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HomeMy WebLinkAboutCT 16-04; Edelen, Christopher M; 2020-0273006; Affordable Housing Agreement/ReleaseRecording Requested By: First American Tille Company Homebuilder Services Division l~u? 3"c./9 -II REt ORDING REQUESTED BY AND 'WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 llfl\J : ,'),(J~-Ys-D -t) o2 ~ 0 No fee for recording pursuant to Government Code Section 27383 . \JI) Exempt from fee per GC 27388.1 (a) (2); recorded . .-t-' concurrently "in connection with" a transfer s~bJect to I DOC# 2020-0273006 111111111111 lllll 111111111111111 111111111111111 IIIII 111111111111111111 May 29, 2020 09:45 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) PAGES: 21 the imposition of documentary transfer tax (D IT): .. 1 AGREEMENT CONT AJNING COVENANTS AND RESTRICTIONS GOVERNING RENT AL OF AFFORDABLE ACCESSORY DWELLING UNIT THIS AGREEMENT CONTAINING COVEN ANTS AND RESTRICTIONS GOVERNING RENTAL OF AFFORDABLE ACCESSORY DWELLING UNIT (the "Agreement") is made and entered into as of April 30, , 20 20(the "Effective Date"), by and between the City of Carlsbad, a municipal corporation (the "City"), and Christopher M. Edelen and Shima Pousti , or any successor in interest (coJlectively, the "Owner11) with reference to the following: RECITALS A. 'Owner is the fee owner of that certain property in the City of Carlsbad, California, which is more particularly described in Exhibit A (the ''Property"). As of the Effective Date, two (2) housing units are located, or will be constructed, on the Property. One unit shall be referred to herein as the "Primary Unit" and the other unit shall be referred to herein as the "Accessory Dwelling Unit". Such units are designated on Exhibit B. B. The Property, and other real property, are the subject of Tentative Tract Map CT 16-04, and Planned Development Penn it PUD 16-03, which provided conditional approval of the construction of eight single family dwelling units (the "Master Development"). C. Condition No. 19 of Planning Commission Resolution No. 7242 for the Master Development required, among other things, that the City and Carlsbad Coastal Views, LLC, a limited liability company (the "Developer") enter into that certain Affordable Housing Agreement dated as of November 11, 2017, and recorded in the Official Records of San Diego County (the "Official Records") on March 21, 2018, as document 2018-0111910 (the "Affordable Housing Agreement"). The Affordable Housing Agreement encumbers the Property and the other real property on which the Master Development is developed. D. The Affordable Housing Agreement satisfied the Developer's affordable housing obligation, as set forth in Chapter 21 .85 of the Carlsbad Municipal Code (the "Affordable Housing Obligation"). The Owner, as the owner of the Property, is the successor-in-interest to the Developer. tOl0\17\2059295.1(2020) Recording Requested By: First American Title Company Homebuilder Services Division IJ tJ '? 3"<-l'r -// RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 ltfl\.J: .),OS--'t-)D -"o2-£JO No fee for recording pursuant to Government Code Section 27383 . 'tJ/' Exempt from ke per GC 27388.1 (a) (2); recorded ~ concurrently •'in connection with" a transfer subJeCI to the imposition of documentary transfer tax (OTT). 'R AGREEMENT CONTAINING COVENANTS AND RESTRICTIONS GOVERNING RENT AL OF AFFORDABLE ACCESSORY DWELLING UNIT THIS AGREEMENT CONTAINING COVENANTS AND RESTRICTIONS GOVERNING RENTAL OF AFFORDABLE ACCESSORY DWELLING UNIT (the "Agreement") is made and entered into as of April 30, , 2020(the "Effective Date"), by and between the City of Carlsbad, a municipal corporation (the "City"), and Christopher M. Edelen and Shima Pousti , or any successor in interest (collectively, the "Owner") with reference to the following: RECITALS A. Owner is the fee owner of that certain property in the City of Carlsbad, California, which is more particularly described in Exhibit A (the "Property"). As of the Effective Date, two (2) housing units are located, or will be constructed, on the Property. One unit shall be referred to herein as the "Primary Unit" and the other unit shall be referred to herein as the "Accessory Dwelling Unit". Such units are designated on Exhibit 8. B. The Property, and other real property, are the subject of Tentative Tract Map CT 16-04, and Planned Development Permit PUD 16-03, which provided conditional approval of the construction of eight single family dwelling units (the "Master Development"). C. Condition No. 19 of Planning Commission Resolution No. 7242 for