties hereto agree are true) the mutual promises contained herein, the parties agree as follows: 1.6.6 Very Low Incometg shall mean income SECTION 2. Aviara's Oblicfations 2.1 Provision of Affordable Housinq. With resp to the Aviara Land, Aviara's proportional share of the Cit total obligation for very low, low and moderate income hou units is hereby established as follows: MU003503F .DE6 previous Drsft/Inclmrionaq 080692 -4- e a . ,: .. .- .i 2.1.1 It is acknowledged that Category A iz exempt from the InClUSiOnary Housing Requirements. For thc Planning Areas which are listed within Categories B or c 01 Exhibit "AI' and which are part of the Aviara Land (being Planning Areas 3, 13 and 24), Aviara's proportional share : be thirty-two (32) low income housing units, said number bt equal to fifteen percent (15%) of the aggregate of all SUC~ Aviara Land Planning Areas. Prior to completion of the Av: Project, in addition to any other construction pursuant to Aviara Master Plan, Aviara shall (except to the extent exci by Section 3.2) either (i) construct or cause to be constn the number of low income housing units required by this subparagraph, or (ii) satisfy the Inclusionary Housing Requirements as to such number of units by the payment of : lieu fees or dedication of land or a combination thereof, : and to the extent the Inclusionary Housing Requirements so permit, or (iii) otherwise satisfy Aviara's proportional sl in a manner consistent with City Housing policies and apprc by the City. With respect to those Planning Areas listed in Categories D, E and F of Exhibit "A,1' it shall bt obligation of Aviara prior to the earlier to occur of completion of the Aviara Project or ten (10)years from the Effective Date, in addition to any other construction pursi to the Aviara Master Plan, to construct or cause to be constructed low income housing units at a number equal to 1 greater of one hundred sixty (160) or fifteen percent (15%: the aggregate number of building permits actually issued b! City for construction within such Planning Areas. If Plan1 Area 19 is used as the site of low income housing units, tl only the building permits issued by City as to Planning Arc for dwelling units which are not restricted to low income housing pursuant to this Agreement shall be considered for purpose of such computation. 2.1.3 The aggregate number of low and model income housing units which Aviara is required to construct cause to be constructed pursuant to Sections 2.1.1 and 2.1 as the same may be increased pursuant to the ultimate sentc of Section 1.3, is herein referred to as the I'Aviara Afforc Units. I@ 2.1.4 For purposes of this Agreement, City shall not require leasing of any Aviara Affordable Unit at rental rates lower than 30% of 60% of the County median inc adjusted for family size and revised annually. Aviara may elect to establish lower rental rates for the purpose set in Section 3.2.2(b) (1) , and, if so, then City shall be ent. to require rental rates, for the rental dwelling units so affected, as low as 30% of 50% of the County median income adjusted for family size and revised annually. , . L' 2.1.2 NU003503F.D86 Previous Drsft/InclusioMry 080492 -5- 0 * .. .. .. .. ._ . . 1- . *I 1- 2.2 Location of Affordable Housinq. The Aviara Affordable Units shall be located either within Planning Area 19, or on an off-site property within the Southwest quadrant of the City which is acceptable to City and as approved by City, or on a combination thereof. The parties acknowledge that certain property identified as Planning Area 32A is owned by Aviara and is adjacent to Planning Area 19, and that such property is designated as a park reserve, in the Master Plan for the Aviara Project. Pursua to such Master Plan, City has the option to acquire such property ("Park Reserve Propertyt1) by purchase at any time prior to July 1, 1995. City agrees that if Aviara elects t proceed with any or all of the Aviara Affordable Units on Planning Area 19, then, if requested by Aviara to do so, Ci shall consider in good faith (i) waiving and surrendering I option with respect to such Park Reserve Land and (ii) allc the site plan and other applicable land use applications, II and processes for the Aviara Affordable Units to include su Park Reserve Land in conjunction with and effectively as a of Planning Area 19. In the event that City so elects to a the use of the Park Reserve Land, then all of the other provisions of this Agreement which are applicable to Planni Area 19 shall apply with equal force to such Park Reserve I In such event, then for purposes of the percentage computat in the first