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HomeMy WebLinkAbout1992-09-01; City Council; 11877; Aviara Master Plan Affordable Housing AgreementI CITI->F CARLSBAD - AGENC x-~ BILL I /..I?$/ k - , rc .s \B#//, TITLE: AVIARA MASTER PLAN AFFORDABLE ~TG.+-/-~~ HOUSING AGREEMENT IEPT. PLN I IECOMMENDED ACTION: ADOPT City Council Resolution No. ?a-$36 APPROVING the Aviara Master Plan Agreement for Inclusionary Housing. As a condition of approval of the subdivision map for Phase II of the Aviara Master Plan, the developer was required to enter into an - affordable housing agreement with the City. The agreement was required prior to approval of a final map. The required agreement is attached as Exhibit 3. The staff housing task force, which includes legal counsel, worked closely with the developer in drafting the agreement. A summary of the agreement prepared by staff is contained in the attached memo to the City Manager from the task force dated August 21, 1992 (Exhibit 2) l By entering into this agreement, the developer is accepting a 15% inclusionary housing requirement although the ordinance to specifically mandate the requirement is not yet in place. A minimum of 160 units of lower income housing will be provided by the Master Plan developer. The location and timing of units is subject to a number of variables or alternatives contained in the agreement and summarized in the memo to the City Manager. One of the alternatives that both the developer and staff are supporting is contained in Section 3 of the agreement and provides for the accelerated development of the minimum required 160 lower income units. Under normal inclusionary housing requirements, the affordable units could be built in increments in proportion to the number of market-rate units being built. For example, if a developer is building 100 units, 15 units of lower income housing would be ,~ required. Under the proposed alternative, all of the required 160 units would be provided upfront at one time rather than incrementally. In return for utilizing this alternative, the developer is requesting that this satisfy the inclusionary requirement for already approved tentative maps in the previously- approved Phase I of the Master Plan and that the City approve an affordable housing development agreement which is allowed by Chapter 21.70 of the Municipal Code. This would protect the developer from future changes in affordable housing requirements. If the City Council agrees in concept with this alternative, the proposed affordable housing development agreement would be referred by staff to the Planning Commission for a recommendation should the developer elect to go forward with this alternative. PAGE 2 OF AGENDA BILL NO. /I, 83 7 As a final item, staff needs to emphasize the uniqueness of this agreement. The agreement is unique for the following reasons: 1. As mentioned previously, the actual, implementing ordinance mandating the 15% inclusionary housing requirement is not yet adopted. Staff and the developer had to draft an agreement without the total benefit of a final ordinance and mandate. The developer is to be commended for cooperating in and accepting a pre-mandated inclusionary agreement. 2. When the Aviara Master Plan was first approved, there was no requirement placed on the Master Plan by the City for affordable housing. The Master Plan commenced development, significant infrastructure improvements (i.e. Alga Road, school, park dedication) were made, assessments were placed on the property and a number of subdivision maps were approved and built. The requirement for affordable housing was placed on the Master Plan after it was under development and, as such, it was caught in the middle of a transition towards mandated inclusionary housing requirements. Staff took these factors into consideration in preparing the agreement with the developer. It is truly an agreement that is unique and non-precedential in that it was drafted during a transition period. It is a good agreement for the City in terms of providing affordable housing. FISCAL IMPACT The approval of this agreement has no direct fiscal impact on the City. No financial incentives are committed by the agreement. EXHIBITS 1. City Council Resolution No. 92-d?CP 2. Memo to City Manager from Staff Housing Task Force 3. Aviara Master Plan Agreement 4. Proposed Affordable Housing Development Agreement 5. Map depicting Aviara Master Land Use Plan 1 2 3 4 0 0 RESOLUTION NO. 92 - 776 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AFFORDABLE HOUSING AGREEMENT FOR THE AVIARA MASTER PLAN ENTITLED "AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING" WHEREAS, on February 19, 1991, the City Council approved ~ 5 lla Master Plan Amendment and a Tentative Subdivision Map for Phase 6 7 I1 of the Aviara Master Plan; and WHEREAS, a condition of approval required the Aviara "t eveloper to enter into an affordable housing agreement to provide its proportional share of affordable housing in conformance with 9 10 4 he City's Housing Element: and WHEREAS, the required agreement entitled "Aviara Master Plan Agreement For Inclusionary Housing" has been reviewed and 12 13(/considered by the City Council and fulfills the requirements of the l4 iLaster Plan and Tentative Subdivision Map condition. 15 16 1'7 18 19 20 21 of the City Clerk. 22 23 24 25 26 27 28 NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City of Carlsbad as follows: 1. That the above recitations are true and correct. 2. That the City Council approves the Aviara Master Plan Agreement for Inclusionary Housing; and 3. That a copy of the Agreement is on file in the Off ice ... ... ... ... ... ... ... - e e PASSED, APPROVED AND ADOPTED at a regular meeting of the 2 City Council of the City of Carlsbad, California, on the 1i 3 1st day of SEPTEMBER , 1992, by the following vote, to 4 5 wit: AYES: Council Members Lewis, Larson, Stanton, Nygaard NOES: None ABSENT: Council Member 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 EXHtBlT 2 AUGUST 21, 1992 TO: CITY MANAGER FROM: HOUSING TASK FORCE SUMMARY OF AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING PURPOSE OF AGREEMENT The purpose of the Agreement is to satisfy a condition of approval in (1) the tentative subdivision map for Phase II of the project, (ii) the tentative subdivision for Planning Area 24, and (iii) the February 1991 amendment to the Master Plan for the Aviara Project. SUMMARY OF AGREEMENT [The following is a summary of certain points that are described in full in the proposed Agreement. Reference should be made to the Agreement itself for the actual text.] 1. What Planninq Areas Are Covered by the Aqre8ment. The Agreement covers what is referred to as the "Aviara Land,'* consisting of various planning areas in the Aviara Project owned by Aviara Land Associates Limited Partnership (*'Aviara'*) or a related entity as the date of the Agreement (as well as other residential planning areas of the Aviara Project which, although not now owned by Aviara, may revert to Aviara prior to development). It does not apply to the 160 dwelling units in Planning Areas 4 and 8, for which building permits have previously been issued. These Planning Areas are exempt from the inclusionary housing requirements. The planning areas included in the Aviara Land are those designated Planning Areas 3, 13, 15 and 17-30, inclusive. These are divided among categories B through F, as indicated in Exhibit A to the Agreement.' ' Category B (PA 3, 13 and 14); Category C (PA 5, 7, 9, 12, 16 and 24); Category D (PA 15); Category E (PA 25-30); Category F (PA 17-23). SUMMARY OF AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING PAGE 2 Exhibit A indicates that there may be as many as 1,398 dwelling units developed on the Aviara Land' although the Agreement acknowledges that the actual number of dwelling units will probably be significantly less than that. Nevertheless, although the number of Affordable Units will be tied to the actual number of dwelling units that are constructed and to the alternative construction schedule that is selected, Aviara's Affordable Housing obligation will be not less than 160 Affordable Units, regardless of the actual number of total dwelling units for which building permits are issued or the construction alternative selected. 2. What is meant by "Affordable Housinq~~ for warDoses of this Aareement? What are the basic reauirements? Affordable Housing for purposes of this Agreement means a dwelling unit which is restricted to persons or families whose household income is not greater than eighty percent (80%) of the San Diego County median income, adjusted for family size. For example, a family of four could earn no more than $33,050 a year in order to qualify for an Affordable Unit. Each year, this figure is adjusted on the basis of statistics announced by the U.S. Department of Housing and Urban Development. The term V'Affordablelt means that the dwelling unit cannot be rented for an amount that is greater than thirty percent (30%) of eighty percent (80%) of the San Diego County median income. For example, the maximum rent that could be charged to a family of four would be $826. The restriction shall continue to apply for a period of fifteen (15) years from first occupancy of an Affordable Unit, but Aviara may request that the City approve a shorter period of time, based on all the circumstances, and the City may condition the grant of any financial assistance to Aviara on extending the restricted period beyond the 15-year period. The Agreement states that the intention of the parties is that the Aviara Affordable Units shall be constructed and open for occupancy within five (5) years after the date of the Agreement. Aviara and the City will cooperate to the extent feasible to see that the expiration of the restricted period will not unduly burden 2 Category B: 97; Category C: 118; Category D: 192; Category E: 439; and Category F: 552. SUMMARY OF AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING PAGE 3 the tenants of the Affordable Units at the time the use restrictions expire. Special notices will be provided, well in advance of the time Aviara may increase rents, and the parties will attempt to identify alternative affordable housing for those who wish to move. In addition, Aviara will be required to provide moving costs to those who have been in Affordable Units for at least 2 years immediately prior to the expiration of the restrictions (actual costs, not to exceed 60% of the then applicable maximum monthly rent). 