the Master Development required, among other things, that the City and Carlsbad Coastal Views, LLC, a limited liability company (the "Developer") enter into that certain Affordable Housing Agreement dated as of November I I, 2017, and recorded in the Official Records of San Diego County (the "Official Records") on March 21 , 2018, as document 2018-0111910 (the "Affordable Housing Agreement"). The Affordable Housing Agreement encumbers the Property and the other real property on which the Master Development is developed. D. The Affordable Housing Agreement satisfied the Developer's affordable housing obligation, as set forth in Chapter 21.85 of the Carlsbad Municipal Code (the "Affordable Housing Obligation"). The Owner, as the owner of the Property, is the successor-in-interest to the Developer. 101(1117\1059295.1(2020) E. In conjunction with the approval of the Master Development, the Developer requested, and the City approved, the ability to satisfy the Master Development's Affordable Housing Obligation by providing the Accessory Dwelling Unit on the Property as an alternative to providing for-sale single family dwelling units, as affordable units, in accordance with Chapter 21.85 of the Carlsbad Municipal Code. Such approval is a form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code (the "Incentive"). Accordingly, the Owner is required to make the Accessory Dwelling Unit available for rent exclusively to Low Income Households (as defined below) at an Affordable Rent (as defined below). F. This Agreement is required to be entered into by the City and the Owner, and recorded in the Official Records against the Property, in accordance with Section 3(d) of the Affordable Housing Agreement in order to comply with the requirements of the Affordable Housing Obligation and Chapter 21.85 of the Carlsbad Municipal Code. NOW THEREFORE, it is hereby agreed by and between the City and the Owner (each a "Party", and, collectively, the "Parties") as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the terms set forth below shall have the following meanings ( other defined terms herein not referenced below shall have the meanings where first used). 1.1 "Affordable Rent" means the maximum allowable Rent for the Accessory Dwelling Unit, equal to one-twelfth (1112th) of thirty percent (30%) of seventy percent (70%) of the Median Household Income for Low Income Households, adjusted for assumed household size of two persons in a one-bedroom or three persons in a two-bedroom. 1.2 "Eligible Household" means a household that has been determined to be eligible to be a Tenant of the Accessory Dwelling Unit as a Low Income Household. 1.3 "HCD" means the State of California Department of Housing and Community Development, or any successor 1.4 "HUD" means the U.S. Department of Housing and Urban Development, or any successor. 1.5 "Low Income Household" means a household whose income does not exceed the low income limits applicable to San Diego County, adjusted for household size, as determined by HUD and published annually by the US Department of Housing and Urban Development and/or the State of California Department of Housing and Community Development. As of the Effective Date, such income limit is approximately equal to eighty percent (80%) of Median Household Income. 2 IO IOI I 7\2059295.1(2020) 1.6 "Median Household Income" means median yearly income in San Diego County as determined by HUD and published by HCD. 1.7 "Rent" means the total monthly payment by the Tenant of the Accessory Dwelling Unit for all of the following: (1) use and occupancy of the Accessory Dwelling Unit and land and all facilities associated with the Accessory Dwelling Unit, including but not limited to parking, storage, and use of any common areas; (2) any separately charged fees or service charges assessed by the Owner to the Tenant, except security deposits; (3) an allowance for utilities paid by the Tenant as established by the Carlsbad Housing Authority, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service, Internet, or cable or subscription TV; and ( 4) any other interest, taxes, fees or charges for use of the Property or associated facilities that are assessed by a public or private entity other than the Owner and paid by the Tenant. 