sentence of Section 2.1.2, such Park Reserve I shall be considered as if it were a part of Planning Area 3 and there shall be no requirement of any additional very IC low income housing units for the Aviara Land by virtue of E proposed construction or construction of such units on the Reserve Land. Existing provisions of the Master Plan for the Aviara ProjE and existing provisions of the development standards of Cit including without limitation the growth management ordinanc and City Council Policy number 43, contemplate density trar in certain circumstances. The parties acknowledge that pursuant to such ordinances and such Policy, affordable hot is the first priority for the use of density transfers. XI that context, the City shall consider in good faith, in lis of all of the circumstances, and not unreasonably withhold approval, any requests by Aviara to apply the principles ol density transfer to the development and construction of the Aviara Affordable Units on Planning Area 19, or on an offs: property approved by City pursuant to Section 2.2, so as tc maximize the number of the Aviara Affordable Units to be constructed thereon. In connection with such development i construction of the Aviara Affordable Units, whether on Planning Area 19 or on an off-site property, City shall al! consider in good faith granting a density bonus, waiving ai relaxing its development standards, modification of Zoning 2.3 Modifications to DeveloDment Standards. Previous Draft/Inctu6iamry NU003503F.DB6 080492 -6- ~ 1. . .', .. .. a 0 .a . s fi- other regulatory requirements (including but not limited t, set-back requirements, height limitations and fees) and expediting the entitlement process. 2.4 Control bv Citv of Aviara Affordable Housini 2.4.1 Catesories D and E. No building per: for any of the Planning Areas in Categories D and E shall I issued unless and until the deed restriction referred to i: Section 2.4.4 has been delivered to City and one of the following has been satisfied for a number of low income ho units equal to fifteen percent (15%) of the number of aggr dwelling units authorized by the final maps and approved tentative maps for Planning Areas within Categories D and (a) Payment of the full amount of in fees required for satisfaction of the Inclusionary Housing Requirements attributable to Categories D and E, if and to extent such in lieu fees are authorized by the Inclusionar Housing Requirements (or, if the Inclusionary Housing Requirements do not authorize in lieu fees for properties Categories D and E, but are authorized for any other Plann Areas of the Aviara Land, than this requirement may be satisfied by Aviara delivering a promissory note in the am calculated as if such in lieu fees did apply to Planning A in Categories D and E; and such promissory note shall be d and payable unless the requirements of clause (c) hereof h been satisfied within three (3) years from the date of iss of the first building permit for residential property with Categories D or E; and such promissory note shall be secur a first deed of trust in favor of the City encumbering Pla Area 19, which deed of trust shall also secure the perform by Aviara of the conditions set forth in this Section 2.4. and such deed of trust shall be released and reconveyed of record by City upon satisfaction by Aviara of the requirem of this Section 2.4.1; (b) Dedication of all land required f satisfaction of the Inclusionary Housing Requirements attributable to Categories D and E, if and to the extent s dedication of land is authorized by the Inclusionary Housi Requirements ; or (c) Each of the following has been satisfied: (i) City has approved a site plan showing the precise locations and number of the Aviara Affordable Unit attributable to Categories D and E; and (ii) Aviara has provided assurances acceptable to the City of its commitme build the Aviara Affordable Units attributable to Categori and E pursuant to a timetable approved by the City which s in any case provide for both (A) the start of construction all the Aviara Affordable Units attributable to any Planni NU003503F .OB6 Previous DraftfInclusioMr 080492 -7- a 0 .* . -*, .. .. _- .i . . r- Area within Categories D or E within three (3) years of thc issuance of the first residential building permit attribut; to such respective Planning Area and (B) completion of construction of all Aviara Affordable Units attributable tc Categories D and E within ten (10) years from the Effectivc Date (subject to extension for delays caused by the City); (iii) Aviara has provided evidence satisfactory to City of ability to pay for the cost of such construction. 