3. What is Aviarals Affordable Housina Oblicration? The Agreement permits Aviara to satisfy the Affordable Housing requirement in alternative ways, depending on how the Planning Area has been categorized. A. Catesories B and C. Categories B and C consist of the Aviara Land in Planning Areas 3, 13 and 24, which are areas for which final maps or tentative maps have been approved. There are a maximum 215 dwelling units which Aviara could build in these Planning Areas, 15% of which is 32 Affordable Units. However, even if fewer than 215 dwelling units are constructed, the Affordable Housing obligation for these Categories will be 32 Affordable Units. This obligation may be met by constructing the Affordable Units (prior to the earlier to occur of 10 years after execution of the Agreement or completion of the Aviara Project), paying an in-lieu fee (if such a fee is authorized by the City's Inclusionary Housing Requirements), or otherwise satisfying the requirement in a manner that is consistent with City housing policy and approved by the City. In addition, this obligation may be satisfied through the alternative described in Section 3 of the Agreement (described in Section 5 of this summary, below). B. Categories D, E and F. These categories consist of the Aviara Land in Planning Areas 15 (Category D), 25 through 30 (Category E) and 17 through 33 (Category F). The maximum number of dwelling units which may be constructed by Aviara on these parcels is 1,183. Aviarals Affordable Housing obligation with respect to these Planning Areas is to build a number of Affordable Units equal to 15% of the actual total dwelling units for which building permits are issued, but not less than 160 Affordable Units, regardless of the actual number of building permits. This obligation is subject to the , , SUMMARY OF AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING PAGE 4 alternatives described in Section 3 of the Agreement (described in Section 5 of this summary, below). No building permits for any of the Planning Areas in Categories D and E shall be issued unless Aviara constructs the Affordable Units attributable to Categories D and E, or does the following: (1) Records against Planning Area 19 a deed restriction in favor of the City, restricting Planning Area 19 to Low Income Housing unless and until otherwise approved by the City; and (2) Satisfies any one of the following alternatives with respect to the Affordable Housing obligation relating to Categories D and E: (a) Pays an in lieu fee, to the extent authorized by the city's Inclusionary Housing Requirements (or, if an in lieu fee is not authorized for Categories D and E but is authorized for any other Planning Areas, the delivery of a promissory note in the amount calculated as though the in lieu fee applied, due and payable if the requirements of clause (c), below, are not satisfied within 3 years from the date of issuance of the first building permit for residential property in Categories D or E); or (b) Dedicates all land required for satisfaction of the Affordable Housing obligation attributable to Categories D and E, to the extent the City's Inclusionary Housing Requirements authorize such; or (c) Satisfies each of the following: (i) City approval of a site plan showing where the Category D and E Affordable Units will be located; (ii) Aviara has provided assurances acceptable to the City regarding its commitment to build the Affordable Units, including a time schedule acceptable to the City, providing for a start of construction of the Category D and E Affordable Units within 3 years after issuance of the first building permit for Category D or E; and (iii) Aviara has provided evidence acceptable to the City of its ability to finance the construction of the Category D and E Affordable Units. No building permits for any of the Planning Areas in Category F shall be issued unless Aviara constructs the Affordable Units attributable to Category F or satisfies any one of the following alternatives with respect to the Affordable Housing SUMMARY OF AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING PAGE 5 obligation relating to Category F: (1) Records against Planning Area 19 a deed restriction in favor of the City, restricting Planning Area 19 to Low Income Housing unless and until otherwise approved by the City; and (2) Satisfies any one of the following alternatives with respect to the Affordable Housing obligation relating to Category F as follows: (a) Pays an in lieu fee, to the extent authorized by the City's Inclusionary Housing Requirements; or (b) Dedicates all land required for satisfaction of the Affordable Housing obligation attributable to Category F to the extent the City's Inclusionary Housing Ordinance authorizes such; or (c) Satisfies each of the following: (i) City approval of a site plan showing where the Category F Affordable Units will be located; (ii) Aviara has provided assurances acceptable to the City regarding its commitment to build the Category F Affordable Units; and (iii) Aviara has provided evidence acceptable to the City of its ability to finance the construction of the Category F Affordable Units. 4. Location of Affordable Units. The Aviara Affordable Housing Units are to be constructed eith,er in Planning Area 19 or on an off-site property within the southwest quadrant of the City approved by the City. If any part of the Affordable Units are built on Planning Area 19, the City will consider in good faith waiving its option to acquire for park purposes the excess property identified as Planning Area 32A, and to allow Aviara to use Planning Area 32A in conjunction with Planning Area 19 to provide the Affordable Units. 5. Alternatives for Cateaories B and C. The Affordable Housing obligations for Categories B and C (other than Planning Area 24) will not apply if the City's Inclusionary Housing Requirements do not apply to land for which a tentative map has been approved by the City prior to January 15, 1991, and for which the conditions of approval did not include the Aviara Inclusionary Housing requirements. r SUMMARY OF AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING PAGE 6 In addition, the Affordable Housing obligations will not apply to Categories B and C if Aviara does one of the following within 18 months after entering into the Agreement: (a) Aviara pays to the City a cash sum equal to $1,584,000 -- which may be satisfied by any combination of Aviara paying cash and/or producing or causing to be produced affordable housing units over and above the otherwise required number of units in accordance with a table of equivalency set forth in the agreement3, or (b) Aviara does each of the following: (i) Proceeds in advance of the timetable requiring construction of the Category D, E and F Affordable Units within 3 years of the date of building permits for the market rate dwelling units, and (ii) Presents the City with evidence that it has site control over a site acceptable to the City and assurances and evidence of financing acceptable to the City that Aviara will build all the Affordable Units attributable to Categories D, E and F, such construction to begin not later than 12 months after all necessary approvals are given, and (iii) Commits to build the affordable housing units attributable to Planning Areas D, E and F plus affordable housing units over and above the otherwise required number of units in accordance with a table of equivalency set forth in the agreement, equal in equivalent value to the difference between $1,584,000 and the dollar amount which Aviara pays in cash. The satisfaction of this alternative requirementwillautomatically be deemed to satisfy the affordable housing requirements for Categories D, E and F and will entitle Aviara to the benefits of the Affordable Housing Development Agreement described in Section 6 of this summary. 3 If the total number of dwelling units in Categories B and C are increased above 804, Aviara will be required to increase the number of Affordable Units on a unit-for-unit basis, but may request that the City accept an increase in this monetary equivalent as an alternative. SUMMARY OF AVIARA MASTER PLAN AGREEMENT FOR INCLUSIONARY HOUSING PAGE 7 A table of equivalency contained in the Agreement provides that Aviara will be credited against the $1,584,000 dollar obligation for providing additional Affordable Housing benefits, such as larger units or longer restriction periods, each of which has a monetary equivalent. For example: restricting a unit to Very Low Income (e.g., 50% of the County Median Income) will provide Aviara with a credit of $1,248 per two bedroom unit so restricted per restricted year: providing more than 160 Affordable Units restricted to Low Income occupancy (e.g., 80% of County Median Income) will provide a credit of $1,320 per two bedroom unit per year; and providing three-bedroom or larger Affordable Units will entitle Aviara to a credit of $1,188 per unit per year. 6. Develooment Riuhts Agreement. If Aviara proceeds with the accelerated schedule for the development of Affordable Units, the City will be asked to provide Aviara with certain protections against subsequent enactments relating to affordable housing requirements which would affect the rate, timing or sequence of the development of the Aviara project. A draft Affordable Housing Development Agreement has been prepared, but will not be processed for approval unless Aviara elects to accelerate the schedule for providing the Affordable Units. arb(8/21/92) F: \CORR\MJH\AVIARAMP.MEM AFFORDABLE HOUSING DEVELOPMENT AGREEMENT THIS AFFORDABLE HOUSING DEVELOPMENT AGREEMENT (the l'Agreement*') is entered into as of 1992, by and between AVIARA LAND ASSOCIATES LIMITED PARTNERSHiP, a Delaware limited partnership (nAviaralf) and the CITY OF CARLSBAD, a municipal corporation ("Citytv), with reference to the following facts: A. This is a Development