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HomeMy WebLinkAboutCT 14-01; State & Oak Carlsbad LLC; 2018-0492715; Affordable Housing Agreement/ReleaseRECORDING REQUESTED BY: City of Carlsbad WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office Attn: City Clerk 1200 Carlsbad Village Drive Carlsbad, California 92008 DOC# 2018-0492715 I /Im/ IHI /Ml IHI 1m /MN/ IUI HNI 11/ IR/ MUI IUI Im //j Nov 29, 2018 1 . OFFICIAL RECO~D24 AM Ernest J D S SAN DIEGO COronenburg, Jr., FEES: $0 oo UNTY RECORDER . (S82 Atkins $0 00) PAGES: 9 (Space above for Recorder's Use) AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY (Mixed Income) This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY ("Agreement"), entered into this 20th day of July, 2018, by and between the CITY OF CARLSBAD, a municipal corporation ("City"), and State & Oak Carlsbad, LLC, ("Developer") a Delaware Limited Liability Company is made with reference to the following: A. Developer is the owner of certain real property in the City of Carlsbad, in the County of San Diego, California ("Property") described in Exhibit "A", which is attached hereto and incorporated herein by this reference. B. Developer currently intends to construct a total of twenty-seven (27) units consisting of fourteen (14) residential units and thirteen (13) timeshare units on the Property ("Development"). The City has approved the Site Development Plan for the Development. The City issued the approval subject to certain conditions of approval ("Conditions of Approval"), including a condition requiring the construction and designation of two (2) inclusionary units in the Development as required by Planning Commission Resolution No. 7073. C. Developer is required by the Conditions of Approval to enter into an Affordable Housing Agreement as required and with the content specified by the City's Inclusionary Housing Ordinance (CMC Chapter 21.85). This Agreement is that Affordable Housing Agreement pursuant to Section 21.85 .140 of CMC Chapter 21.85, and shall be executed and recorded prior to the approval of any final map for the Property. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Satisfaction of Affordable Housing Obligation and Conditions of Approval. In order to satisfy the Conditions of Approval for Carlsbad Tract CT 14-01 & Major Village Review Permit RP 14-01, and the requirements of the City's Inclusionary Housing Ordinance (CMC Chapter 21.85). Developer shall provide and designate two (2) 3 bedroom deed restricted dwelling units as affordable to lower income households for 55 years. CA 2/5/2013 3 r,-·: 2. Terms Governing Provision of Affordable Multi-Family Units. Provision of the Affordable Multi-family Units shall be governed by the following terms: 2.1 Size and Bedroom Count. The Affordable Units in the Development shall include two (2) units and with the square footages indicated in "Exhibit B" to this Agreement. 2.2 Affordability Requirements. The Affordable Units shall be restricted to occupancy by households with incomes not exceeding 80% of the median income for San Diego County, adjusted for actual household size. Monthly rents of the Affordable Units shall not exceed 1/12 of 30% of70% of the median household income for San Diego County, adjusted for assumed household size appropriate for the unit pursuant to the Regulatory Agreement. 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 or 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). Median income figures shall be those published annually by the United States Department of Housing and Urban Development. Assumed household size figures shall be provided by the Developer and approved by the City of Carlsbad Housing and Neighborhood Services Department. With respect to each Affordable Unit, the affordability requirements of this Section 2.2 shall continue for 55 years from the date of issuance of a Certificate of Occupancy by the City for such unit. The affordability requirements of this Section 2.2 shall continue for fifty-five (55) years from the date of issuance of a Certificate of Occupancy by the City for such unit or another comparable unit based upon substitution provisions pursuant to the Regulatory Agreement. The affordability requirements of this Section 2.2 shall be set forth in the Regulatory Agreement between the Developer or its successors and the City, provided for below, which shall supersede this Agreement upon recordation of the Regulatory Agreement. 2.3 Schedule for Developing Affordable Multi-family Units. Developer shall provide the Affordable Units concurrent with the Project's market rate units. 3. City Approval of Documents. The following documents, to be approved in writing by the City, shall be used in connection with the rental of Affordable Units. 3 .1 A marketing plan consistent with the terms of this Agreement, establishing the process for seeking, selecting and determining the eligibility of tenants of the Affordable Units. 3 .2 A form of Rental Agreement. 3.3 A Property Management Plan. 3.4 A form ofregulatory agreement between the Developer and the City ("Regulatory Agreement"), following a format designated by the City. CA 5/12/20112 4. Compliance Report. Following completion of construction of the Affordable Units, a Compliance Report meeting the requirements of CMC Section 21.85 .140 of the lnclusionary Ordinance, verifying compliance of all completed Affordable Units with the terms of this Agreement and certified as correct by a third-party, shall be submitted annually to the Housing and Neighborhood Services Director, commencing on the first Report Date that is twelve (12) months from the completion of construction of the Affordable Units. If similar reports on some or all of the Affordable Units are required for regulatory compliance with other financing programs, those reports may be deemed satisfactory for the purpose of this section by the Housing and Neighborhood Services Director, with respect to the Affordable Units covered by such reports, provided that copies of those reports are provided on an annual basis to the Housing and Neighborhood Services Director with a third party certification addressed to the City. 5. Release of Subject Property from Agreement. The covenants and conditions herein contained shall apply to and bind the Director and its heirs, executors, administrators, successors, transferees, and assignees having or acquiring any right, title or interest in or to any part of Property and shall run with and burden the Property until terminated in accordance with the provisions of Section 13 hereof. The Developer shall expressly make the conditions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in such property. The burdens of this Agreement, except for such burdens as may be released as set forth above, shall remain in full force and effect and recorded against the Development for the 55-year duration of this Agreement. 