2.4.2 Catesorv F. No building permits for of the Planning Areas within Category F of the Aviara Projc shall be issued unless and until either of the following h: been satisfied for the balance of the low income housing UI required pursuant to Section 2.1.2: (a) Payment of the full amount of in : fees required for satisfaction of the Inclusionary Housing Requirements, if and to the extent such in lieu fees are authorized by the Inclusionary Housing Requirements; (b) Dedication of all the land requirc for satisfaction of the Inclusionary Housing Requirements attributable to Category F, if and to the extent such dedication of land is authorized by the Inclusionary Hous'ii Requirement; or satisfied: (i) City has approved a site plan showing the precise locations and number of the Aviara Affordable Unit: required hereunder; and (ii) Aviara has provided assurance acceptable to City of its commitment to build the Aviara Affordable Units pursuant to a timetable approved by City I shall in any case provide for completion of all Aviara Affordable Units attributable to Category F within ten (10: years from the Effective Date; and (iii) Aviara has providc evidence satisfactory to City of its ability to pay for thc cost of such construction, (c) Each of the following has been 2.4.3 In General. The price restrictions, ownership restrictions and rent restrictions of the Aviara Affordable Units shall be in accord with the provisions as applicable under the Inclusionary Housing Requirements as 1 same are in effect at the time; provided, however, that thc term of such restrictions shall be fifteen (15) years from date of first occupancy of any such units, unless a shorte: period of time is approved by the City. At the time Aviari applies to the City for a building permit for any such affordable units, Aviara may request that the City approve shorter term of restrictions than fifteen (15) years. The agrees to consider any such request in good faith, and sha. approve or disapprove such request in light of all factors Provided further, in the case of any request for direct NU003503F.DB6 Previous Draft/IncLusioMrY 080492 -a- ._ - - -* .I .\ .. 0 * .A financial subsidy (such as, without limitation, the use of revenue bonds as a financing device), the City shall have 1 right to condition such financial assistance on a term of : restrictions that exceeds fifteen (15) years. It shall be responsibility of the owner of the Aviara Affordable Units certify as to the eligibility of prospective occupants of I Aviara Affordable Units during the period of restriction pursuant to this Agreement. The parties intend that the Aviara Affordable Un. should be constructed and open for occupancy within five yt following the effective date of this Agreement. The partif acknowledge, however, that completion depends upon both (i) timely submittal of plans for such Aviara Affordable UI and for Category F, by Aviara, and (ii) timely processing such plans by City. 2.4.4 Deed Restriction. Aviara shall exec1 and deliver to City an instrument in recordable form to de4 restrict Planning Area 19 so that, for the term thereof, Planning Area 19 shall be used only for residential develo] of Low Income Housing unless otherwise approved by City. 1 satisfaction by Aviara of the conditions set forth in both Sections 2.4.1 and 2.4.2, City shall execute such instrumel as shall be necessary to remove said deed restriction of ri and the same shall be of no further effect. 2.4.5 Tenants at Emiration of Restrict It is the intent of the parties that, to the extent feasib the expiration of the term of the Affordable Housing restrictions should not unreasonably burden the tenants in Aviara Affordable Units at the time that the term of the restrictions expire. (For purposes of this Section, such tenants shall be referred to as the "Tenants in Residence" To that end, the parties agree as follows: (a) At the time a tenant first rents such unit, and annually, on the anniversary of the first occupancy of any such units, Aviara (or its successor in interest to the property) shall provide written notice to tenants of any Affordable Units, of the date on which the limitations on rent contained in this agreement shall terminate. Such notice shall inform the tenant of such Affordable Unit that after such date, the owner shall have right to increase rents to market levels. Prior to the termination of the restrictions, the City and Aviara (and its successors and assigns) shall cooperate in identifying alternative suitab affordable housing to which Tenants in Residence may reloc Such replacement units shall be decent, safe and