Agreement entered into pursuant to California Government Code Sections 65864 through 65869.5. B. City has enacted Chapter 21.70 of the Carlsbad Municipal Code, establishing procedures and requirements for the consideration of development agreements and setting forth the purposes and procedures for entering into development agreements. C. Aviara Project. Aviara is the developer of certain real property located in the City of Carlsbad, California (the "Aviara Project") and which Aviara Project is the subject of certain development approvals received from City including without limitation: The Master Plan approved by City 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 Diego, California, on June 29, 1989: Amendment to the Master Plan with respect to Phase II of the Aviara Project approved by City on February 19, 1991, Resolution No. 91-60 and Ordinance No. NS-140, as amended; and Tentative Subdivision Map (C.T. 89-37) approved for portion of Phase II of the Aviara Project by Resolution No. 91-60, adopted by the City on February 19, 1991. D. Aviara Land. The Aviara Project consists of three planning phases within each of which are numerous "Planning Areas." Certain residential Planning Areas have been sold or otherwise transferred by Aviara to Merchant Builder Entities and certain non-residential Planning Areas have been transferred to a hotel/golf resort development partnership. Those residential Planning Areas of the Aviara Project which, as of the date first written above, are owned by Aviara or related entity are referred to herein as the "Aviara Land," which includes Planning Areas 3, 13, 15 and 17 through 30, inclusive, and which is described with more particularity on Exhibit rrA1t attached hereto. The term "Aviara Landn shall also include any other residential Planning Area of the Aviara Project which, after the date first written above, reverts to NUOO3503G.DBb 080492 the ownership of or otherwise becomes owned by Aviara or related entity. E. The parties agree that this Agreement shall bind City and Aviara, and any purchaser, assignee, transferee or successor-in-interest as to any portion of the Aviara Land. The parties agree to execute and record against the Aviara Land such memoranda of this Agreement as may be necessary to provide notice of this Agreement to all such parties. F. On September -, 1992, Aviara and City entered into that certain Aviara Master Plan Agreement for Inclusionary Housing, pursuant to duly noticed public hearing (the "Aviara Inclusionary Housing Agreement"). The parties have recognized that, if Aviara elects to proceed under and satisfies the special conditions set forth in Section 3.2.2(b) thereof (tlAccelerated Affordable Housing"), Aviara would be providing a substantial amount of Affordable Housing which will be of significant benefit to City, and that Aviara would be doing so substantially in advance of the required timetable for the production of affordable housing in accordance with the otherwise applicable Inclusionary Housing Requirements (as therein defined). The parties recognize that, if Aviara so proceeds, Aviara would be incurring substantial costs and taking substantial risks. It is the intent of the parties that, if Aviara so proceeds, it should be entitled to protection in the form of benefits conferred by this Agreement. G. On 1992, the City Council of City held a duly noticed public hharing concerning this Agreement and adopted Ordinance No. the (*@Enacting Ordinance") enacting this Agreement as its legislative act, found this Agreement to be consistent with the City General Plan and the Local Coastal Plan for the City as certified by the California Coastal Commission. H. In consideration of the substantial public improvements and benefits to be provided by Aviara electing to proceed pursuant to the Accelerated Affordable Housing, and in order to encourage Aviara to so elect, and in order to strengthen the public planning process and reduce the economic costs of development, and to reinforce the City's growth management plan, and to further the interest of City in obtaining the production of Affordable Housing on an accelerated basis, all of which will be of benefit to the City and its residents, by this Agreement City intends to give Aviara assurance that Aviara can complete the Project in accordance with the terms of this Agreement and without regard to the impact of future initiatives, moratoria or other ordinances or actions affecting the rate, timing or sequences of development. In reliance upon City's covenants set forth in this Agreement concerning the development of the Aviara Land, NUOD3503G .DB6 080692 -2- I . - . -. . Aviara has and will in the future incur substantial costs in complying with the extra conditions pursuant to the Accelerated Affordable Housing. Such compliance and the City's expectations constitute consideration for this Agreement and but for said commitments on the part of City, Aviara would not enter into this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Propertv Subiect to Aareement. All of the Aviara Land shall be subject to this Agreement. The parties hereto intend that the provisions of this Agreement shall constitute covenants which shall run with the Aviara Land and shall bind and inure to the benefit of all successors in interest to the parties hereto. 2. Term. The term of this Agreement shall commence on the effective date of the Enacting Ordinance and shall expire on the tenth anniversary thereof, unless extended or sooner terminated as hereinafter provided. Upon request by Aviara, the City Council may by resolution, without the necessity for an additional ordinance or public hearing, grant one or more extensions, each for a term not to exceed the length of the original term'hereof, on condition that the City Council finds all of the following: (i) Aviara is meeting or has met its obligations under this Agreement: and (ii) in light of all the circumstances, including without limitation the benefits which the City has received from the performance by Aviara with respect to the Project referred to in Recital H above, it is in the public interest to continue the Agreement. 3. Aviara's Condition Precedent. Notwithstanding the commencement of the term of this Agreement, Aviara shall not be entitled to the benefit of this Agreement until and unless the condition referenced in this Section 3 (the Vondition Precedent") has been satisfied. The Condition Precedent shall be both (i) the election by Aviara to proceed under the special conditions for Accelerated Affordable Housing set forth in Section 3.2.2(b) of the Aviara Inclusionary Housing Agreement, and (ii) the performance by Aviara to satisfy such special conditions. 4. Protection for Aviary of the Condition Precedent as specified Subject to satisfaction in Section 3 above, Aviara shall be entitled to the-following protection as specified in this Section 4: 4.1. Should an ordinance or other measure be enacted after September 1, 1992 (the date of the public hearing at which the Aviara Inclusionary Housing Agreement was approved NUDD3503G.DG6 080492 -3- i by City) and prior to expiration or termination of the term of this Agreement, whether by action of the City Council, by initiative or otherwise, having to do with or pertaining to (in whole or in part) the subject matter of Low Income Housing or Very Low Income Housing (as defined in the Aviara Inclusionary Housing Agreement), and which relates to or by its effect but for this Agreement would restrict the rate, timing or sequences of the development or construction of all or any parts of the Aviara Project, City agrees that such ordinance or other measure shall not apply to the Aviara Project. Other than the foregoing, the Project shall be subject to the effect of any future amendments to or changes in the rules, regulations, ordinances and official policies of City. 4.2 The review otherwise specified by Section 4.2 of the Aviara Inclusionary Housing Agreement shall not occur until the tenth anniversary of the effective date of such agreement; provided, however, that nothing contained in this Agreement shall be deemed to waive or affect in any way the City's rights relating to periodic review of development agreements pursuant to Section 21.70.140 et sea. of the Carlsbad Municipal Code. 5. P. e Performance by either party of its obligations under this Agreement shall be excused during any period of delay caused at any time by reason of acts of God or civil commotion, riots, strikes, picketing or other labor disputes, shortage of materials or supplies, damage to work in progress by reason of fire, floods, earthquake or other casualty, restrictions imposed or mandated by governmental or guasigovernmental entities, enactment of conflicting laws, litigation, acts or neglect of the other party, or any other cause beyond the reasonable control of a party. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. The term of this Agreement and the time deadline for such performance shall be extended by the period of any such delay. 6. Default and Remedies. 6.1 Events of Default. Subject to any extensions of time by mutual consent of the parties, and subject to the provisions of Section 5 above regarding permitted delays, any failure by either party to perform any material term or provision of this Agreement shall constitute an event of default ("Event of Default") (i) if such defaulting party does not cure such failure within thirty (30) days following its receipt of notice of default from the other party, where such failure is of a nature which can be cured within such thirty (30) day period, or (ii) if such failure is not of a nature which can be cured within such thirty (30) day period, the defaulting party does not within such thirty (30) NUDD35D3G .DBb 080492 -4- I I . _- . . day period commence substantial efforts to cure such failure and diligently prosecute the same to completion. Any notice of default given hereunder shall specify in detail the nature of the failure in performance which the noticing party claims constitutes the Event of Default and the manner in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of termination of this Agreement or institution of legal proceedings with respect thereto. 