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HomeMy WebLinkAboutCT 02-17; CWV La Costa 49 LLC; 2014-0127215; Affordable Housing Agreement/ReleaseRecording Requested bv: City of Carlsbad When Recorded Mail to: City of Carlsbad City Clerk's Office Attn: City Clerk 1200 Carlsbad Village Drive Carlsbad. California 92008 DOCtt 2014-01272 llllllllllllllllllllllllllllllllllllllllllllllllllllll APR 01, 2014 4:01 PM 5 lllll OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Emest J. Dronenburg, Jr., COUNTY RECORDER FEES: 45.00 PAGES: 11 (Space above for Recorder's Use) AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT ("Agreement") is entered into this \*J-lfhi day of M fiRcU. 2014, by and between the CITY OF CARLSBAD, a municipal corporation ("City"), and CWV La Costa 49, LLC, a Delaware Limited Liability Company ("Developer"), and shall supersede the Affordable Housing Agreement executed on January 10, 2006 between the City and Fair Oaks Valley, a limited liability corporation, with reference to the following: RECITALS A. Developer is the successor in interest to Fair Oaks Valley L.L.C and new owner of certain real property in the City of Carlsbad, County of San Diego, State of Califomia, described in "Exhibit A", which is attached hereto and incorporated herein by this reference, and which is the subject of a Tentative Map CT 02-17, which provides conditional approval of the construction of forty-nine (49) single family dwelling units ("Project"). B. Condition No. 15 of Planning Commission Resolution No. 5954, approving CT 02-17, states that this Affordable Housing Agreement shall be entered into between the City and the Developer as a means of satisfying the Developer's affordable housing obligation, as such is defmed under Chapter 21.85 of the Carlsbad Municipal Code ("Affordable Housing Obligation"). Planning Commission Resolution No. 5954 provides that the affordable housing obligation can be satisfied through the purchase of housing credits (9 total) or by providing seven (7) second dwelling units onsite. The original Affordable Housing Agreement executed on January 10, 2006 and recorded as Document No. 2006-0395073 against the certain real property described in "Exhibit A" of said document, required Fair Oaks Valley L.L.C. to purchase housing credits to satisfy the inclusionary housing requirement for its proposed project. Developer now desires to provide second dwelling units onsite to satisfy Developer's affordable housing obligation for the project, rather than by purchasing housing credits. City and Developer hereby amend and restate the original agreement to require that the affordable housing obligation for Developer of said real property will be satisfied by applying the requirements set forth in this Amended Affordable Housing Agreement for construction of second dwelling units on affordable housing lots ("Affordable Housing Lots"), rather than the purchase of housing credits. The Affordable Housing Lots which are subject to this Agreement are: CA 10/24/13 Lots 2, 7, 23, 31, 39, 44, and 50 of that portion of the east half of Lot 6 of Rancho Las Encinitas, in the City of Carlsbad, County of San Diego, State of Califomia, according to Map No. 848 filed with the County Recorder of San Diego County on June 27, 1898. C. Developer intends to construct the required inclusionary units concurrent with the project's market units that are also identified on Exhibit "A". The Affordable Housing Lots shall be subject to this Agreement and this Agreement shall be recorded on the title for each Affordable Housing Lot. NOW, THEREFORE, incorporating the foregoing Recitals and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. The Recitals Are True And Correct. 2. THE AFFORDABLE HOUSING OBLIGATION SHALL BE SATISFIED BY CONSTRUCTION OF SEVEN SECOND DWELLING UNITS. Performance under this Agreement satisfies the Developers' obligation for affordable housing under Chapter 21.85 of the Carlsbad Municipal Code as applied to the land in Tentative Map CT 02-17, by Condition No. 15 in Planning Commission Resolution No. 5954 and any other applicable condition of approval. 