1.8 "Tenant" means an Eligible Household entitled by written or oral agreement with the Owner to have the exclusive right to occupy the Accessory Dwelling Unit as a home or residence to the exclusion of all others. ARTICLE2 OWNER'S OBLIGATIONS 2.1 Rental of Accessory Dwelling Unit to Eligible Households. The Owner shall ensure that the Accessory Dwelling Unit is rented to, and occupied by, Eligible Households in accordance with this Agreement. The Owner shall not use the Accessory Dwelling Unit for any other purpose other than as set forth in this Agreement; provided, however, nothing in this Agreement shall be deemed to prohibit the Accessory Dwelling Unit from being vacant so long as such vacant Accessory Dwelling Unit is not used by Owner (or any other person) for any purpose, including, but not limited to use by the Owner in conjunction with the use and occupancy of the Primary Unit. Except as set forth in the preceding sentence nothing in this Agreement limits the use or occupancy of the Primary Unit. (a) Income Certification. The Owner shall not enter into a lease or rental agreement, or receive Rent from a Tenant, for the Accessory Dwelling Unit unless the Owner has made a good faith effort to verify that the income provided by an applicant in an income certification is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain a pay stub for the most recent pay period; (2) obtain an income tax return for the most recent tax year; (3) conduct a credit agency or similar search; (4) obtain an income verification form from the applicant's current employer; (5) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (6) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications shall be available to the City upon request. (b) Maximum Allowable Rent. The maximum Rent charged to the Tenant of the Accessory Dwelling Unit shall not exceed Affordable Rent. 3 IO I 0\17\2059295.1 (2020) (c) Increased Income of Tenants. If, upon recertification of a Tenant's income pursuant to Section 2.2, the Owner detem1ines that the Tenant's household income has increased and exceeds the qualifying income for a Low Income Household, then such Tenant shall continue to be considered an "Eligible Household", and shall be permitted to continue to occupy the Accessory Dwelling Unit, at the rent set forth in subsection (c), above; provided, however, nothing in this Agreement shall prohibit the Owner from terminating such tenancy upon the expiration of such Tenant's lease. Following such Tenant's vacancy, the Owner shall lease the Accessory Dwelling Unit to an Eligible Household. ( d) Information. At the request of the Owner, the City shall provide the Owner with the low and very low income limits applicable to San Diego County, adjusted for household size, as published from time to time by HCD. 2.2 Annual Certification. The Owner shall certify the Tenant's household income on an annual basis. The Owner shall provide the City with a certification, in the form attached as Exhibit C, no later than June 30th of each year of the Term setting forth the following information with respect to the Tenant occupying the Accessory Dwelling Unit: unit address, Tenant name, size of Tenant's household, unit size, and date first occupied, and a copy of the annual income certification obtained by the Owner from the Tenant. The purpose of the yearly Owner certification is to document Owner's compliance with the restrictions set forth herein. 2.3 Lease Provisions. The Owner shall use a form of Tenant lease (the "Tenant Lease") approved by the City for the Accessory Dwelling Unit. The City shall either approve or specify its basis for disapproval, if any, within thirty (30) days after the Owner submits such proposed form lease to City. The Tenant Lease shall, among other matters: (a) provide that the Rent may not be raised more often than once every twelve (12) months. The Owner will provide the Tenant with at least sixty (60) days written notice of any increase in Rent, and any Rent increase shall not violate the limitations imposed by this Agreement; (b) prohibit the Accessory Dwelling Unit (or any portion of the Accessory Dwelling Unit) from: (i) any sublease, except as permitted by Section 2.6, below; (ii) use as a "short-term vacation rental" (as such term is defined in Chapter 5.60 of the City of Carlsbad Municipal Code, as may be amended from time to time); (iii) use for tourist or transient use, or any other short-term rental; and (iii) being listed on any "hosting platform" (as defined in California Business & Professions Code 22590, as may be amended from time to time), including, but not limited to any Internet-based "hosting platform", such as "airbnb.com", or any similar service; (c) require the Tenant to provide an annual income certification to the Owner; (d) include, at Owner's option, the obligation for Tenant to provide a security deposit not exceeding two