sanitary, to the extent feasible, comparable in terms of rent, numbe 6- .. (b) NU003503F .OW Previous Draft/InclusioMrl 080192 -9- L 0 e .. . .; .I .. ._ . . ,i' .. L' bedrooms and amenities to the Affordable Unit being occupie such Tenant in Residence. To implement this provision, not later than one year prior to the termination of the restrictions, Aviara shall notify the City in writing of th impending termination of the restrictions and whether it intends to increase rents of the Affordable Units upon such termination. (c) In the case of any Tenant in Resid who has occupied an Affordable Unit for at least two years prior to the termination of restrictions and who moves as t result of any increase in rents after such termination and move is within six (6) months of such termination, Aviara s pay relocation costs in connection with such Tenant's move replacement. Such costs shall include the actual cost of moving such Tenant's furniture and other personal property required for rental of a replacement unit subject to a maxi of sixty percent (60%) of the then applicable maximum month rental chargeable pursuant to the Affordable Housing restrictions for the respective affected Affordable Unit. SECTION 3. Other Obliaations For Plannins Areas in Catesories B and 3.1 Non-Aviara Land. The parties acknowledge tk as to those Planning Areas which are not part of the Aviara Land, Aviara is not able to bind the owners thereof. It is acknowledged that Category A is exempt from the Inclusionax Housing Requirements. As to those residential Planning Are within Categories B and C which are not part of the Aviara Land, the parties acknowledge that the respective owners thereof may be subject to the Inclusionary Housing Requirements. If so, then, except to the extent provided j Section 3.2, such owners would be required to either (i) construct or cause to be constructed a number of low ir housing units equal, in each instance, to fifteen percent ( of the actual number of dwelling units for which building permits are issued by the City, or (ii) satisfy the Inclusionary Housing Requirements by the payment in lieu fc or dedication of land, if and to the extent that the Inclusionary Housing Requirements so permit. Requirements apply to any of the Residential Planning Areas within Categories B or C which are not part of the Aviara I and to the extent that such requirement is not otherwise satisfied by payment of in lieu fees or dedication of land and to the extent that the Inclusionary Housing Requiremenl permit), then Aviara shall have the right (but not the obligation) to include some or all of the low income housii units required with respect to some or all of such Planninc To the extent that the Inclusionary Housing NU003503F .DM Previous Draft/InclusioMry 080492 -10- .. - .. 0 e . ..' r- Areas together with the construction of the Aviara Afforda: Units . 3.2 Exemption of Cateaories B and C from 3.2.1 Inclusionarv Housina Requirements. None of the Planning Areas listed in Categories B and C (other than Planning Area 24) shall be subject to the Inclusionary Housing Requirements in the evc that the Inclusionary Housing Requirements do not apply to for which a tentative map had been approved by City prior. the adoption by the City Council of City of Resolution No. 22 on January 15, 1991 and for which the conditions of app did not include the Aviara Inclusionary Condition, 3.2.2 None of the Planning Areas listed in Categories B and C shall be subject to the Inclusionary Hoi Requirements in the event that not later than eighteen (18: months from the date first written above, Aviara has done ( caused to be done one of the following: Paid to the City the cash sum of ( Million Five Hundred Eighty-Four Thousand Dollars ($1,584,000.00) in cash. This requirement may be satisfiec whole or in part by Aviara producing or causing to be prod1 affordable housing units over and above the requirements s( forth in Section 2.1.2, and the credit for which Aviara shi receive towards the monetary equivalent of the dollar amoui herein written shall be determined in accordance with the 1 of equivalency set forth in subparagraph (b) below: or (b) Aviara has done each of the follot (i) identified a site for location and construction of the Aviara Affordable Units attributable to Categories D, E, ai which site may be in Planning Area 19 or off-site to the el allowed by Section 2.2: (ii) if such site is not in Plannii Area 19, presented City with evidence that Aviara has entei into an escrow to acquire such site, subject to the condit: that City approve a site plan thereon for the required nu of low