HomeMy WebLinkAboutCT 91-12; Bramalea California Inc; 1996-0016120; Affordable Housing Agreement/Release1 1, .& e e
Recordinq Requested by:
City of Carlsbad
When Recorded Mail to: 32
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
AFFORDABLE HOUSING MITIGATION AGREEMENT
THIS AFFORDABLE HOUSING MITIGATION AGREEMENT ( "Agreement" ) entered into as of September 13, , 1995, by and among 1
CITY OF CARLSBAD, a municipal corporation ("City") and BRAMAl CALIFORNIA, INC., a California Corporation ( "Bramalea") , w. regard to the following facts:
This is an affordable housing mitigation agreement entei into pursuant to Chapter 21.85 of the Carlsbad Municipal Cc
( "Code" ) .
B. Chapter 21.85 of the Code establishes requirements . providing housing that is restricted to and affordable by lowc income households for all approved residential units. Thc requirements are generally referred to as "Inclusionary Hous. Requirements. I'
C. Bramalea is the owner and developer of certain r(
property legally described on attached Exhibit "A" that is loca.
in Local Facilities Management Zone 20 of City ("Brama
Property"). The Bramalea Property is the subject of and 1
received all discretionary approvals from City for a Specific P
and Tentative Subdivision Map (CT 91-12) commonly known as Marinc Point, and which approvals and conditions are contained in C Council Resolution No. 93-260 (Specific Plan) and Ordinance No. 1
257 (Specific Plan), each dated December 7, 1993, and City Couni
Resolution No. 94-83 dated, March 15, 1994 (Tentative Subdivis
Map) -
A.
D. Pursuant to Chapter 21.85 of the Code and the approv
and conditions referred to in Recital C above, Bramalea m
provide housing units restricted to and affordable to lower-inc
households in an amount equal to fifteen percent (15%) of the "B
Residential Units" as defined in Chapter 21.85 of the Code appro
for developed on the Bramalea Property. It is estimated that t requirement will be forty-five (45) units but a final determinat
of the total number of affordable units required will be based the actual maximum number of units approved for development on Bramalea Property.
1
1
I A W m 33 t
E. Laurel Tree Investment, L. P. , a California limil
partnership ( "Laurel Tree"), is the owner of certain real propel legally described on attached Exhibit "B" that is located in Lo(
Facilities Management Zone 5 of City ("Laurel Tree Apartmc
Property"). Metropolitan Area Advisory Committee on Anti-Povei of San Diego, Inc. ("MAAC") , has acquired an option ("Option") acquire the Laurel Tree Apartment Property and intends to deve:
it only with residential units that are restricted to i
affordable by lower-income households in accordance with the Coc Exhibit "C" attached hereto outlines the unit mix and affordabil.
levels of MAAC's intended development of the Laurel Tree Apartmc
Property.
F. Pursuant to Code Sections 21.85.110 and 21.85.120(f), C.
will allow a developer that owns real property that is subject
the Inclusionary Housing Requirements to participate in a Combii
Inclusionary Housing Project where units are constructed l
operated at an alternative development site within the S~
quadrant of City or contiguous quadrants if the Combii
Inclusionary Housing Project is located on the quadrant bounda:
G. Both the Bramalea Property and the Laurel Tree Apartmc
Property are located within the Southwest Quadrant of the City, l
the Laurel Tree Apartment Property generally conforms with .
provisions for location criteria for affordable housing projects
described in Code Section 21.85.120.
H. Bramalea and City desire for Bramalea to meet affordable housing obligation to City and to comply with
applicable Tentative Subdivision Map conditions with respect to Bramalea Property by participating in the Combined Inclusion Housing Project proposed for the Laurel Tree Apartment Prope through a participation payment to MAAC for the development of t project as provided for in that certain Agreement Regarding Payml between Lennar Corporation, a Florida corporation ( "Lennar" ) MAAC dated as of August 28 , 1995, as assigned by Lennar
Bramalea by assignment dated September 13, 1995, copies of wh agreement and assignment are attached hereto as Exhibit 'ID" (I'M Agreement" ) .
other valuable consideration, Bramalea and City agree as follo NOW, THEREFORE, in consideration of the foregoing and
1. SATISFACTION OF BRAMALEA'S INCLUSIONARY HOUS
REOUIREMENTS AND TENTATIVE MAP CONDITIONS
Bramalea shall fully satisfy the Inclusionary Hous Requirements applicable to the Bramalea Property as set forth the Code by paying to MAAC pursuant to the MAAC Agreement (or City or its designee as hereafter provided) the "Payment" defined in the MAAC Agreement (referred to herein as "Participation Payment"), which pursuant to the MAAC Agreem shall be not less than Nine Hundred Twenty Two Thousand F Hundred Dollars ($922,500).