months' rent; and (e) be for an initial term of one year. 4 I 0I0\1712059295.1(2020) 2.4 Inspection. For purposes of confirming compliance with this Agreement, the Accessory Dwelling Unit shall be made available by Owner to be inspected by the City during regular business hours upon seventy-two (72) hours' written notice; provided, however, that any such inspection shall occur only once during any twelve (12) calendar month period unless: (i) the City receives a complaint that a Tenant is occupying the Accessory Dwelling Unit in violation of this Agreement ( or that the Owner is otherwise violating this Agreement); or (ii) a new Tenant is occupying the Accessory Dwelling Unit, in which case City may re-inspect. The Owner hereby irrevocably grants the City (and its agents) a right of entry to enter the Property for the purposes of such inspection. 2.5 Records. The Owner shall maintain reasonably complete and accurate records pertaining to such rental of the Accessory Dwelling Unit throughout the duration of each tenancy. Owner shall permit any authorized representative of the City to inspect such records of any current Tenant upon reasonable notice, including those resident files pertaining to said rental, for the purpose of confirming compliance with the terms, conditions and covenants of this Agreement. 2.6 Assignments and Subletting. The Owner shall at no time permit the Tenant to assign its leasehold interest in the Accessory Dwelling Unit or to sublet all or a portion of the Accessory Dwelling Unit to any person other than to another Eligible Household. Owner shall have the right to approve or disapprove any proposed assignment or sublease at Owner's sole discretion; provided that prior to approving any proposed assignment or sublease, Owner shall comply with the provisions of Section 2.1 above to confirm the eligibility of the proposed assignee or sub-lessee. 2.7 Agreement to Limitation on Rents. (a) The Owner acknowledges that the Property, as a component of the Master Development, received the Incentive from the City in connection with the approval of the Master Development, and the Incentive is a form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where an owner has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a property owner has so agreed by contract. The Owner hereby agrees to limit the Rents for the Accessory Dwelling Unit, as provided in this Agreement, in consideration of the Property's receipt of the Incentive and further agrees that any limitations on Rents imposed on the Accessory Dwelling Unit are in conformance with the Costa-Hawkins Act. (b) The Owner further warrants and covenants that the terms of this Agreement are fully enforceable. The Owner agrees and acknowledges that the City would not have provided the necessary approvals for the Master Development without the obligation to record this Agreement against the Property in the Officials Records, and that in providing the necessary approvals for the Master Development, the City was relying on the restrictions imposed on the Accessory Dwelling Unit by this Agreement. 2.8 Deeds. Owner acknowledges that this Agreement shall be recorded in the Official Records against the Property, and any deed transferring any fee interest in the Property 5 10 I 0\17\2059295.1(2020) shall include the following language; provided, however, the failure to include the following language shall not limit, waive, or impair the obligations set forth in this Agreement: NOTICE: THE ACCESSORY DWELLING UNIT ON THIS PROPERTY IS REQUIRED TO BE RENTED TO PERSONS MEETING CERTAIN ELIGIBILITY REQUIREMENTS AT A BELOW-MARKET RATE RENT, PURSUANT TO THE CITY OF CARLSBAD MUNICIPAL CODE. FOR MORE INFORMATION, SEE THE AGREEMENT RECORDED AGAINST THIS PROPERTY ENTITLED "AGREEMENT CONTAINING COVENANTS AND RESTRICTIONS GOVERNING RENTAL OF AFFORDABLE ACCESSORY DWELLING UNIT". THE RESTRICTIONS SET FORTH IN SUCH AGREEMENT BIND ALL HEIRS AND SUCCESSORS TO THIS DEED. ARTICLE3 TERM 3.1 Term. This Agreement shall become effective as of the Effective Date and shall remain in full force and effect for a term of fifty-five (55) years following the recordation of this Agreement in the Official Records unless the City elects, in the City's sole discretion, to terminate this Agreement by written instrument recorded in the Offici~l Records. ARTICLE 4 DEFAULT 4.1 Violations by Owner. Failure of the Owner to cure any default in the Owner's obligations under the terms of this Agreement within thirty (30) days after the delivery of a written notice of default from the City ( or such longer period of time up to an additional sixty (60) days as may be necessary to remedy such default, provided that the Owner has commenced action during the thirty (30) days necessary to remedy such default, and the Owner is proceeding with reasonable diligence to remedy such default) will constitute a default under this Agreement. 