income units referred to in this section; (iii) pro7 assurances acceptable to the City that, conditioned upon C: approval for the appropriate number of low income units, AT is committed to build thereon (A) all the Aviara Affordablt Units attributable to Categories D, E, and F plus (B) affordable housing units over and above the requiremen1 set forth in Section 2.1.1 so that the credit which Aviara shall receive therefor shall equal or exceed that portion c the dollar amount specified in subparagraph (a) above whid not been paid in cash, all pursuant to a timetable approvec the City which shall, in any case, provide for the start 01 construction of such units within twelve (12) months of the issuance of all approvals and permits from City, the Califc (a) Previous Draft/Ioclusiaurry YU003503F.D86 080492 -11- 0 0 . -' .. - .. ,. .* .* I L. __ .. Coastal Commission and other applicable governmental entiti which are necessary for such commencement of constmction; (iv) provided evidence satisfactory to City of its ability pay for the cost of such construction. To the extent that the affordable units proposed Aviara and permitted by City as set forth above in this subparagraph (b) contain any of the following features, the incremental credit shall be given to Aviara toward the mone sum referred to in subparagraph (a) above, and if the aggre of such incremental credit equals or exceeds such dollar figure, then the dollar figure shall be deemed to have been paid and the condition thereby satisfied: rent is restricted to Very Low Income Affordable Rent shall deemed to have an incremental value (in addition to any 0th applicable incremental value) of One Thousand Two Hundred Forty-Eight Dollars ($1,248.00) per two bedroom unit per restricted year. rent is restricted to Low Income Affordable Rent, and for w the number of such units exceeds one hundred sixty (160), s have an incremental value of One Thousand Three Hundred Twe Dollars ($1,320.00) per two bedroom unit per restricted yea Each three bedroom or larger dwelling unit shall be deemed to have an incremental value addition to any other applicable incremental value) of One Thousand One Hundred Eighty-Eight dollars ($1,188.00) per u per restricted year. (4) However, to the extent that t aggregate of two bedroom or larger units is less than one hundred sixty (160), then each one bedroom dwelling unit us to make an aggregate of one hundred sixty (160) shall be de to have a negative incremental value of One Thousand One Hundred Eighty-Eight Dollars ($1,188.00) per unit per restricted year, so that the dollar figure set forth in subparagraph (a) shall be increased by such amount. In no I may one bedroom units comprise more than one-third of the affordable units to be provided pursuant to this Agreement. 3.2.3 (a) The requirement for any addition Aviara Affordable Units resulting from application of the ultimate sentence of Section 1.3 hereof shall (except to thl extent satisfied by alternative 3.2.3(b)) be satisfied by Aviara producing or causing to be produced affordable housi: units over and above the requirements set forth in Section 2.1.2 on a unit-for-unit basis. Such additional affordable units may come from those provided by Aviara (1) Each dwelling unit for which (2) Each dwelling unit for which (3) YU003503F.DBb Previous Oraft/InclusioMfy I -92 -12- . _1 -- -1 . 0 0 .. . : .. .I -, .. pursuant to subparagraph 3.2.2(b) in addition to those for which Aviara earns credit for the purposes of satisfying Section 3.2.2, or from those otherwise provided by Aviara pursuant to this Agreement in addition to those for which Aviara earns credit for purposes of satisfying this Agreeme (b) Aviara may request that its obligation t produce or cause to be produced such additional affordable housing units resulting from the application of the ultimat sentence of Section 1.3 hereof, by payment to the City in t cash sum equal to the product of (i) $49,500.00 multiplied (ii) the number of additional Aviara Affordable Units so required, and the City shall consider any such request in g faith, in light of all the circumstances, and not unreasona withhold its approval of such requests. 3.2.4 The satisfaction of the conditions se forth in Section 3.2.2(b) shall also automatically (i) be deemed to satisfy the conditions set forth in subsections 2 and 2.4.2 with respect to the issuance of the residential building permits for Categories D, E, and F, and (ii) entit Aviara to the benefits of the Affordable Housing Developmen Agreement referred to in Section 7.16. SECTION 4. Term of Aureement 4.1 Term. This Agreement shall become effective (the "Effective Date") thirty (30) days following approval hereof by City Council, and shall last for a term of ten (10) years thereafter, unless extended or terminated by act of the parties. 