6.2 Remedies. Upon the occurrence of and failure to timely cure an Event of Default, the nondefaulting party shall have the right, in addition to all other rights and remedies available at law or in equity, to bring any proceeding in the nature of specific performance, injunctive relief, mandamus or in equity as may be permitted by the laws then in effect or this Agreement regarding the defaulting party's failure to perform its agreements, obligations or undertakings hereunder. In addition, upon the occurrence of and failure to timely cure an'Event of Default, the nondefaulting party shall have the right to terminate this Agreement. 7. Transfers and Assianments. 7.1 Riaht to Assian. Aviara shall have the right to sell, mortgage, hypothecate, assign or transfer (t8Transfer18) the Aviara Land in whole or in part to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement. In connection with any such Transfer, Aviara shall also have the right likewise to Transfer its rights under this Agreement as pertain to the Aviara Land or the applicable portion thereof. 7.2 It is understood and agreed by the parties that a portion of the Aviara Land has been subdivided and that remaining portions of the Aviara Land may be subdivided after the effective date of this Agreement. One or more such subdivided parcels may be Transferred to persons for development by them in reliance upon the provisions of this Agreement. The obligations of Aviara and any such transferees are several and not joint. Noncompliance by any such transferee with the terms and conditions of this Agreement or with applicable City rules and regulations shall not be deemed to be a default hereunder or grounds for termination hereof, or constitute cause for the City to initiate enforcement action against other persons then owning or holding interest in the Aviara Land or any portion thereof, and not themselves in default hereunder. NU003503G.DG6 080492 -5- , I . . a. Amendment. This Agreement may be canceled, modified or amended by mutual consent of the parties in writing in the manner provided for in Section 21.70.120 of the Carlsbad Municipal Code, or by the City in the manner provided for in Section 21.70.160 or in Section 21.70.190 of the Carlsbad Municipal Code. In the event of termination, the provision of Sections 21.70.170 and 21.70.180 of the Carlsbad Municipal Code shall apply. 9. Notices. Any notice to either party shall be in writing and given by delivering the same to such party in person or by sending the same by registered or certified mail, return receipt requested, with postage prepaid, to the party's mailing address set forth below: If to Aviara, then to: D.L. 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 Either party may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 10. vAareement. This Agreement and the Exhibits attached hereto contain the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement, any prior correspondence, memoranda, agreements, warranties or NU003503G .DB6 080492 -6- I representations are superseded by this Agreement and the Exhibits attached hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership BY Aviara Land Company, a Delaware corporation, General Partner BY Republic Development Company, a California corporation, General Partner BY CITY OF CARLSBAD, a Municipal corporation BY Claude A. Lewis, Mayor City of Carlsbad APPROVED AS TO FORM: Ronald R. Ball, City Attorney ATTEST: Aletha L. Rauten Kranz, City Clerk NUOO3SO3G.DG6 080492 -7- State of California County of 1 ) ss. 1 On , before me, I a notary public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instruments. WITNESS my hand and official seal. Signature (Seal) State of California County of 1 ) ss. 1 On , before me, I a notary public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instruments. WITNESS my hand and official seal. Signature (Seal) NWO3S03G.DG6 080692 -a- State of California County of ) ) ss. 1 On , before me, a n&ry public in and for said state, personally appeared I personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribea to the within instrument and- acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instruments. WITNESS my hand and official seal. Signature (Seal) MU0035036 .OG6 080492 -9- EXHIBIT A PLANNING AREA 3 LEGAL DESCRIPTION Lots 101 through 126 of Carlsbad Tract 85-356 according to map thereof No. 12411, in the City of Carlsbad, County of San Diego, State of California. PLANNING AREA 13 LEGAL DESCRIPTION Lots 234 Through 301 of Carlsbad Tract 8535D according to map thereof No. 12412, together with Parcels 3 and 4 of Carlsbad Minor Subdivision 834 according to Parcel Map thereof No. 16451, all in the City of Carlsbad, County of San Diego, State of California. PLANNING AREA 15 LEGAL DESCRIPTION Parcel 6 of Carlsbad Minor Subdivision 834 according to parcel map thereof No. 16451, in the City of Carlsbad, County of San Diego, State of California. PHASE III - AVIARA PLANNING AREAS 17 - 23 LEGAL DESCRIPTION THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 22, THE NORTH HALF OF SECTION 27, ALL IN TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, AS SHOWN ON RECORD OF SURVEY NO. 10774, RECORDED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, OCTOBER 30,1986 AS FILE NO. 86-494180 OF OFFICIAL RECORDS. EXCEPTING THEREFROM ALL THAT PORTION OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 22, CONVEYED TO THE CITY OF CARLSBAD BY THAT CERTAIN GRANT DEED (PARK SITE), RECORDED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, JUNE 29,1989 AS FILE NO. 89-345769 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM ALL THOSE PORTIONS OF THE NORTH HALF OF SAID SECTION 27, LYING WITHIN THOSE MAPS KNOWN AS CITY OF CARLSBAD TRACT 85-35, AVIARA PHASE I, UNITS A, B, C, D AND E, ACCORDING TO MAPS THEREOF NOS. 12409, 12410, 12411, 12412 AND 12413 RESPECTIVELY, FILED JUNE 29, 1989. ALSO EXCEPTING THEREFROM THE EAST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER AND THE WEST HALF OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. ALSO EXCEPTING THEREFROM ALL THAT PORTION OF SAID NORTH HALF OF SECTION 27 LYING WESTERLY OF A LINE DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTHERLY LINE OF SAID SECTION 27, DISTANT THEREON NORTH 86058 ’ 38” WEST 659.33 FEET (RECORD NORTH 8705 1’ 00” WEST 659.35 FEET) FROM THE NORTH QUARTER CORNER THEREOF, AS SHOWN ON SAID RECORD OF SURVEY MAP NO. 10774; THENCE ALONG THE BOUNDARY OF SAID RECORD OF SURVEY MAP NO. 10774, SOUTH 0006 WEST 1340.75 FEET TO AN ANGLE POINT THEREIN; THENCE SOUTH 87029 ’ 59” EAST (RECORD SOUTH 87030 ’ 08” EAST) 372.00 FEET; THENCE LEAVING SAID BOUNDARY SOUTH 2°30’01” WEST 326.73 FEET TO A POINT ON THE NORTHERLY LINE OF ALGA ROAD AS DESCRIBED IN THE HEREIN ABOVE MENTIONED EASEMENT DEED TO THE CITY OF CARLSBAD, AND BEING THE POINT OF TERMINUS. PLANNING AREA 24 LEGAL DESCRIPTION TEOSE PORTIONS OF SECTIONS 22 AND 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 27, AS SHOWN ON RECORD OF SURVEY MAP NO. 10774, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1986 AS FILE NO. 86-494180 OF OFFICIAL RECORDS; THENCE ALONG TEE BOUNDARY OF SAID RECORD OF SURVEY MAP NO. 10774, SOUTH 86.58'38" EAST 236.30 FEET TO THE POINT OF INTERSECTION OF SAID BOUNDARY LINE WITH TEE NORTHEASTERLY LINE OF THAT CERTAIN PARCEL OF LAND SHOWN AS "PARCEL K-l" AS DESCRIBED IN THE EASEMENT DEED TO THE CITY OF CARLSBAD, RECODED JUNE 29, 1989 AS FILE NO. 89-345765 OF OFFICIAL RECORDS, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE BOUNDARY OF SAID RECORD OF SURVEY MAP NO. 10774, SOUTH 86.58'38" EAST 1082.37 FEET TO AN ANGLE POINT THEREIN; THENCE NORTH 1.49'19" WEST 331.07 FEET TO AN ANGLE POINT: THENCE SOUTH 86.57'12" EAST 660.57 FEET TO AN ANGLE POINT: THENCE SOUTH 1'36'47" EAST 330.69 TO A POINT ON THE NORTHERLY LINE OF SAID SECTION 27; THENCE CONTINUING ALONG THE BOUNDARY OF SAID RECORD OF SURVEY MAP NO. 10774, SOUTH 0~06'50" WEST 1340.75 FEET TO AN ANGLE POINT THEREIN; THENCE SOUTH 87.29'59" EAST (RECORD SOUTH 87.30'08" EAST) 372.00 FEET; THENCE LEAVING SAID BOUNDARY SOUTH 2.30'01" WEST 326.73 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY OF ALGA ROAD AS DESCRIBED IN "PARCEL B" OF THE HEREIN ABOVE MENTIONED EASEMENT DEED TO THE CITY OF CARLSBAD; THENCE ALONG SAID RIGHT-OF-WAY NORTH 59.47'00" WEST 392.51 FEET TO THE BEGINNING OF A TANGENT 1001.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE NORTHWESTERLY AND WESTERLY ALONG SAID CURVE 474.04 FEET THROUGH A CENTRAL ANGLE OF 27'08'00"; THENCE TANGENT TO SAID CURVE NORTH 86*55'00" WEST 354.22 FEET TO THE BEGINNING OF A TANGENT 799.00 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY; THENCE WESTERLY, NORTHWESTERLY AND NORTHERLY ALONG SAID CURVE 1020.71 FEET THROUGH A CENTRAL ANGLE OF 73'11'40"; THENCE TANGENT TO SAID CURVE 13.43'20" WEST 338.79 FEET; THENCE NORTH 14.43'00" WEST 355.88 FEET TO A POINT ON THE RIGHT-OF-WAY OF POINSETTIA LANE AS DESCRIBED IN "PARCEL A" OF THE HEREIN ABOVE MENTIONED EASEMENT DEED TO THE CITY OF CARLSBAD, SAID POINT ALSO BEING THE BEGINNING OF A TANGENT 25.00 -l- . FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE ALONG SAID RIGHT-OF-WAY AND NORTHERLY NORTHEASTERLY AND EASTERLY ALONG SAID CURVE 38.18 FEET THROUGH A CENTRAL ANGLE OF 87'30'00"; THENCE RADIAL TO SAID CURVE NORTH 17*13'00" WEST 51.00 FEET: THENCE SOUTH 72.47'00" WEST 2.76 FEET; THENCE NORTH 17*13'00" WEST 51.00 FEET TO THE BEGINNING OF A NON-TANGENT 25.00 FOOT RADIUS CURVE CONCAVE NORTHERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 17*13'00" EAST; THENCE WESTERLY, NORTHWESTERLY AND NORTHERLY ALONG SAID CURVE 38.42 FEET THROUGH A CENTRAL ANGLE OF 88.03'39" TO THE TRUE POINT OF BEGINNING. -2- PHASE II PLANNING AREAS 25 - 30 LEGAL DESCRIPTION BEING A SUBDIVISION OF A PORTION OF SECTIONS 27, 28, 33 AND 34 ALL IN TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN TEE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT TBEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID SECTION 27! DISTANT THEREON SOUTH 0.34'09" WEST 230.98 FEET FROM TRE NORTHWEST CORNER TBEREOF, SAID POINT ALSO BEING TEE INTERSECTION OF SAID WESTERLY LINE AND THE SOUTHERLY LINE OF TEAT CERTAIN EASEMENT FOR PUBLIC ROAD RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989 AS FILE NO. 89-345765 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHERLY AND SOUTHWESTERLY LINE OF SAID EASEMENT, NORTH 72'47'00" EAST 161.47 FEET TO THE BEGINNING OF A TANGENT 25.