4.2 Remedies. Subject to the applicable notice and cure period set forth above, the City may exercise any and all remedies available to it at law or equity with respect to the Owner's failure to satisfy the terms of this Agreement. Owner acknowledges that any breach in Owner's performance of Owner's obligations under this Agreement shall cause irreparable harm to the City, and materially impair the public policy objectives set forth in the Carlsbad Municipal Code. Therefore, Owner agrees that the City is entitled to equitable relief in the form of specific performance, and that an award of damages may not be adequate to compensate the City for Owner's failure to perform according to the terms of this Agreement. Notwithstanding the foregoing, the City, in its sole and absolute discretion, may elect the appropriate remedy for Owner's default under this Agreement. 6 I 010117\2059295.1(2020) ARTICLES GENERAL PROVISIONS 5.1 Notices. All notices required pursuant to this Agreement shall be in writing and shall be deemed to have been duly given (a) upon personal delivery, including delivery by courier, or (b) three (3) business days after the mailing by registered or certified mail, return receipt requested, to the Party to receive such notice at the addresses set forth below: To the City: City of Carlsbad Housing Services Division 1200 Carlsbad Village Drive Carlsbad, CA 92008 To the Owner: Christopher M. Edelen and Shima Pousti 3766 Highland Drive 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. 5.2 Entire Agreement. The Recitals set forth above, and all exhibits attached hereto, are hereby incorporated into this Agreement by this reference. This Agreement contains the entire agreement between the Parties as to the subject matter hereof, and supersedes any and all prior arrangements and understandings between the Parties, and no other agreement, statement or promise made by either Party hereto which is not contained herein shall be binding or valid provided, however, that nothing in this Section limits the effect or enforceability of the City of Carlsbad Municipal Code. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared it. The Parties have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (including but not limited to Civil Code Section 1654 as may be amended from time to time) shall not apply to the interpretation of this Agreement. In the event of any conflict between the terms of this Agreement, and the terms of the disclosure statement executed by the City and the Owner in conjunction with this Agreement, the terms of this Agreement shall prevail. 5.3 Amendment. This Agreement may be amended only by the written agreement of the Parties. 5 .4 Severability. In the event any limitation, condition, restriction, covenant, or provision contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction, or if any provision of this Agreement is rendered invalid or 7 101"-17\2059295.1(2020) unenforceable pursuant to any California statute which became effective after the Effective Date, the remaining portions of this Agreement shall nevertheless remain in full force and effect. 5.5 Waiver. The waiver of or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provisions hereof. 5.6 Covenant Running with the Land. The covenants and conditions herein contained shall apply to and bind, during their respective periods of fee ownership, Owner and its heirs, executors, administrators, successors, transferees, and assignees (each a "Transferee") having or acquiring any right, title or interest in or to any part of the Property, whether by operation of law or in any manner whatsoever, and shall run with and burden the Property for the entire Term unless or until released in accordance with Article 3. All of the provisions of this Agreement shall be enforceable as equitable servitudes and sha11 constitute covenants running with the land pursuant to applicable laws, including without limitation Section 1468 of the California Civil Code. Each covenant to do, or to refrain from doing, some act on the Property hereunder: (a) is for the benefit of the Property and is a burden on the Property, (b) runs with the Property, and (c) is binding upon each Party and each successive owner during its ownership of the Property or any portion thereof, and shall be a benefit to and a burden upon each Party and the Property hereunder and each other person or entity succeeding in an interest to the Property. 