6. Default. Failure of the Developer to cure any default in the Developer's obligations under the terms of this Agreement within ninety (90) days after the delivery of a notice of default from the City (or where the default is of the nature which cannot be cured within such ninety (90) day period, the failure of the Developer to commence to cure such default within the ninety (90) day period or the Developer's failure to proceed diligently to complete the cure of such a default within a reasonable time period but in no event greater than one-hundred eighty (180) days) will constitute a failure to satisfy the Conditions of Approval with respect to the Property and the requirements of Chapter 21.85 of the CMC. The City may exercise any and all remedies available to it with respect to the Developer's failure to satisfy the Conditions of Approval and Chapter 21.85 of the CMC, including but not limited to, the withholding of further building permits for the market rate units within the Development until such cure is completed. 7. Appointment of Other Agencies. At its sole discretion, City may designate, appoint or contract with any other public agency, for-profit or non-profit organization to perform the City's obligations under this Agreement. 8. 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 attorneys' fees and expenses) sustained or incurred because of or by reason of any and all claims, demands, suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of or relating 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. CA 5/12/20113 9. Insurance Requirements. Developer shall obtain, at its own expense, commercial general liability insurance for development of the Property naming Indemnitees as additional named insureds with aggregate limits of not less than five million dollars ($5,000,000), for bodily injury and death and property damage, including coverage for contractual liability and projects and completed operations, purchased by Developer or its successor or assigns from an insurance company duly licensed to engage in the business of issuing such insurance in the State, 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 delivered to the Housing and Neighborhood Services Director prior to the issuance of any building permit for the Property. 10. 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 addressed set forth below: TO THE CITY OF CARLSBAD: Housing and Neighborhood Services Department 1200 Carlsbad Village Drive Carlsbad, California 92008 TO THE DEVELOPER: Matthew Gordon President, Janco Developer 1106 Second St Suite 175 Encinitas, CA 92024 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. 11. Integrated 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. 12. Duration of Agreement. This Agreement shall remain in effect for fifty- five (55) years following the date certificates of occupancy have been issued for all Affordable Units. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of the Developer and the Housing and Neighborhood Services Director. 13. Recording of Agreement. The parties hereto shall cause this Agreement to be recorded against the Property in the Official Records of the County of San Diego. 14. 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, the remaining portions of this Agreement shall nevertheless be and remain in full force and effect. CA 5/12/20114 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above written. DEVELOPER State & Oak Carlsbad, LLC a Delaware limited liab· · By: Name: Matthew Gordon Its: Manager Dated: By:------------- Name: Its: Dated: FCARLSBAD (r 1e Fountam, Housing & Neighborhood Services Director Dated: '7 bo he (Chairman, 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 ojjice(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. Brewer, City Attorney Dated: (c) (1 ~ Ir 'b -----+-, ~~---- CA 5/12/20115 CIVIL CODE§ 1189 • 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 YgQ n \ ~ ) On Ji.A\'\~ \C\ @(JI 8~ore me, US\i2 J2..cb~a Q\ ~\ QO\ctC"t , Date Here Insert Name an Title of the Officer \ personally appeared ---~-'--.!...f\~D-:~~-...zVl~l<:...\..6J:-___::,,,,,__.µ.__,,,.)'-L_~~..L!--J------- Name(s) of Signer(s) who 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 instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above ---------------OPTIONAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document _ Title or Type of Document: _____________ Document Date: _______ _ Number of Pages: ___ Signer(s) Other Than Named Above: ____________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual □ Attorney in Fact D Trustee D Guardian or Conservator D Trustee □ Guardian or Conservator D Other: ______________ _ D Other: _____________ _ Signer Is Representing: _________ _ Signer Is Representing: _________ _ • ©2014 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 • 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 S c,.n K) \ Q,~ On Ju 1 ¥ gO. cn1 <o' before me, 1 Date ) ) Po.t6ci o l C:_resc..e,t'\+·1 . No:tabJ. Pdh\ l c. , Here Insert Name and iftle of the olticer personally appeared ---f'Q""--'e .... Jo~h""""-'-1 e--✓ --+-Fo->.L->ov'----'-r'\....Lfu .......... , -~11J\f-+------~.::-.::-.::.-.::.-~~~~~~~~~~~~~~::~::::- Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person~) whose name~ is/ace subscribed to the within instru111ent and acknowledged to me that Re/she/tAey executed the same in .fflS/herftheir authorized capacity(ies), and that by ms/her/their signatur~ on the instrument the person~, or the entity upon behalf of which the person)G) acted, executed the instrument. Place Notary Sea/ Above 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. ---------------oPnONAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. ·7 Individual I J Trustee [_J Other: ---------------=~ Signer Is Representing: _________ _ • ©2014 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Lots 16, 17 & 18 of Subdivision of a portion of Tract 106 of Carlsbad Lands, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 1710, filed in the office of the County Recorder of San Diego County, December 9, 1919. CA 5/12/20116 ,. EXHIBIT B UNIT SIZES AND BEDROOM COUNT 2 Total: 1,115 SF Three Bedroom Units -Unit 2E and Unit 3E CA 5/12/20117