4.2 F ive Year Review. The parties contemplate t the Housing Element of the Carlsbad General Plan, including not limited to those portions thereof as deal with Inclusio Housing Requirements, will be subject to review in 1996. T parties acknowledge the possibility that such review might result in the adoption of revisions to the Inclusionary Hou Requirements. As to any Planning Area of the Aviara Land f which no building permits have been issued prior to the fif anniversary of the effective date of the Agreement, such Planning Area shall be subject to any increase in the numbe very low, low and moderate income housing units as then required under any such revision to the Inclusionary Housin Requirements. NU003503F -086 Previous Draft/Inclusionary 080492 -13- a 0 r7 ." II. ._-- ' ab SECTION 5. Obliuations of Citv -_ .. 5.1 Satisfaction of Affordable Housina Remirem and Aviara Inclusionarv Condition. Upon execution of this Agreement, the Aviara Inclusionary Condition shall be deem satisfied. hereunder, Aviara and the Aviara Land shall be deemed to b full compliance with the Inclusionary Housing Requirements Upon satisfaction of Aviara's obligations SECTION 6. Notices 6.1 Notices. Unless otherwise specifically pro in this Agreement, all notices, demands or other communica given hereunder will be in writing and will be deemed to h been duly delivered upon personal delivery or as of the se business day after mailing by United States mail, return receipt requested, postage prepaid and addressed as follow If to Aviara, then to: DOL. Clemens Hillman Properties West, Inc, 2011 Palomar Airport Road Suite 206 Carlsbad, California 92008 With a copy to: Sheppard, Mullin, Richter & Hampton 501 West Broadway, 19th Floor San Diego, California 92101 Attn: Christopher B. Neils If to City of Carlsbad, to: City Manager City of Carlsbad City Hall 1200 Elm Avenue Carlsbad, California 92008 or to such other address as any party will designate to th others for such purpose in the manner set forth above. NU003503F ,066 080492 -14- Previous Orsf t/ I nclusiwq 0 a .I .. .- .i .. SECTION 7. General Provisions 7.1 Authoritv of Individuals Sisnins on Behalf o Cornoration. the corporation constituting any party warrants that (i) he she is duly authorized to sign and deliver this Agreement o behalf of the corporation, in accordance with a duly adopte resolution of the board of directors of the corporation or accordance with the bylaws of the corporation, and (ii) thi Agreement is binding upon the corporation in accordance wit its terms. 7.2 Authority of Individuals Sisnina on Behalf o Partnership. Each individual signing this Agreement on beh of the partnership constituting either party warrants that (i) he or she is duly authorized to sign and deliver this Agreement on behalf of the partnership, in accordance with provisions of an agreement of partnership for the partnersh currently in effect and (ii) this Agreement is binding upon partnership in accordance with its terms. 7.3 Joint and Several Liabilitv. If either part consists of more than one person, the liability of each per signing this Agreement will be joint and several. inserted for convenience of references only and do not defi described or limit the scope or the intent of this Agreemen Agreement and attached hereto are a part of this Agreement. documents referred to herein contain the entire agreement between the parties relating to the transactions contemplat hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement. This Agreement sh not be effective until executed by all parties hereto. 7.7 Modification or Amendment. No modification, waiver or discharge of this Agreement will be valid unless is in writing and signed by the party against which the enforcement of the modification, waiver or discharge is or be sought. An amendment to this Agreement which provides f the addition of a new participant shall provide that all te and conditions of this Agreement remain enforceable, and tk the new participant shall be bound by the terms of this Agreement. Each person signing this Agreement on behalf 7.4 Cantions. Captions in this Agreement are 7.5 Exhibits. All exhibits referred to in this 7.6 Entire Aareement. This Agreement and the NU003503F .DM Prwious Draft/InclusioMry 080492 -15- e 0 *: .. . . .