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HomeMy WebLinkAboutCT 02-29; Trimark Pacific Homes LP; 2005-0850618; Affordable Housing Agreement/ReleaseRecording Requested by: City of Carlsbad When Recorded Mail to: City of Carlsbad City Clerk’s Office i!~lII~l ill !Ill llill lllll lllll llill lllll llill lllll lIlll1111I Ill1 ill1 SEP 30,2005 459 PM ! Illill Ill11 U!II Ill11 lllll Ulll lllll lllll Ulll lllll lllll Uiil lllll lllilU1~1111 Attn: City Clerk 1200 Carlsbad Village Drive Carlsbad, California 92008 (Space above for Recorder’s Use) AFFORDABLE HOUSING AGREEMENT 9, L THIS AFFORDABLE HOUSING AGREEMENT (“Agreement”) is entered into this 12th day of September, 2005 by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as the “City”), and Trimark Pacific Homes, L.P., a California limited partnership (hereinafter referred to as the “Developer”), is made with reference to the following: RECITALS A. Developer is the owner of certain real property in the City of Carlsbad, County of San Diego, State of California, described in “Attachment A”, which is attached hereto and incorporated herein by this reference, and which is the subject of a Tentative Map CT 02-29 which provides conditional approval of the construction of a 39-unit multifamily condominium project (“Project”). B. Chapter 21.85 of the Carlsbad Municipal Code requires 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 (“Affordable Housing Obligation”), as such is defined under Chapter 21.85 of the Carlsbad Municipal Code. Planning Commission Resolution No. 5435 provides that the Affordable Housing Obligation of seven (7) units will be satisfied by the purchase of affordable housing credits, as provided for in Chapter 21.85, Section 21.85.080. NOW, THEREFORE, incorporating the foregoing Recitals and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. That the Recitals Are True And Correct. 2. SATISFACTION OF DEVELOPER’S AFFORDABLE HOUSING REQUIREMENT WILL BE BY THE PURCHASE OF AFFORDABLE . HOUSING CREDITS. W02-SD:80K1\5 1302139.1 091 803 -1- OSFD-I 051 33 covered by Carlsbad Tract No. CT 02-29 by reason of the approvals of the Tentative Map of CT 02-29, including Condition No. 11 listed in Planning Commission Resolution No. 5435, Condominium Permit CP 03-02, and Site Development Plan SDP 08-18, and any other applicable approval. (b) The Developer shall purchase seven (7) Affordable Housing Credits for an amount established by resolution of the City Council and as required by Condition No. 11 of Planning Commission Resolution No. 5435. The fee shall be paid prior to the Developer receiving any building permits for the project. 3. 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. 11 of Planning Commission Resolution No. 5435. 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. CT 02-29. 4. HOLD HARMLESS Developer will indemnity 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 attorneys’ fees and expenses) sustained or incurred because of or by reason of any and all claims, demands, suits, or actions, obtained, allegedly caused by, arising out of or pertaining 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. 5. 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, return receipt requested to the party to receive such notice at the address set forth below: TO THE CITY: City of Carlsbad Housing and Redevelopment Department Attn: Housing & Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, California 92008-2389 W02-SD:80K1\5 130361 2.1 100203 -2- OSFD-105133 TO THE DEVELOPER: Trimark Pacific Homes, LP 61 3 West Valley Parkway, Suite 200 Escondido, CA 92025 Attn: Scot C. Sandstrom, Division President With a copy to: Trimark Pacific Homes, LP 85 Argonaut, Suite 205 Alisa Viejo, CA 92656-4105 Attn: Stephen Hester, Executive Vice President And: Sheppard, Mullin, Richter & Hampton LLP 501 West Broadway, Suite 1900 San Diego, CA 92101 Attn: John E. Ponder, Esquire 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. 6. 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. 7. DURATION OF AGREEMENT This Agreement shall terminate and become null and void upon the payment of the Affordable Housing Credits, or the repeal, termination, or modification of any applicable ordinance which act would render the Affordable Housing Obligation unnecessary or unenforceable. 