5.7 Assignment and Assumption: Release. Provided that a Transferee expressly assumes Owner's obligations hereunder pursuant to an assignment and assumption agreement in a form approved by the City in connection with the transfer of any part of the Property, the Owner shall be released from all obligations following the recordation of such assignment and assumption agreement in the Official Records. 5.8 Non-Discrimination. The Accessory Dwelling Unit shall be available for occupancy to members of the general public. The Owner shall not give preference to any particular class or group of persons in renting the Accessory Dwelling Unit or selling the Property, except to the extent that the Accessory Dwelling Unit is required to be rented to Eligible Households; provided, however, there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, source of income ( e.g., SSI), age, ancestry, disability, or any other basis prohibited by the Fair Housing Act or the Fair Employment and Housing Act in the leasing, transferring, use, occupancy, tenure, or enjoyment of the Accessory Dwelling Unit nor shall the Owner or any person claiming under or through the Owner, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of Tenants of the Accessory Dwelling Unit. The Owner has agreed to the obligations set forth in this Section in consideration for the Incentive. 5.9 Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed by the Parties or any third party to create the relationship of principal and agent or of partnership or of joint venture or of association. The relationship of the Parties is that of an owner of real property and an administrator of a City inclusionary housing program; furthermore, the Parties agree and acknowledge that this Agreement is in furtherance of the inherent power of City to regulate the use of land within City's jurisdiction. Owner further 8 I 010\17\2059295.1 (2020) acknowledges, understands and agrees that the City does not undertake or assume any responsibility for or duty to Owner to select, review, inspect, supervise, pass judgment on, or inform Owner of the quality, adequacy or suitability of the Accessory Dwelling Unit ( or any other portion of the Property). The City owes no duty of care to protect Owner against negligent, faulty, inadequate or defective building or construction or any condition of the Property and Owner agrees that neither Owner, or Owner's heirs, successors or assigns shall ever claim, have or assert any right or action against the City for any loss, damage or other matter arising out of or resulting from any condition of the Property and will hold the City harmless from any liability, loss or damage as set forth in Section 5.10. Any review by the City of any documents submitted by the Owner to the City pursuant to this Agreement, including, but not limited to any Tenant Lease, is solely to confirm compliance with the requirements of this Agreement and shall not be deemed to be a representation of any kind of the validity or legal enforceability of such document(s). 5.10 Hold Harmless: Indemnity. Owner shall indemnify, defend (with counsel reasonably selected by the City), and hold harmless the City and its officers, officials, agents, and employees against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury or death of any person or damage to property or other liability of any nature, or any claims by a Tenant, a former Tenant or prospective Tenant, arising out of Owner's performance of its obligations hereunder, except where the cause of such is the gross negligence or willful misconduct of the City. The indemnification obligations set forth in this Section shall survive any termination or expiration of this Agreement. 5.11 Applicable Law and Venue. This Agreement shall be governed by California law. Venue for any dispute arising out of this Agreement shall be San Diego County. 5.12 Attorneys' Fees and Costs. In the event any action or proceeding in court or other dispute resolution mechanism permitted under this Agreement is commenced by either party to interpret or enforce the terms of this Agreement, the prevailing Party therein shall be entitled to recover from the non-prevailing Party all of the prevailing Party's reasonable costs and expenses in connection therewith, including on any appeal and including expert witness fees, document copying expenses, exhibit preparation costs, carrier expenses and postage and communication expenses, and reasonable attorneys' fees and costs for the services rendered to the prevailing Party in such action or proceeding ( which shall include the reasonable costs for services of the City's in-house counsel). 