3. SECOND DWELLING UNITS. (a) Constmction of Second Dwelling Units. Developer shall at the time a residential structure is constructed on the Affordable Housing Lot, include in such residential stmcture a Second Dwelling Unit as defined under and subject to the requirements contained in Municipal Code Section 21.850.070. (b) Restriction on Rental of Second Dwelling Unit. The maximum monthly rent for any Second Dwelling Unit, subject to this Agreement, which becomes rented or leased shall not exceed an amount of 1/12th of thirty percent (30%) of the gross monthly income of a low-income household, adjusted for household size, at seventy percent (70%) of the San Diego County median income, as such median income is published by the United States Department of Housing and Urban Development from time to time. For purposes of this Agreement, "Rent" shall include a utility allowance as established and adopted by the City of Carlsbad Housing Authority, as well as all required monthly payments made by the tenant to the lessor in connection with use and occupancy of a housing unit and land and facilities associated therewith, including any separately charged fees, utility charges, or service charges assessed by the lessor and payable by the tenant (but not including fees and charges resulting from any default by the tenant or damage caused by the tenant, or fees or charges paid by the tenant to third party utilities or other providers). A sample schedule showing the calculation of the maximum rental amount as for 2011 is attached to this Agreement as Exhibit "B". (c) Restriction on Tenant Income. The Affordable Units shall be available to households with incomes not exceeding 80%i of the median income for San Diego County, adjusted for actual household size. CA 10/24/13 (d) Declaration. Developer shall require the purchaser from Developer of an Affordable Housing Lot upon which a Second Dwelling Unit has been constructed to sign an affidavit or declaration under penalty of perjury, in a form prescribed by the City Housing and Neighborhood Services Director, which states that if the Second Dwelling Unit on the affordable housing lot is rented that it shall be rented at a monthly rental rate not to exceed the rate set forth in paragraph 3(b). Developer shall forward the original declaration to the City Housing and Neighborhood Services Director for maintenance in the City's files, and retain a copy for its own files in the event proof becomes necessary. (e) Deed Restriction. Prior to the sale of an affected lot, the Developer shall provide proof to the City Housing and Neighborhood Services Director that the language contained in Exhibit "C" has been included in each deed prior to the sale of an affected property and will run with the land so as to restrict subsequent transfers. 4. REMEDIES Failure by the Developer to perform in accordance with this Agreement will constitute failure to satisfy the requirements of Chapter 21.85 of the Carlsbad Municipal Code and Condition No. 15_of Planning Commission Resolution No. 5954. Such failure will allow the City to exercise any and all remedies available to it including but not limited to withholding the issuance of building permits for the lots shown on Carlsbad Tract No. 02-17. 5. HOLD HARMLESS Developer will indemnify and hold harmless (without limit as to amount) City and its elected officials, officers, employees and agents in their official capacity (hereinafter collectively referred to as "Indemnitees"), and any of them, from and against all loss, all risk of loss and all damage (including attomeys' fees and expenses) sustained or incurred because of or by reason of any and all claims, demands suits, actions, obtained, allegedly caused by, arising out of or retaining in any manner to Developer's actions or defaults pursuant to this Agreement, and shall protect and defend Indemnitees, and any of them with respect thereto. This provision shall survive the term of this Agreement. 6. INSURANCE Developer shall obtain, at its expense, commercial general liability insurance for development of the Project naming Indemnities as additional insureds with aggregate limits of not less than one million dollars ($1,000,000) purchased by Developer from an insurance company duly licensed to engage in the business of issuing such insurance in the State of Califomia, with a current Best's Key Rating of not less than A-:VII, such insurance to be evidenced by an endorsement which so provides and deliver to the City Clerk prior to the issuance of any building permit for the Project. 7. NOTICES All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, retum receipt requested to the party to receive such notice at the address set forth below: CA 10/24/13 TO THE CITY: City of Carlsbad Housing & Neighborhood Services Department Attn: Housing & Neighborhood Services Director 1200 Carlsbad Village Drive Carlsbad, Califomia 92008 TO THE DEVELOPERS: CWV La Costa 49, LLC 5927 Priestly Drive, Suite 110 Carlsbad, Ca. 92008 Any party may change the address to which notices are to be sent by notifying the other parties of the new address, in the manner set forth above. 8. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. 