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHEASTERLY, EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE 40.36 FEET THROUGH A CENTRAL ANGLE OF 92'30'00"; THENCE TANGENT TO SAID CURVE SOUTH 14D43'00' EAST 689.57 FEET TO TEE BEGINNING OF A TANGENT 901.00 FOOT RADIUS CURVE CONCAVE NORTEEASTERLY; THENCE SOUTHEASTERLY AND EASTERLY ALONG SAID CURVE 1135.38 FEET THROUGE A CENTRAL ANGLE OF 72'12'00"; THENCE TANGENT TO SAID CURVE SOUTH 86'55'00" EAST 217.41 FEET TO THE MOST NORTHERLY CORNER OF CITY OF CARLSBAD TRACT NO. 85-35 (AVIARA PHASE 1 - UNIT E), ACCORDING TO MAP THEREOF NO. 12413, FILED IN THE OFFICE OF THE COUNTY RECORDER, JUNE 29, 1989; THENCE ALONG TRE WESTERLY BOUNDARY THEREOF SOUTH 47'10'50" WEST 350.89 FEET; THENCE SOUTE 40'43'12" WEST 605.23 FEET; THENCE SOUTB 17'45'00" EAST 846.44 FEET: THENCE SOUTH 16*4S'OO" WEST 112.44 FEET: THENCE SOUTH 12'58'00" EAST 1804.79 FEET: THENCE SOUTH 31'51'00" EAST 700.07 FEET: THENCE SOUTH 6.33'30" EAST 495.49 FEET; THENCE SOUTH 14.29'30' WEST 519.43 FEET TO AN ANGLE POINT THEREIN, SAID POINT ALSO BEING A POINT IN THE AGREED BOUNDARY OF THE TITLE SETTLEMENT AND EXCEANGE AGREEMENT AND CONVEYANCE OF PUBLIC ACCESS EASEMENT, RECORDED JUNE 10, 1988 AS FILE NO. 88-278452 OF OFFICIAL RECORDS: THENCE ALONG SAID AGREED B0UNDARY.NORTH.20'30'00" WEST 117.43 FEET; THENCE NORTH 85*00'00" WEST 71.00 FEET: TRENCE SOUTE 25'30'00" WEST 223.00 FEET; THENCE SOUTE 10'45'00" EAST 53.00 FEET; TBENCE SOUTH 33=30'00" WEST 146.00 FEET: THENCE SOUTH 55'30'00" WEST 52.00 FEET: THENCE SOUTE 77.30'00" WEST 358.00 FEET; THENCE SOUTH 55*10'00" WEST 167.00 FEET: THENCE SOUTH 75'58'00" WEST -10 42.00 FEET: THENCE NORTH 83*56'00" WEST 117.00 FEET; THENCE NORTH 73'50'00" WEST 99.00 FEET: THENCE NORTH 79*50'00" WEST 147.00 FEET; THENCE NORTH 74.10'00" WEST 190.00 FEET; THENCE NORTH 68'56'02" WEST 346.00 FEET: THENCE NORTH 73.16'26" WEST 174.03 FEET; THENCE NORTH 84.00'00" WEST 124.00 FEET; THENCE SOUTH 78*00'00" WEST 447.00 FEET; THENCE NORTH 83.00'00' WEST 123.73 FEET: THENCE NORTH 32.17'46' WEST 561.76 FEET; THENCE NORTH 69.15'09" WEST 228.25 FEET TO A POINT ON THE WESTERLY LINE OF THE EAST HALF OF THE NORTHEAST QUARTER OF SAID SECTION 33, DISTANT THEREON SOUTH 0.43'34" EAST 788.20 FEET FROM THE NORTEWEST CORNER OF SAID EAST BALF, AS SAXD POINT IS SHOWN ON RECORD OF SURVEY MAP NO. 10774, FILED IN TBE OFFICE OF SAID SAN DIEGO COUNTY RECORDER, OCTOBER 30, 1986 AS FILE NO. 86-494180 OF OFFICIAL RECORDS: THENCE ALONG THE BOUNDARY OF SAID RECORD OF SURVEY NO. 10774, NORTH 0.43'34" WEST 788.20 FEET; THENCE NORTH 0'31'09' EAST 1357.67 FEET; THENCE SOUTH 89'08'21' EAST 1358.22 FEET; THENCE NORTH 23.17'49' EAST 157.02 FEET; THENCE SOUTH 83.48'32" EAST 182.90 FEET; THENCE NORTH 63'48'24" EAST 118.59 FEET; THENCE NORTH 46.13'59' EAST 66.87 FEET: THENCE NORTH 21*18'51' EAST 78.99 FEET; THENCE NORTH 14.41'04' WEST 271.89 FEET; THENCE NORTH 26'24'56" WEST 112.98 FEET; THENCE NORTH 44.10'38' WEST 189.09 FEET; THENCE NORTH 36'53'26" WEST 81.01 FEET: THENCE NORTH 17.21'54" WEST 96.54 FEET; TBENCE NORTH 7.59'33' WEST 108.38 FEET; THENCE NORTH 3'53'04" EAST 180.75 FEET: THENCE NORTH 35.32'01" WEST 142.05 FEET TO TBE EAST QUARTER CORNER OF SAID SECTION 28; TBENCE CONTINUING ALONG SAID BOUNDARY LINE NORTH 0.34'09' EAST 2485.34 FEET TO TBE POINT OF BEGINNING. -2- . ’ I ~V1AR.A lJlz4STER-m FOR INCLUSIONARY HOUSING -This Aviara Master Plan Agreement for Inclusionary 1-a Housing (this -*.“*Y”*“..Y&~ "Agreementn) is entered into as of September -, L of Seatember -, 1992, by and between Aviara Land Associates Limited Partnership, a Delaware limited partnership ("Aviara"), and the CITY OF CARLSBAD, California, I), and the a municipal corporation ("City"), 1 fnCitv"l. with respect to the recitals set forth in Section 1 below: SECTION 1% 1.1 Aviara Proiect. Aviara is the developer of certain real property located in the City of Carlsbad, California (the “Aviara ProjecV) and which Aviara Project is the subject of certain development approvals received from City including without limitation: The Master Plan approved by City 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 Diego, California, on June 29, 1989; Amendment to the Master Plan with respect to Phase 11 of the Aviara Project approved by City on February 19, 1991, Resolution No. 91-60 and Ordinance No. NS- 140, as amended; and Tentative Subdivision Map (C.T. 89-37) approved for portion of Phase II of the Aviara Project by Resolution No. 91-60, adopted by the City on February 19, 1991. 1.2 -a Iand. The Aviara Project consists of three planning phases within each of which are numerous "Planning Areas." Certain residential Planning Areas have been sold or otherwise transferred by Aviara to Merchant Builder Entities and certain non-residential Planning Areas have been transferred to a hotel/golf resort development partnership. Those residential Planning Areas of the Aviara Project which, as of the date first written above, are owned by Aviara or related entity are referred to herein as the "Aviara Land," which includes Planning Areas 3, 13, 15 and 17 through 30, inclusive. The term "Aviara Land" shall also include any other residential Planning Area of the Aviara Project which, after the data first written above, reverts to the ownership of or otherwise becomes owned by Aviara or related entity. Aviara agrees that this Agreement shall bind Aviara and any purchaser, assignee, transferee or successor-in-interest as to any portion of the Aviara Land. The parties agree to execute and record against the Aviara Land such memoranda of this Agreement as may be necessary to provide notice of this Agreement to all such parties. liUoma3P.016 080692 -I- PI-wiou Draft/tlkluiomry Housing On192 r Exhibit entitled . 1.3 m elODment of Aviary unu Attached hereto as “An and &orporated herein by refirence is a table ?City of Carlsbad-Inclusionary Housing Reguirement- Aviara Master Plan." The table has been divided into six vertical columns, identified by capital letters, one for each of six categories each of which reflects a different stage of development for respective Planning Areas enumerated therein. 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 development. Within each of the six categories, the column headed by the initials "PA@' refers to one or more Planning Areas by number: and the column headed by the initials 18DUn refers to the number of the Dwelling Units contemplated for such respective Planning Area. The listing of Planning Areas in respective categories is intended by the parties to set forth the respective stage of development for each such Planning Area as of the date first written above. (e.g., For convenience herein, the term "Category a Category 8) shall refer to properties vithin se Planning Areas listed within the respective category column identified by letter on Exhibit “A.” Said table reflects: (a) as to Categories B and C, the actual number of dwelling units contemplated by the parties based on the actual numbers shown on final maps or approved tentative maps; (b) as to Categories D and F, the theoretical maximum number of dwelling units authorized for the respective Planning Areas therein as set forth in the Aviara Master Plan: and (c) as to Category E, the actual number of dwelling units shown in approved tentative maps (for Planning Areas 25, 26, 27 and 29 for which such approvals have been achieved), and otherwise the theoretical maximum as set forth in the Aviara 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 approved tentative maps will probably be significantly lesser than the master plan maximums. The parties agree that the number of dwelling units reflected in the table is subject to change from time to time as the Aviara Project is developed, and that the Inclusionary Housing Requirements shall be calculated on the basis of the actual number of dwelling units for which building permits are issued, rather than estimates. From time to time, as such changes occur, Aviara shall submit to the City a modified Exhibit “An reflecting the updated estimates of numbers of dwelling units to be developed in various Planning Areas, as well as the actual number of dwelling units authorizeci by final maps for various Planning Areas. In addition, the parties -20 Prevlou Drrft/Incluiamy Howin 01J192 C agree that Exhibit "An reflects the current status of development of the various Planning Areas, but that requests for changes to any approvals previously given by the city as to any particular Planning Area shall not result in such Planning 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 to a tentative or final map for a Planning Area in Category C for which a tentative map has previously been approved, then if the change so rquested results in an increase in the number of dwelling units authorized for such Planning Area above that which is then set forth in Exhibit WAw for the previous final map, there shall be added to the Aviara Affordable Units a number of low and moderate income housing units equal to fifteen (152) of such increase. . 1.4 Aviara Inclusionarv ConditLQn On February 19, 1991, City conditioned the final map approvai of Tentative Subdivision Map C.T. 89-37 upon the satisfaction of the following (the "Aviara Inclusionary Condition"): "Prior to final map approval for the Phase II 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 utentions of Partieg It is the intention of the parties hereto that upon executik hereof, the Aviara Inclusionary Condition shall be deemed satisfied. The parties further intend that upon satisfaction of Aviara's obligations hereunder, the requirements of the Inclusionary Housing Requirements (as defined herein) shall be deemed to have been met as to the Aviara Land. For purposes of this Agr esment, the "Inclusionary Housing Requirementsa means that certain Resolution No. 91-22 adopted January 15, 1991 by the City Council of the City requiring as a condition to development of master and specific planned communities the inclusion of very low or low income housing, as such Resolution is amended from 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 or moderate income housing units as a condition to development of (among other things) master and specific planned communities, including without limitation the adoption of a revised Housing Element 1991-1996 as a part of the City of Carlsbad General Plan. WADDSDS1.0&6 om692 -30 Pmvbu Draft/lmluiancy llowino OTJl92 . 