8. SUCCESSORS This Agreement shall benefit and bind the Developer and any successive owners of Affordable Housing Lots. WO2-SD:80K1\51303612.1 100203 -3- OSFD-105133 9. 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the day and year first above written. DEVELOPER CITY TRIMARK PACIFIC - CASA LA COSTA, LLC, City of Carlsbad, a Municipal corporation a California limited liability company By: TPH, LLC, a California limited liability company, Member-Manager By: ALY Sandra L. Holder Community Development Director / By: Trimark Ventures, Inc., a California corporation, Member If required by City, proper notarial acknowledgment of execution by Developer must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-president **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation secretary under corporate seal empowering the officer(s) signing to bind the corporation. attach a resolution certified by the secretary or assistant APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: W02-SD:SOKIb 130361 2.1 100203 -4- OSFD-105133 STATE OF CALIFORNIA ) 1 COUNTY OF OUuK& ) ss. Wk~u ,a , personally known to me (ur personwwhose nameH iswubscribed to the within instrument and acknowledged to me that helddthey executed the same in his/lwMmr * authorized capacitdnd that by hiskdthek the instrument the person(b/ror the entity upon behalf of which the executed the instrument. WITNESS my hand and official seal. (Seal) My Commission Expires 10 7 W02-SD:80K1\51303612.1 100203 -5- OSFD-105133 EXHIBIT A Casa La Costa - CT 02-29 PARCEL 1 : AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE BUILDING ENVELOPE IN WHICH THE LIVING UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL TO THE RECIPROCAL OF THE NUMBER OF LIVING UNITS WITHIN THAT BUILDING ENVELOPE; BEING A PORTION OF LOT 2 OF CITY OF CARLSBAD DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14818 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 1,2004. TRACT NO. 02-29 VILLAS DE LA COSTA, IN THE CITY OF CARLSBAD, COUNTY OF SAN EXCEPTING THEREFROM EACH LIVING UNIT WITHIN SUCH BUILDING ENVELOPE, AS SHOWN ON THE CONDOMINIUM PLANS DESCRIBED IN PARCEL 2 BELOW. RESERVING THEREFROM THE EXCLUSIVE RIGHT TO POSSESSION AND USE OF ANY EXCLUSIVE USE AREA SHOWN ON CONDOMINIUM PLANS DESCRIBED IN PARCEL 2 BELOW. FURTHER RESERVING THEREFROM ALL THE RIGHTS AND EASEMENTS SET FORTH IN (I) THE DECLARATION OF RESTRICTIONS FOR VILLAS DE LA COSTA OR (11) THE DEED AND DECLARATION ESTABLISHING ACCESS EASEMENT RIGHTS (SUCH DECLARATIONS ARE DESCRIBED BELOW) INCLUDING, BUT NOT LIMITED TO, THE EASEMENTS FOR INGRESS, EGRESS AND GENERAL UTILITY PURPOSES, AND GRANTORS RIGHT AND EASEMENTS TO CONSTRUCT AND MARKET RESIDENCES AND CONSTRUCT RELATED IMPROVEMENTS; AND FURTHER EXCEPTING AND RESERVING THEREFROM ALL EXCEPTIONS AND RESERVATIONS OF RECORD. PARCEL 2: LIVING UNIT NOS. 1 THROUGH 36, AS SHOWN UPON THE VILLAS DE LA COSTA THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, (THE "CON DO M I N I U M PLANS"). CONDOMINIUM PLANS RECORDED JUNE 23, 2004 AS DOCUMENT NO. 2004-0584698, IN RESERVING FROM PARCEL 2 ALL RIGHTS AND EASEMENTS FOR SET FORTH IN THE DECLARATION. PARCEL 3: NON-EXCLUSIVE APPURTENANT EASEMENTS IN AND TO THE ASSOCIATION PROPERTY NOW OR HEREAFTER OWNED BY VILLAS DE LA COSTA HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL BENEFIT CORPORATION (THE "ASSOCIATION") AS SET FORTH IN THE DECLARATION. "ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION. USE OF PRIVATE STREETS AND DRIVES IS SUBJECT TO THE TERMS AND CONDITIONS OF THE ACCESS DECLARATION DESCRIBED BELOW. PARCEL 4: A NON-EXCLUSIVE APPURTENANT EASEMENT FOR INGRESS AND EGRESS OVER THE "DRIVES" WITHIN LOTS 1 AND 2 OF CITY OF CARLSBAD TRACT NO. 02-29 VILLAS DE LA COSTA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14818, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 1, 2004, PURSUANT TO AND SUBJECT TO THE TERMS AND PROVISIONS OF THAT CERTAIN ACCESS DECLARATION (SUCH DECLARATION IS DESCRIBED BELOW). PARCEL 5: THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM PLANS AS BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.