9. DURATION OF AGREEMENT This Agreement shall terminate and become null and void upon repeal, termination, or modification of any applicable ordinance which act would render the Affordable Housing Obligation unnecessary or unenforceable. The restriction set forth in Paragraph 3(b) above shall terminate as to the Affordable Housing Lot at such time as the Second Dwelling Unit on the Affordable Housing Lot has reached the end of its useful life, which is assumed to be not less than 55 years from the date of completion of original construction. 10. SUCCESSORS This Agreement shall benefit and bind Developers and any successive owners of Affordable Housing Lots. //// //// //// //// //// //// //// CA 10/24/13 11. SEVERABILITY In the event any provision contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless, be and remain in full force and effect. fN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the day and year first above written. DEVELOPER CITY OF CARLSBAD CWV La Costa 49 LLC, A Delaware Limited Liability Company By: California West Communities LLC, A California Limited Liability Company, Its Manager Donald W. Fontana By: Name: Title: Managing Member Dated: 3/6/2014 Debbie Fountain Housing and Neighborhood Services Director r, Dated: (<~j By: Name: Title: Dated: (Cliairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the office(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument.) (Proper notarial acknowledgment of execution by Developer must be attached.) APPROVED AS TO FORM: Celia A. Brewep^itw Attomey Dated : 3" CA 10/24/13 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODB § 1189 State of California County of San Diego ] On 3/6/2014 before me, M.tT. F^turV^j notary public Date •' "iHere Insert Natf e rfijTOeoffR personally appeared Donald W. Fontana Name(s) of Signer(s) M. K. STUCKEY t Commission # 1933217 I Notary Public - California 1 ^ San Diego County g My Comm. Expires May 16,2015 L t I I I t t t t i 1 i t t I I i © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) le Officer who proved to me on the basis of satisfactory evidence to be the person(i|0 whose nameN^) is/a)| subscribed to the within instrument and acknowledged to me that he/steAhWy executed the same in his/l*r/thXir authorizecl capacity(ies), and that by his/l^/th^r signature(s) on the instrument the personfj^, or the entity upon behalf of which the person(^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature: OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and couid prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages:. Signer(s) Other Than Named Above: Capaclty(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Tltle(s): Individual Partner — • Limited • General Attomey In Fact Trustee Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here 1 I I I' I' 1 I I I I I I i I I k Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of •9nr^ 0]Q.OG On mOiroW \7. ^Ilbefore me, feW\da 1 Pm^CeryU^ ]MgWyT>oh\ "^^^ < Here Insert Name aniyritl^ of tlie Officer / personally appeared DpV>Wie, Fc^orrVrJ iri Name(s) of Signer(s) 1 ' PATRICIA L. CRESCENTI Commission # 1887595 Notary Public - California z 1 \Mkt^ ''•'OO County i < ,**)[ Comm Ex^res May 2^- 201< ^ who proved to me on the basis of satisfactory evidence to be the person(^ whose name(^ is/af© subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(jfcf^ and that by -his/her/thgTr signatur^^ on the instrument the person^, or the entity upon behalf of which the person^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp Above Signature OPTIONAL :ure^"^^^^t^^^ Siglnature o^ptary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description>>f^ttached Document Title or Type of Doctrfnent: Document Date: Numberjjf-Pages: Slgner(s) Other Than Named Abo\) Capacity(ies) Claimed by Signer(£ Signer's Name: signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian orC<Jhservator • Other RIGHT ThUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: • Corporate Officer — Title(s): ndividual • PartN^— • Limited • General • Attorney^ Fact • Trustee • Guardian or Cons"^ator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here ©2008 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • wvKW.NationalNotaty.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Lots 2,7,23,31,39, 44. 