The Participation Payment represents the participation
Bramalea that is necessary to assist in the production of for
five (45) restricted housing units to meet Bramalea's inclusion
2
I I
I i m 0 34
housing requirement based on the intended development of 1
Bramalea Property. If the actual development of housing units
the Bramalea Property results in a restricted housing obligat:
applicable thereto that is: (a) less than forty-five (45) un: then that difference may be tendered by Bramalea to MAAC for M1
to offer to third parties in accordance with Chapter 21.85 of 1
Code; or (b) more than forty-five (45) units, then Bramalea mi
fully satisfy the Inclusionary Housing Requirements as to thc
excess units in accordance with the Code.
Bramalea satisfies Condition Nos. 30, 31 and 32 of 1 Tentative Subdivision Map (CT 91-12) for the Bramalea Propel
( "Conditions") by entering into this Agreement and by fu: satisfying the Inclusionary Housing Requirements applicable to 1 Bramalea Property in accordance with this Agreement. If Brama: or its successor-in-interest does not perform according to 1 terms of this Agreement, Bramalea or its successor-in-interest w: not have satisfied the conditions of Tentative Subdivision Map
91-12) for the Bramalea Property, and City may use any or i remedies available to it with respect to the Bramalea property i its failure to satisfy its Conditions of Approval.
2. ALTERNATE SATISFACTION OF OBLIGATION BY BRAMALEA
In the event, prior to Bramalea's payment of the Participat:
Payment to MAAC pursuant to the MAAC Agreement: (i) MAAC defau: under the MAAC Agreement; (ii) MAAC defaults under the Optic
(iii) the Option terminates; (iv) MAAC is unable to rece.
discretionary project approvals from the City; (v) MAAC is una1
to obtain a construction loan for its development of housing tl
meets the Inclusionary Housing Requirements on the Laurel T:
Apartment Property by June 30, 1997; (vi) the Low-Income Hous.
Tax Credits relating to affordable housing projects ( "Tax Credit: are not allocated to MAAC for the Laurel Tree Apartment Prope:
after no more than two attempts to receive an allocation; or (v. MAAC does not acquire the Laurel Tree Apartment Property, tl Bramalea shall fully satisfy the Inclusionary Housing Requiremei applicable to the Bramalea Property and the Conditions by promp. paying directly to City or City's designee for application to . affordable housing project on that certain real property lega
described on attached Exhibit "E" known as "La Terraza," a to.
amount ( "La Terraza Payment") equal to the number of units wh
are Bramalea's Inclusionary Housing Requirement times an amount :
unit established by the City Council by the adoption of C Council Policy No. 58 on September 12, 1995. Said Pol
established an amount per unit of $28,000 plus interest
determined by the City. The interest rate will approximate City's earnings on its investment funds. If the MAAC Agreem terminates or should any of the above events (i) through (v occur, then Bramalea shall cause the security provided to M
Agreement to be delivered to City, which City shall hold
security for Bramalea's payment obligations provided for in t
Paragraph. Bramalea shall secure the difference between
security provided under the MAAC Agreement and the amount of the
Terraza Payment to the City or the City's designee with a form
security acceptable to the City. City may extend the time wit
which Bramalea may make the alternate payment in City's s
discretion.
3
I 1
I 33 0 0
3. NO FUTURE OBLIGATIONS OF BRAMALEA
Except as provided for in this Agreement, Bramalea shall hi
no responsibility or any other obligation whatsoever as to t
Inclusionary Housing Requirements or the Conditions for t
Bramalea Property or as to the financial agreements for t
development and construction of the affordable housing project
the Laurel Tree Apartment Property or any other project or t process for obtaining discretionary approvals from City for si projects. As additional consideration for City's entry into i
performance of this Agreement, Bramalea waives any right to pur: other options or provisions of Chapter 21.85 of the Code satisfying its affordable housing obligation as to the Brama: Property.
4. INDEMNIFICATION
Bramalea shall defend, indemnify and hold harmless City z its officers, employees and agents from any claim or liabil: arising our of Bramalea's actions in carrying out the terms i conditions of this Agreement except for any such actions aris: out of City's sole negligence, breach of contract or willj misconduct.
5. CONTRACT ADMINISTRATOR
Bramalea and City each designate the individual listed be:
as its Contract Administrator, who is authorized by it to represt it in the routine administration of this Agreement. Cit!
Contract Administrator is authorized to extend the time wit1
which Bramalea is required to perform any provision of tl
Agreement, and/or waive any technical default in the performance
this Agreement. Either party may change its Contract Administrai
by giving written notice of that change
FOR CITY: City Manager
FOR BRAMALEA: Mr. Emile Haddad
to the other party.