5.13 Time is of the Essence. In all matters under this Agreement, the Parties agree that time is of the essence. References in this Agreement to days shall be to calendar days. If the last day of any period to give or reply to a notice, meet a deadline or undertake any other action occurs on a day that is not a day of the week on which the City of Carlsbad is open to the public for carrying on substantially all business functions (a "Business Day"), then the last day for giving or replying to such notice, meeting such deadline or undertaking any such other action shall be the next succeeding Business Day. In no event shall a Saturday or Sunday be considered a Business Day. 9 IO I 0\17\205929 5. I (2020) 5.14 Interpretation. The use in this Agreement of the words "including", "such as" or words of similar import when used with reference to any general term, statement or matter shall not be construed to limit such statement, term or matter to the specific statements, terms or matters, unless language of limitation, such as "and limited to" or words of similar import are used with reference thereto. The headings of this Agreement are for convenience only and do not in any way limit or amplify the terms or provisions hereof. All pronouns and variations thereof shall be deemed to refer to the masculine, feminine, or neuter, and to the singular or plural, as the identity of the party or parties may require. 5 .15 Government Standards. In the event any standard established and maintained by any governmental agency which is necessary to give effect to this Agreement ceases to exist, and no comparable replacement is issued, the Parties shall create a replacement standard utilizing the formula and factors previously used to create the discontinued standard. 5.16 No Limitation on Municipal Powers. Nothing in this Agreement shall limit, waive, or otherwise impair the authority and discretion of: (a) the City's Building Department, in connection with the review and approval of any proposed construction plans for the Property ( or any change to such plans), or any use, or proposed use, of the Property; or (b) any other office or department of the City acting in its capacity as a governmental regulatory authority with jurisdiction over the development, use, or operation of the Property. 5.17 Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts, which shall constitute one and the same agreement. Remainder of Page Left Intentionally Blank 10 I 0\ 17\205929 5. I (2020) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego before me, Morgen Fry A NOTARY PUBLIC (insert name and title of the officer) personally appeared C::::ie..o~ :f?~fho~ who proved to me on the basis of satisfactory evidence to be the perso~) whose name~) is+s1=e subscribed to the within instrument and acknowledged to me that he/~i'lelthoy executed the same in his/i'le1/theif authorized capacit~). and that by his/hor.lthoir signature~) on the instrument the person~). or the entity upon behalf of which the person'fq) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. eeeeeoeee~ MOftGEH F~Y . Noury Public • Callfornii z : San Di~o County ~ ~ Commission II 2268605 - Signature~~ (Seal) My Comm. Expires Dtc H , 2022 fN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date. CITY: CITY OF CARLSBAD, a municipal corporation By: Name: fu-r-= PA-r~ Its: OWNER: Name: Christopher M. Edelen By: Name: __ S.:::....:..;.h,;,;..im;.;_a:.;_;_P....:;o...;.u....:;s..;;,;ti _______ _ (Sig11at11re.'I 11111.'lt be 11otarized) 10 IO'll 7\2059295.1 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) COUNTY OF~~ ~ Notary Public, ~rsoT~~?:~ ~ CS'.W=7who ~ved to me on the basis of satisfactory evidence to oe the person(aj whose nam.e(s) is/ate.subscribed to the within instrument and acknowledged to me that he/she4Ai¥ executed the same in his/her/their authorized capacity(ies~, and that by his/heP4Beir signature~ the instrument the persoIW,""Or the entity upon behalf of which the person~ted, 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. ie•· :.• e ~H;IS;N;S;v;t e J ;; • , ~ Notary Public -California -; 1 _,,, ,.. ' San Oleso County ; ' • Commission N 2273275 - My Comm, Expires Jan 6, 2023 101011712059295. I A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STA TE OF CALIFORNIA ) ) COUNTY OF ~1~6 ) On~c,\ 15,10:?