50 of that portion ofthe east half of Lot 6 of Rancho Las Encinitas, in the Citv of Carlsbad, Countv of San Diego, State of California, according to Map thereof No. 848 filed in the Office ofthe Countv Recorder of San Diego Countv, June 27,1898. APN; 223-061-01-00 and 223-061-02-00 CA 10/24/13 EXHIBIT B MAXIMUM MONTHLY RENTAL AMOUNT CA 10/24/13 San DIego-Carlsbad-San Marcos, CA Metropolitan Statistical Area (MSA) Household Income Limits HUD Method Note: The follov»ing household income limits are adjusted for a high cost area as per the Federal Housing Act of 1937 and calculated using HCD methodology to comply with Health and Safety Code Sections 50052,5 and 50093 San Diego-Carlsbad-San Marcos, CA MSA U.S. Department of Housing and Urban Development December 18, 2013 Effective Date 2014 $ 72,700 Extremely Low Income 30% 35% 40% 45% Hshold Size Annual Monthly 30.00% Annual Monthly 30.00% Annual Monthly 30.00% Annual Monthly 30.00% Income Income Monthly Income Income Monthly Income Income Monthly Income Income Monthly ONE $16,600 $1,383 $415 $19,350 $1,613 $483 $22,100 $1,842 $553 $24,850 $2,071 $621 TWO $18,950 $1,579 $473 $22,100 $1,842 $552 $25,250 $2,104 $631 $28,400 $2,367 $710 THREE $21,300 $1,775 $532 $24,850 $2,071 $621 $28,400 $2,367 $710 $31,950 $2,663 $799 FOUR $23,650 $1,971 $591 $27,600 $2,300 $690 $31,550 $2,629 $789 $35,500 $2,958 $888 FIVE $25,550 $2,129 $638 $29,850 $2,488 $746 $34,100 $2,842 $853 $38,350 $3,196 $959 SIX $27,450 $2,288 $686 $32,050 $2,671 $801 $36,600 $3,050 $915 $41,200 $3,433 $1,030 SEVEN $29,350 $2,446 $733 $34,250 $2,854 $856 $39,150 $3,263 $979 $44,050 $3,671 $1,101 EIGHT $31,250 $2,604 $781 $36,450 $3,038 $911 $41,650 $3,471 $1,041 $46,900 $3,908 $1,173 Very Low Income Low Income 50% 60% 70% 80% Hshold size Annual Monthly 30.00% Annual Monthly 30.00% Annual Monthly 30.00% Annual Monthly 30.00% Income Income Monthly Income Income Monthly Income Income Monthly Income Income Monthly ONE $27,650 $2,304 $691 $33,180 $2,765 $829 $38,700 $3,225 $967 $44,200 $3,683 $1,105 TWO $31,600 $2,633 $790 $37,920 $3,160 $948 $44,200 $3,683 $1,105 $50,500 $4,208 $1,262 THREE $35,550 $2,963 $888 $42,660 $3,555 $1,066 $49,750 $4,146 $1,243 $56,800 $4,733 $1,420 FOUR $39,450 $3,288 $986 $47,340 $3,945 $1,183 $55,250 $4,604 $1,381 $63,100 $5,258 $1,577 FIVE $42,650 $3,554 $1,066 $51,180 $4,265 $1,279 $59,700 $4,975 $1,492 $68,150 $5,679 $1,703 SIX $45,800 $3,817 $1,145 $54,960 $4,580 $1,374 $64,100 $5,342 $1,602 $73,200 $6,100 $1,830 SEVEN $48,950 $4,079 $1,223 $58,740 $4,895 $1,468 $68,550 $5,713 $1,713 $78,250 $6,521 $1,956 EIGHT $52,100 $4,342 $1,302 $62,520 $5,210 $1,563 $72,950 $6,079 $1,823 $83,300 $6,942 $2,082 Moderate Income 90% 100% 110% 120% Hshold Size Annual Monthly 30.00% Annual Monthly 30.00% Annual Monthly 30.00% Annual Monthly 30.00% Income Income Monthly Income Income Monthly Income Income Monthly Income Income Monthly ONE $45,850 $3,821 $1,146 $50,900 $4,242 $1,272 $56,000 $4,667 $1,400 $61,100 $5,092 $1,527 TWO $52,400 $4,367 $1,310 $58,200 $4,850 $1,455 $64,000 $5,333 $1,600 $69,800 $5,817 $1,745 THREE $58,950 $4,913 $1,473 $65,450 $5,454 $1,636 $72,000 $6,000 $1,800 $78,550 $6,546 $1,963 FOUR $65,450 $5,454 $1,636 $72,700 $6,058 $1,817 $79,950 $6,663 $1,998 $87,250 $7,271 $2,181 FIVE $70,700 $5,892 $1,767 $78,550 $6,546 $1,963 $86,350 $7,196 $2,158 $94,250 $7,854 $2,356 SIX $75,950 $6,329 $1,898 $84,350 $7,029 $2,108 $92,750 $7,729 $2,318 $101,250 $8,438 $2,531 SEVEN $81,200 $6,767 $2,030 $90,150 $7,513 $2,253 $99,150 $8,263 $2,478 $108,200 $9,017 $2,705 EIGHT $86,400 $7,200 $2,160 $96,000 $8,000 $2,400 $105,550 $8,796 $2,638 $115,200 $9,600 $2,880 Note: Income levels 80% and below are adjusted by a HUD high cost area allowance. This general income information is calculated from the U.S. Department of Housing and Urban Deveiopment (HUD) income figures. Specific program requirements may vary. Prepared by Affordable Housing Services Information, LLC Web: www.AHSInfo.com Phone (858) 832-1460 EXHIBIT C DEED RESTRICTION A Second Dwelling Unit has been constructed as part of this property, and shall be maintained and utilized in accordance with the requirements of Carlsbad Municipal Code Section 21.85.070 for the useful life of the main structure (estimated to be 55 years). The maximum monthly rent for the Second Dwelling Unit, if rented or leased, shall not exceed an amount equal to thirty percent (30%) of the gross monthly income of a low-income household, adjusted for household size, at seventy percent (70%) of the San Diego County median income as such median income is published by the United States Department of Housing and Urban Development from time to time ("Affordable Units"). The Affordable Units shall he available tn households with gross household incomes not exceeding 80% of the median income for San Diego Countv. adiusted for actual household size. Prior to subsequent transfers of the property, seller shall require the purchaser to submit a signed affidavit or declaration under penalty of perjury on a form satisfactory to the City Housing and Neighborhood Services Director, to the Housing and Neighborhood Services Department, which acknowledges that the purchaser has read and understand the restrictions as they relate to the Second Dwelling Unit. CA 10/24/13