1.6 Certain D efinitiong It is the intention of the parties -that the following definitions shall apply for purposes of this Agreement: - 7. :- 1.6.1 "Low Income Affordable Rent" shall mean a rental rate not greater than thirty percent (30%) of eighty percent (80%) of the median family income for San Diego County, adjusted for family size and revised annually. 1.6.2 "Low Income Housingff shall mean rental housing units intended for persons and families whose income is in the range defined herein as Low Income. 1.6.3 Tow Income" shall mean income more than fifty percent of but not greater than eighty percent of the median family income for San Diego County, adjusted for family size and revised annually. 1.6.4 "Very Low Income Affordable Rent' shall mean rental not greater than thirty percent (30%) of fifty percent (50%) of the median family income for San Diego County, adjusted for family size and revised annually. 1.6.5 “Very Low Income Housing" shall mean rental housing units intended for persons and families whose incomes are in the range defined as Very Low Income. 1.6.6 "Very Low Income" shall mean income less than fifty percent of the median family income for San Diego County, adjusted for family size and revised annually. 1.6.7 Attached hereto as Exhibit "Br is a table which the parties agree sets forth the income limits for families of various sizes, at the percentage levels of fifty percent (SO%), and eighty percent (80%), respectively, of the median family income for San Diego County as most recently determined in April, 1991. The parties acknowledge that these income limits are and will be revised annually. NOW THEREFORE, in light of the recitals set forth in Section 1 hereof (which the parties hereto agree are true), and the mutwl promises contained herein, the parties agree as follows: 2.1 provision of Aff-le Hous- With respect to the Aviara Land, Aviara’s proportional shar; of the City's total obligation for very low, low and moderate income housing units is hereby established as follows: NlhDD3$0% .DM Dmw2 -49 Pmiaa Drrtt,lndula& H-ffW 073192 . exempt from the 2.1-l It is acknowledged that Category A is Inclusionary Housing Requirements. For those Planning-Areas which are listed within Categories B or c on Exhibit ‘An and which are part of the Aviara Land (being Planning-Areas 3, 13 and 24), Aviara's proportional share shall be thirty-two (32) low income housing units, said number being equal to fifteen percent (15%) of the aggregate of all such Aviara Land Planning Areas. Prior to completion of the Aviara Project, in addition to any other construction pursuant to the Aviara Master Plan, Aviara shall (except to the extent excused by Section 3.2) either (i) construct or cause to be constructed 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 in lieu fees or dedication of land or a combination thereof, if and to the extent the Inclusionary Housing Requirements so permit, or (iii) otherwise satisfy Aviara's proportional share in a manner consistent with City Housing policies and approved by the City. 2.1.2 With respect to those Planning Areas listed in Categories 0, E and F of Exhibit nA,n it shall be the obligation of Aviara prior to the earlier to occur of completion of the Aviara Project or ten (lO)years from the Effective Date, in addition to any other construction pursuant to the Aviara Master Plan, to construct or cause to be constructed low income housing units at a number equal to the greater of one hundred sixty (160) or fifteen percent (15%) of the aggregate number of building permits actually issued by City for construction within such Planning Areas. If Planning Area 19 is used as the site of low income housing units, then only the building permits issued by City as to Planning Area 19 for dwelling units which are not restricted to low income housing pursuant to this Agreement shall be considered for the purpose of such computation. 2.1.3 The aggregate number of low and moderate ' income housing units which Aviara is required to construct or cause to be constructed pursuant to Sections 2.1.1 and 2.1.2, as the same may be increased pursuant to the ultimate sentence of Section 1.3, is herein referred to as the "Aviara Affordable Units." 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 income adjusted for family size and revised annually. Aviara may elect to establish lower rental rates for the purpose set forth in Section 3.2.2(b)(l), and, if so, then City shall be entitled 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. tWDD35DSt.016 omm2 iz, Pmiam Dnft/Imluionrry Hamin 073192 2.2 mcation of Affordable Houslnq 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. Pursuant to such Master Plan, City has the option to acquire such property ("Park Reserve Property") by purchase at any time prior to July 1, 1995. City agrees that if Aviara elects to proceed with any or all of the Aviara Affordable Units on Planning Area 19, then, if requested by Aviara to do so, City shall consider in good faith (i) waiving and surrendering such option with respect to such Park Reserve Land and (ii) allowing the site plan and other applicable land use applications, maps and processes for the Aviara Affordable Units to include such Park Reserve Land in conjunction with and effectively as a part of Planning Area 19. In the event that City so elects to allow the use of the Park Reserve Land, then all of the other provisions of this Agreement which are applicable to Planning Area 19 shall apply with equal force to such Park Resente Land. In such event, then for purposes of the percentage computation 'in the first sentence of Section 2.1.2, such Park Reserve Land i shall be considered as if it were a part of Planning Area 19 ' and there shall be no requirement of any additional very low or low income housing units for the Aviara Land by virtue of any proposed construction or construction of such units on the Park Reserve Land. 2.3 Modifications to Develomnt Stand- Existing provisions of the Master Plan for the Aviara'Project, and existing provisions of the development standards of City including without limitation the growth management ordinances and City Council Policy number 43, contemplate density transfer in certain circumstances. The parties acknowledge that pursuant to such ordinances and such Policy, affordable housing is the first priority for the use of density transfers. In that context, the City shall consider in good faith, in light of all of the circumstances, and not unreasonably withhold its approval, any requests by Aviara to apply the principles of density transfer to the development and construction of the Aviara Affordable Units on Planning Area 19, or on an offsite property approved by City pursuant to Section 2.2, so as to maximize the number of the Aviara Affordable Units to be COnStrUCted thereon. In connection with such development and construction of the Aviara Affordable Units, whether on . Planning Area 19 or on an off-site property, City shall also consider in good faith granting a density bonus, waiving and/or relaxing its development standards, modification of zoning or wuoo3503P.016 06w92 Previou Or~tt/lnluiamw Naming 073192 other regulatory requirements (including but not limited to set-back requirements, height limitations and fees) and expeditfig the entitlement process. . -'--2.4 Control bv Cftv of Aviara Affordable ~ous~lg . 2.4.1 Cateaories D and E for any of the Planning Areas in Categories No building permits D and E shall. be issued unless and until the deed restriction referred to in Section 2.4.4 has been delivered to City and one of the following has been satisfied for a number of low income housing units equal to fifteen percent (15%) of the number of aggregate dwelling units authorized by the final maps and approved tentative maps for Planning Areas within Categories D and E: (a) Payment of the full amount of in lieu fees required for satisfaction of the Inclusionary Housing Requirements attributable to Categories D and E, if and to the extent such in lieu fees are authorized by the Inclusionary Housing Requirements (or, if the Inclusionary Housing Requirements do not authorize in lieu fees for properties in Categories D and E, but are authorized for any other Planning Areas of the Aviara Land, than this requirement may be satisfied by Aviara delivering a promissory note in the amount calculated as if such in lieu fees did apply to Planning Areas in Categories D and Et and such promissory note shall be due and payable unless the requirements of clause (c) hereof have been satisfied within three (3) years from the date of issuance of the first building permit for residential property within Categories D or E; and such promissory note shall be secured by a first deed of trust in favor of the City encumbering Planning Area 19, which deed of trust shall also secure the performance by Aviara of the conditions set forth in this Section 2.4.1; and such deed of trust shall be released and reconveyed of record by City upon satisfaction by Aviara of the requirements of this Section 2.4.1; (b) Dedication of all land required for satisfaction of the Inclusionary Housing Requirements attributable to Categories D and E, if and to the extent such dedication of land is authorized by the Inclusionary Housing 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 Units attributable to Categories D and E; and (ii) Aviara has provided assurances acceptable to the City of its commitment to build the Aviara Affordable Units attributable to Categories D and E pursuant to a timetable approved by the City which shall, in any case provide for both (A) the start of ConstNctiOn Of all the Aviara Affordable Units attributable to any Planning NUDDSSD3C.DO6 few92 -79 Previar Drrft/Imluiarrry Hamin DTJI92 Area within Categories D or E within three (3) years of the issuance of the first residential building permit attributable to such respective Planning Area and (B) completion of construction of all Aviara Affordable Units attributable to Categoric-D and E within ten (10) years from the Effective Date (subject to extension for delays caused by the city); and (iii) Aviara has provided evidence satisfactory to City of its ability to pay for the cost of such construction. 