§ ,beforeme,~ , Notary Public, pers~lly appeared=hl'l)/\0\ ~Ot )= ----"'=~ , who proved to me on the basis of satisfactory evidence to be the personW whose name(-8)..is/ai:e subscribed to the within instrument and acknowledged to me that h.e/she/thq executed the same in his/her/#teir authorized capacity(ies-), and that by his/her/#teir signaturets-) on the instrument the person(4,, or the entity upon behalf of which the person(syacted, executed the instrument. I certify UNDER PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 1010\17\2059295. I EXHIBIT A PROPERTY LEGAL DESCRIPTION [To be Inserted] A-1 1010117\2059295.1 EXHIBIT•A" LEGAL DESCRIPTION Real property in the City of cartsbad, County of San Diego, State of califomia, described as follows: PARCEL 1: LOT 2 OF CARLSBAD TRACT 16-04, IN THE QTY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CAUFORNIA, ACCORDING TO MAP THEREOF NO. 16273, ALEO IN THE OFACE OF THE SAN DIEGO COUNTY RECORDER, MAY 24, 2018. PARCEL 2: AN EASEMENT OF INGRESS TO AND EGRESS FROM LOT 9 AND LOT 10 OF CARLSBAD TRACT 16-04, IN THE QTY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CAUFORNIA, ACCORDING TO MAP THEREOF NO. 16273, ALED IN THE OFACE OF THE SAN DIEGO COUNTY RECORDER, MAY 24, 2018. APN: 205-450-02-00 1010\1712059295. I EXIDBITB ORA WING DEPICTING PRIMARY UNIT AND ACCESSORY DWELLING UNIT ON PROPERTY [To be Inserted] B-1 46 D --· - ENTRY 107SF. STORAGE WORl<SHOP/ STORAGE GARAGE/ STORAGE 2.147 SF. e K-:;t W-Af. I fi:;}_c_, ... -- r--------- 1Qilll] L------- ~-------------------------~ 11 I', ···-,' I 11 : ',, r------,L'--~ I , I / I I ' I / I I ', I ,, I I ' I ' I I ', I ,, I '-I/ I ', ,,( r;,;.;-7: GARAGE ',...,/ \ 1 •"--"•1 1 r .. I :-:i , , . D I I I I ' : : I I ', I I I I , l : i I ' ' : : I / I '- L. ____ ..J L,/ -------------L-------'\,.~~ I I -------------- HIGHLAND VIEW HOMES FOR CARLSBAD COASTAL VIEWS LLC IN CARLSBAD, CALIFORNIA BY SPIRE ARCHITECTURAL DESIGNS INC. &=:.--=.-- GARAGE AND AFFORDABLE UNIT FLOOR PLAN LOT2 ■ AFFOROMUUl'ffl' ~ 23, 2011 SCALE: tH" • 1'4' .... .,, A2.1 ,. D ~3 D - 0 D,-----7 BEOR ~fl5 I , .. _...,,.~~I 0 --I I _J BEDROOM♦ □L ____ _ ~ ,., ' (.'.ii l \ ,, X• ' ,, ~ u••·•1"4" 0 10 ,-II I 7 11 ~ ::1:11 II I I II II I I II II I I 11 ----------==,r.l.-L ___ ..J 11 r-------i,-;--: □ --□-i II r--7 _______ ./ I II I I I I ~ 1111 I: 1 FAMtl.Y ~ : 11 1FOYER1 'rd coveREo I -I wll I I lL , -~H I I l /71 ~, - I D I l/--1-l : L __________ J t?l~ r--- :~--7 i ~:;:~ l I I L---I ~~---_J DECK ,,, ~ ~ ~ ■ I ■I I J J I 1 '' ARST FLOOR 2,963 SF. 3.070 SF. TOTAL HIGHLAND VIEW HOMES FOR CARLSBAD COASTAL VIEWS LLC IN CARLSBAD, CALIFORNIA BY SPIRE ARCHITECTURAL DESIGNS INC. &:::::;.-=.-~ TWO STORY FLOOR PLAN LOT2 4BEDROOM 31/2 BATH 3CARGARAGE NOYEM8Ellt23,2011 8CAI...IE.: 114" • t',(J' SHEET A2.2 ' ' 7-'I', /. L___: r -------------;-;,--.,,_ ________ : I I 1 / ~ : ,1 ,t_ : 1 /· ~ •I ◄• 1 • ' ,1 I {..,./ -I •► r ✓ I /:t .c :., #'/ I I I I 'I I I I ' ' I I I I I I I ' I I I I u ,.,-- " .,, "'-~ ~ -",u ' I I I I ' I I I r-----------1 : A : I ' I : ◄1: I I __ ....L.. ____ , ______ J : ::::::41-.,.,u,I ◄• I ( -• -----" • ROOF PLAN ;, '~IVM.OWGE Qe,,o..faltlR'l'"1(EA. RIGHT SIDE ELEVATION ' ◄• ;, . -..,,.., .. =~ ----m LEFT SIDE ELEVATION =:TOl"f, m D l:f REAR ELEVATION --.cllllM),-.,..,TT ..... .., FRONT ELEVATION HIGHLAND VIEW HOMES FOR CARLSBAD COASTAL VIEWS LLC IN CARLSBAD. CALIFORNIA BY SPIRE ARCHITECTURAL DESIGNS INC. /1:.:.:..-::.-- ELEVATIONS LOT2 4BEDROOM 31/2 BATH 3CARGARAGE NCJVEM8U 2'. ZOtt 8CM.£: ur • t'.o" ,, SHEET: A2.3 ,, EXHIBITC FORM OF OWNER CERTIFICATION To: City of Carlsbad ("City") From: __________ [name of owner(s)] ("Owner(s)") Address of Property: ___________ ("Property") Date: By signature below, I/we _________ [insert name or names of Owner(s)l hereby certify to the City, under penalty of perjury, that the accessory dwelling unit located on the Property (the "Accessory Dwelling Unit") is being utilized in accordance with the "Agreement Containing Covenants and Restrictions Governing Rental of Affordable Accessory Dwelling Unit" (the "Agreement") recorded against the Property. In accordance with Section 2.2 of the Agreement, I/we provide the following information regarding the Accessory Dwelling Unit: 1. Tenant name: -------- 2. Size of Tenant's household: 3. Accessory Dwelling Unit size (number of bedrooms): 4. Date Accessory Dwelling Unit first occupied by Tenant: ________ _ 5. A copy of the Tenant's annual income certification is attached. This Owner Certification is signed on _______ , 20 _, under penalty of perjury. By: Owner signature Date: Due Date: June 30 of each calendar year. C-1