*- L I* 7.8 Attornevs' Fees and Costs. If either party commences litigation or other proceedings (including, with limitation, arbitration) for the interpretation, refomati enforcement or rescission of this Agreement, the prevailin party will be entitled to recover from the other party an amount equal to reasonable attorneys' fees and court and o costs incurred in such action or proceeding, in addition t other relief awarded to any party therein. The prevailing party shall be determined by the tribunal in such action o proceeding, and if not, then by the then presiding judge o San Diego County Superior Court. 7.9 Successors. All terms of this Agreement wi' binding upon and inure to the benefit of each of the partic and its respective administrators or executors, successors assigns. Any assignment by either party shall be only by i instrument in writing, with a copy thereof provided by not to the other party. 7.10 Countemarts. This Agreement may be execui in any number of counterparts, each of which will be deemec be an original, but all of which together will constitute 4 instrument. -. .. 7.11 Amlicable law. This Agreement will be construed and enforced in accordance with the laws of the 1 of California. This Agreement shall be deemed made and en1 into in San Diego County, which shall also be deemed to be sole proper venue for any action or proceeding relating to Agreement. 7.12 Cooueration. Aviara and City acknowledge t it may be necessary to execute additional documents or othe writings in order to perform their respective obligations hereunder. Aviara and City hereby agree to cooperate with other by executing such other documents or taking such othc action as may be reasonably necessary to implement the puq of this Agreement. 7.13 No council member, official or employee of City shall have any personal interest, direct or indirect, this Agreement nor shall any such council member, official employee participate in any decision relating to this Agred which affects his or her personal interests or the interest any corporation, partnership or association in which he, or is directly or indirectly, interested. 7.14 Aviara warrants that it has not paid or giv and will not pay or give, any third party any money or 0th consideration for obtaining this Agreement. NUOO3503F .OM 080492 -16- Previous Oraf t/ I net us i mry ' - -- , a. e:. 0 0 ^. ." 7.15 NO council member, official, officer, or employee of the City shall be personally liable to Aviara, any successor in interest, in the event of any default or breach by the City, or on any obligations under the terms ( this Agreement. Attached hereto as Exhibit "C" is the form of an Affordablc Housing Development Agreement which is not yet approved by City, but which if so approved shall become effective only certain conditions which are specified therein. City shall timely process such Affordable Housing Development Agreemei accordance with Chapter 21.70 of the Carlsbad Municipal Co< California, as of the date first set forth above. AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By Aviara Land pany, a Delaware corporation, General 7.16 Affordable Housins Development Aqreement. This Agreement has been executed at Carlsbad, i VICE f A&5 I WNT ent Company, a California corporatior A VED AS TO FORM: LE*-. "I*w*qt. Ronald R. Ball, City Attorney ATTEST: City Clerk previous oraftilnclusioMv -17- M\A003503F .D86 080492 *I- *. @ 0 .. . .* .. .. State of California 1 ) ss. County of hmd 1 in .? and /??d for said , before state, me, pessbnally /$&de appeared 4 personally known to me (e-vec zid~is racc -) to be the person+ whose name@) is/axe subscribed to the within instrument anc acknowledged to me that he/-y executed the same in hi s/hcr,/ t- 'r authorized capacity(-&-@, and that by hi s/kr/ them ' signaturew on the instrument the person@) 1 the entity upon behalf of which the persow) acted, executi the instruments. WITNESS my hand and official seal. Signature d Add- (Seal) -. State of California whose name) is/- subscribed to the within instrument an( acknowledged to me that he/skfkhey executed the same in his/hex/t:l &+authorized capacity(-, and that by hi s/h.cr,/ C,,?eK ' signature-) on the instrument the personw 1 the entity upon behalf of which the person(+) acted, executl the instruments. WITNESS my hand and official seal. Signature NU003503F .DM Previow Draft/Inclusionery I 080492 -18- , '. -. _. a*- .I .' .s 1. " *. > ! EXHlf3;i A c ~ <F" .L ks 0 e <. . .. ~ EXHIBIT "B" TABLE OF MEDIAN FAMILY INCOME FOR SAN DIEGO COUNTY APRIL, 1991 Very Low 50% Low 80% Familv Size Income Limits Income Limits 1 14450 23150 26450 2 16500 3 18600 29750 4 20650 33050 5 22300 35700 6 23950 38350 7 25600 40950 8 27250 43600 \ EXHh B N\Z003576L -086 MFFORDAELE Ha 03 1792 -1- CCRB-1