2.4.2 Catecforv F No building permits for any of the Planning Areas within Catigory F of the Aviara Project shall be issued unless and until either of the following has been satisfied for the balance of the low income housing units required pursuant to Section 2.1.2: (a) Payment of the full amount of in lieu 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 required 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'ing Requirement: 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 Units 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 which 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 provided evidence satisfactory to City of its ability to pay for the cost of such construction. 2.4.3 D Gene-. 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 the same are in effect at the time: provided, however, that the term of such restrictions shall be fifteen (1s) years from the date of first occupancy of any such units, unless a shorter period of time is approved by the City. At the time Aviara applies to the City for a building permit for any such affordable units, Aviara may request that the City approve a shorter termof restrictions than fifteen (15) years. The City agrees to consider any such request in good faith, and shall approve or disapprove such request in light of all factors. Provided further, in the case of any request for direct llUDDSSD3F.086 Dmb92 PrwiaN Draft/I.ncluimwy naming DA192 financial subsidy (such as, revenue bonds as a without limitation, the use of financing device), the City shall have the right to-condition such financial assistance on a term of such restrictions that exceeds fifteen (15) years. It shall be the responsibjlity of the owner of the Aviara Affordable Units to certify as to the eligibility of prospective occupants of the Aviara Affordable Units during the period of restriction pursuant to this Agreement. The parties intend that the Aviara Affordable Units should be constructed and open for occupancy within five years following the effective date of this Agreement. The parties acknowledge, however, that completion depends&upon both (i) timely submittal of plans for such Aviara Affordable Units and for Category F, by Aviara, and (ii) timely processing of such plans by City. 2.4.4 peed Restrictiop. Aviara shall execute and deliver to City an instrument in recordable form to deed restrict Planning Area 19 so that, for the term thereof, Planning Area 19 shall be used only for residential development of Low Income Housing unless otherwise approved by City. Upon satisfaction by Aviara of the conditions set forth in both Sections 2.4.1 and 2.4.2, City shall execute such instruments as shall be necessary to remove said deed restriction of record and the same shall be of no further effect. 2.4.5 Tenants at Unix&ion of ReGrictions . It is the intent of the parties that, to the extent feasible, the expiration of the term of the Affordable Housing restrictions should not unreasonably burden the tenants in the 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 any 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 the 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 the right to increase rents to market levels. (b) Prior to the termination of the restrictions, the City and Aviara (and its successors and assigns) shall cooperate in identifying alternative suitable affordable housing to which Tenants in Residence may relocate. Such replacement units shall be decent, safe and sanitary, and, to the extent feasible, comparable in terms of rent, number of YWD3SDS.016 DsDM2 -90 Prnioua Drrft/tfEluiamry Naiairm DA192 bedrooms and amenities to the Affordable Unit being occupied by 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 the impending termination of the restrictions and whether it intends to increase rents of the Affordable Units upon such termination. (cl In the case of any Tenant in Residence who has occupied an Affordable Unit for at least two years prior to the termination of restrictions and who moves as the result of any increase in rents after such termination and the move is within six (6) months of such termination, Aviara shall pay relocation costs in connection with such Tenant's move to 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 maximum of sixty percent (601) of the then applicable maximum monthly rental chargeable pursuant to the Affordable Housing restrictions for the respective affected Affordable Unit. Other Obliuatlons F - or Plannina Areas in Cateuories B and C . 3.1 Non-Aviara j&&J The parties acknowledge #at as to those Planning Areas whi;h 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 Inclusionary Housing Requirements. As to those residential Planning Areas 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 in Section 3.2, such owners would be required to either (i) construct or cause to be constructed a number of low income housing units equal, in each instance, to fifteen percent (151;) 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 fee8 or dedication of land, if and to the extent that the Inclusionary Housing Requirements so permit. To the extent that the Inclusionary Housing Requirements apply to any of the Residential Planning Areas within Categories B or C which are not part of the Aviara Land, and to the extent that such requirement is not otherwise satisfied by payment of in lieu fees or dedication of land (if and to the extent that the Inclusionary Housing Requirements so permit), then Aviara shall have the right (but not the obligation) to include some or all of the low income housing units required with respect to some or all of such Planning WUDD3SDSC .DB6 08Dm2 Prwiar Draft/lncluhmy Wing -1o- DA192 Areas together With the COnStZuctiOn of the Aviara Affordable Units. 3.2 Bern&ion of Cateffories B and C frog Inclusibn&v Housinu ,Recruirements. 3.2.1 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 event that the Inclusionary Housing Requirements do not apply to land for which a tentative map had been approved by City prior to the adoption by the City Council of City of Resolution No. 910 22 on January 15, 1991 and for which the conditions of approval 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 Housing Requirements in the event that not later than eighteen (18) months from the date first written above, Aviara has done or caused to be done one of the following: (a) Paid to the City the cash sum of One Million Five Hundred Eighty-Four Thousand Dollars ($1,584,000.00) in cash. This requirement may be satisfied in whole or in part by Aviara producing or causing to be produced affordable housing units over and above the requirements set forth in Section 2.1.2, and the credit for which Aviara shall receive towards the monetary equivalent of the dollar amount herein written shall be determined in accordance with the table of equivalency set forth in subparagraph (b) below: or (b) Aviara has done each of the following: (i) identified a site for location and construction of the Aviara Affordable Units attributable to Categories D, E, and F, which site may be in Planning Area 19 or off-site to the extent allowed by Section 2.2; (ii) if such site is not in Planning Area 19, presented City with evidence that Aviara has entered into an escrow to acquire such site, subject to the condition that City approve a site plan thereon for the required number of low income units referred to in this section; (iii) provided assurances acceptable to the City that, conditioned upon City approval for the appropriate number of low income units, Aviara is connaitted to build thereon (A) all the Aviara Affordable Units attributable to Categories D, E, and F plus (B) affordable housing units over and above the requirements set forth in Section 2.1.1 so that the.,credit which Aviara shall receive therefor shall equal or exceed that portion of the dollar amount specified in subparagraph (a) above which has not been paid in cash, all pursuant to a timetable approved by the City which shall, in any case, provide for the start of construction of such units within twelve (12) months of the issuance of all approvals and permits from City, the California MUWSDS.Dls DaDm2 -ll- Prmfiaaa Dr~ft/tntluiamy tlaaina 075192 Coastal Commission and other applicable governmental entities which are necessary-for such commencement of construction; and (iv) provided evidence satisfactory to City of its ability to pay for the cost of such construction. Aviara To the extent that the affordable units proposed by and permitted by City as set forth above in this subparagraph (b) contain any of the following features, then incremental credit shall be given to Aviara toward the monetary sum referred to in subparagraph (a) above, and if the aggregate 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: (1) Each dwelling unit for which the rent is restricted to Very Low Income Affordable Rent shall be deemed to have an incremental value (in addition to any other applicable incremental value) of One Thousand Two Hundred Forty-Eight Dollars ($1,248.00) per two bedroom unit per restricted year. (2) Each dwelling unit for which the rent is restricted to Low Income Affordable Rent, and for which the number of such units exceeds one hundred sixty (160), shall have an incremental value of One Thousand Three Hundred Twenty Dollars ($1,320.00) per two bedroom unit per restricted year. (3) Each three bedroom or larger dwelling unit shall be deemed to have an incremental value (in addition to any other applicable incremental value) of One Thousand One Hundred Eighty-Eight dollars ($1,188.00) per unit per restricted year. (4) However, to the extent that the aggregate of two bedroom or larger units is less than one hundred sixty (160), then each one bedroom dwelling unit used to make an aggregate of one hundred sixty (160) shall be deemed 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 case 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 additional Aviara Affordable Units resulting from application of the ultimate sentence of Section 1.3 hereof shall (except to the extent satisfied by alternative 3.2.3(b)) be satisfied by Aviara producing or causing to be produced affordable housing 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 NUOO35~f .DM Daw92 -120 Pmiam Drdt/Yncluiwmry Nouing 013192 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 Agreement. (b) Aviara may request that its obligation to produce or cause to be produced such additional affordable housing units resulting from the application of the ultimate sentence of Section 1.3 hereof, by payment to the City in the cash sum equal to the product of (I) $49,500.00 multiplied by (ii) the number of additional Aviara Affordable Units so required, and the City shall consider any such request in good faith, in light of all the circumstances, and not unreasonably withhold its approval of such requests. 3.2.4 The satisfaction of the conditions set forth in Section 3.2.2(b) shall also automatically (I) be deemed to satisfy the conditions set forth in subsections 2.4.1 and 2.4.2 with respect to the issuance of the residential building permits for Categories D, E, and F, and (ii) entitle Aviara to the benefits of the Affordable Housing Development Agreement referred to in Section 7.16. ION 4. Term of Aureemenf 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 action of the parties. 4.2 give Year Reviey. The parties wntemp~ate that the Housing Element of the Carlsbad General Plan, including but not limited to those portions thereof as deal with Inclusionary Housing Requirements, will be subject to review in 1996. The parties acknowledge the possibility that such review might result in the adoption of revisions to the Inclusionary Housing Requirements. As to any Planning Area of the Aviara Land for which no building permits have been issued prior to the fifth anniversary of the effective date of the Agreement, such Planning Area shall be subject to any increase in the number of very low, low and moderate income housing units as then required under any such revision to the Inclusionary Housing Requirements. WDDSD3f.016 DnD492 -139 On192 Obli u&rfEf-+ citv 0 5.1 Satisfaction of Affordable Housinu R cruirements and Aviara Inclusionarv Condition. Upon execution zf this Agreement, the Aviara Inclusionary Condition shall be deemed satisfied. Upon satisfaction of Aviara's obligations hereunder, Aviara and the Aviara Land shall be deemed to be in full compliance with the Inclusionary Housing Requirements. 6.1 Notices. Unless otherwise specifically provided in this Agreement, all notices, demands or other communications given hereunder will be in writing and will be deemed to have been duly delivered upon personal delivery or as of the second business day after mailing by United States mail, return receipt requested, postage prepaid and addressed as follows: If to Aviara, then to: D. L. 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. Neil8 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 the others for such purpose in the manner set forth above. Iuoo3SD3f .DB4 Daw92 -140 Pmiou 0rrft/1nc1uiauy Naming 015192 4 General Provisions l 7.1 Authoritv Con r tion of Individuals Siuninu on Behalf of Each person signing this Agreement on behalf of the zoborakon constituting any party warrants that (i) he or she is duly authorized to sign and deliver this Agreement on behalf of the corporation, in accordance with a duly adopted resolution of the board of directors of the corporation or in accordance with the bylaws of the corporation, and (ii) this Agreement is binding upon the corporation in accordance with its terms. 7.2 gc partnership. Each indivikaal signing this Agreement on behalf 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 the provisions of an agreement of partnership for the partnership currently in effect and (ii) this Agreement is binding upon the partnership in accordance with its terms. 7.3 Joint and Se . veral Liutv If either party consists of more #an one person, the liability of each person signing this Agreement will be joint and several. 7.4 canti-. Captions in this Agreement are inserted for convenience of references only and do not define, described or limit the scope or the intent of this Agreement. 7.5 -its. All exhibits referred to in this Agreement and attached hereto are a part of this Agreement. 7.6 mire Aureement. This Agreement and the documents referred to herein contain the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement. This Agreement shall not be effective until executed by all parties hereto. 7.7 -cation r Amendmepf; No modification, waiver or discharge of this Agreement wiil be valid unless it is in writing and signed by the party against which the enforcement of the modification, waiver or discharge is or may be sought. An amendment to this Agreement which provides for the addition of a new participant shall provide that all terms and conditions of this Agreement remain enforceable, and that the new participant shall be bound by the terms of this Agreement. IUDD3503f.086 D8ob92 -1% Previam Drrft/tduiawy HadnO on92 7 commences 1 limitation, .8 Attorn vs' F and Costs itigation zr othzFsproceedings (including without If either party arbitration) for the interpretation, re&ation, enforcement or rescission of this Agreement, the prevailing party wil& be entitled to recover from the other party an amount equal to reasonable attorneys' fees and court and other costs incurred in such action or proceeding, in addition to any other relief awarded to any party therein. party shall be determined by the tribunal in The prevailing such action or proceeding, and if not, then by the then presiding judge of the San Diego County Superior Court. 7.9 Successors All terms of this Agreement will be binding upon and inure to-the benefit of each of the parties and its respective administrators or executors, successors and assigns. instrument Any assignment by either party shall be only by an in writing, with a copy thereof provided by notice to the other party. 7.10 Counternarts. in any number of counterparts, This Agreement may be executed each of which will be deemed to be an original., but all of which together Will constitute one instrument. 7.11 -cable law. This Agreement will be construed and enforced in accordance with the laws of the State of California. This Agreement shall be deemed made and entered into in San Diego County, which shall also be deemed to be the sole proper venue for any action or proceeding relating to the Agreement. . 7.12 &Qperatron it may be necessary to exe&e Aviara and City acknowledge that additional documents or other writings in order to perform their respective obligations hereunder. Aviara and City hereby agree to cooperate with each other by executing such other documents or taking such other action as may be reasonably necessary to implement the purpose of this Agreement. 7.13 No council member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement nor shall any such council member, official or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he, or she is directly or indirectly, interested. 7.14 Aviara warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. NUDDSDSf.DD6 -92 -160 Prwiar Dr~ft/ffklurimmry Itaming QAl92 . .i . .- 7.15 No council member, official, officer, or employee of the City shall be personally liable to Aviara, or any successor in interest, in the event of any default or breach by the City, or on any obligations under the terms of this Agreement. 7.16 &ffordable Housinu Develosment Aureement Attached hereto as Exhibit "Cl@ is the form of an Affordable Housing Development Agreement which is not yet approved by City, but which if so approved shall become effective only in certain conditions which are specified therein. City shall timely process such Affordable Housing Development Agreement in accordance with Chapter 21.70 of the Carlsbad Municipal Code. This Agreement has been executed at Carlsbad, California, as of the date first set forth above. AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, . a Delaware limited partnership By i;TG;,a Delaware corporation, General , By Ree;czJmpany, a California corporation, CITY a Mu City of Carlsbad D AS TO FORM: Ronald R. Ball, q.lq+r. City Attorney ATTEST: Aletha L. Rautenkranz, City Clerk w\AOOb03f.D06 BEOk -170 Prwiaa Drrft/lnctuionrry lbusing oT3192 State of California 1 . &4Q ; ss* , before me, said state, pe personally known to me (e-w whose name@) ) to be the person-) is/are subscribed to the within instrument and acknowledged to me that he/&q&hey executed the same in his/ his,= authorized capacity(w, and that by signature@)- on the instrument the person@) or the entity upon behalf of which the person-@) acted, executed the instruments. WITNESS my hand and official seal. Signature State of California County of (Seal) , before me, id state, p ersonally known to me 70 LY me) to be the person-@+ whose name-@) is/erre subscribed to the within instrument and acknowledged to me that he/she+hey executed the same in * his/v authorized capacity(iesj, and that by . his/v signature) on the instrument the pezsonco) or the entity upon behalf of which the person(sj acted, executed the instruments. WITNESS my hand and official Seal. Signature (Seal) NUllOS503F.DE6 080492 -180 PreviaJa Orrft/Incluiorwry Haaim OT3192 ,- State of California County of- 1 ) 9s. ) On before me, a notary public in and for &id state, personally appeared I personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instruments. WITNESS my hand and official seal. Signature (Seal) N\AOO3503F.D86 080492 -19- Provioua Draft/Inludarury Nousing -* 073192 1 ,8 I r 3 t 1% s s 0 . if 1 i . d i EXHIBIT "B" TABLE OF MEDIAN FAMILY INCOME FOR SAN DIEGO COUNTY APRIL, 1991 Very Low SO5 Low 802 Jncome r,imits 14450 16500 Dcome Limits 23150 26450 18600 29750 20650 33050 22300 35700 23950 38350 25600 40950 27250 43600 W\200357&.086 031792 UFFOROAILE mXISlNG1 (CM-410291