6. BINDING EFFECT; ASSIGNMENT
This Agreement shall be binding upon Bramalea and City t
their respective successors-in-interest. Bramalea shall not h(
the right to assign this Agreement or any interest or rit
hereunder without the prior written consent of the City, wh
consent may be withheld in City's sole and absolute discretic
Notwithstanding the foregoing, Bramalea shall not need Cit
consent to an assignment or other transfer that is made
connection with a transfer of the Bramalea Property occurring:
after Bramalea has fully satisfied the Inclusionary Hous
Requirements applicable to the Bramalea Property as provided
Paragraph 1 or 3 hereof or after the transferee posts a letter
credit or other adequate security acceptable to the City to ins satisfaction of Paragraph 1 or 3 hereof; or (ii) prior Bramalea's payment of the Participation Payment so long as s transfer is made either to an entity that is directly or indirec owned or controlled by Bramalea Inc., an Ontario Can Corporation.
4
1 I
I 36 e 0
7. ATTORNEYS' FEES AND COSTS
In the event of any controversy, claim or dispute between
among Bramalea and City arising out of or relating to this
Agreement or breach thereof, the prevailing party shall be entit:
to recover from the losing party reasonable expenses, attornej
fees and costs.
8. SEVERABILITY
In the event any limitation, condition, restriction, coveni or provision contained herein is held invalid, void
unenforceable by any court of competent jurisdiction, the remain: portions of this Agreement shall nevertheless be and remain in fi
force and effect.
9. NOTICES
Any notices required pursuant to this Agreement shall be writing any may be given by personal delivery or by registered certified mail, return receipt requested, to the party at 1 address set forth below. Addresses for notice may be changed written notification thereof to the other party:
TO CITY:
City of Carlsbad Housing & Redevelopment Department Attn: Director
2965 Roosevelt Street, Suite B Carlsbad, California 92008-2389
TO BRAMALEA:
Bramalea California, Inc. Attn: Mr. Emile Haddad
27432 Calle Arroyo San Juan Capistrano, California 92675
10. INTEGRATED AGREEMENT
This Agreement constitutes the entire agreement among ' parties and no modification hereof shall be binding unless redui to writing and signed by all parties hereto.
11. APPLICABLE LAW
All questions pertaining to the validity and interpretation
this Agreement shall be determined in accordance with the laws the State of California applicable to contracts made and to performed within the State of California.
12. RECORDATION
This Agreement shall be recorded in the Officials Records San Diego County, California.
...
5
at 1% > w w
IN WITNESS WHEREOF, the parties hereto have caused tk
Agreement to be executed as of 5ep-kwbef 13 f 1995.
CITY OF CARLSBAD
A Municipal Corporation
B
APPROVED AS TO FORM:
L*aL
9.1 Y*94”. RONALD R. BALL
CITY ATTORNEY
BRAMALEA CALIFORNIA, INC.,
A California Corporation ATTEST:
Wk. h AEETHA 11. RAUTENKRANZ
CITY CLERK
ARB/BRAMALEA.AMD (9/95)
6
I IS 0 W
STATE OF CALIFORNIA ) 3%
COUNTY OF sAAfTptw 1 ) ss.
On SE~TF+IBEZ~ 1% 1445- before me, , personally appearc
v evidence) to be the person@+ whose name0 is/& subscribed to the within instrument and acknowledged to me th,
he/- executed the same in his/&r/tk 'r authorizf capacity(-iss), and that by his/ker/tb 'r signaturew on tl instrument the person(-, or the entity upon behalf of which tl personw acte
WITNESS my han
STATE OF CALIFORNIA
) ss.
COUNTY OF OrwQx 1
On Scotmber 13: 199 5 before me, LbL. r, h3atayk.c P&liC - , personallyappeare
Mifin=,\ FI ~i*y\+p.&'u+p.- personally known to me (ex A '&- -e
SztlZfWry 2- to be tzrson(g) whose name(@ is,& subscribed to the within instrument and acknowledged to me thz
he/&w&&eg executed the same in his/her!+M authori z E capacity(*), and that by his/- ' signature(%) on tl instrument the person(% , or the entity upon behalf of which tf person($) acted, executed the instrument.
WITNESS my hand and official seal.
u LU 111b VI
&-
7
e W *. I '.
39
STATE OF CALIFORNIA ) ) ss. COUNTY OF
WITNESS my hand and official seal.
STATE OF CALIFORNIA
COUNTY OF
he/she/they executed
his/her/their signature(s) on tk
instrument the pers the entity upon behalf of which tk
person(s) acted, ex instrument.
WITNESS my hand and icial seal.
8
9 , 40 e e
,I
,.
EXHIBIT "A"
LEGAL DESCRIPTION OF BRAMALEA PROPERTY
That portion of the Southeast Quarter of Section 21, Township 12 South, Range
West San Bernardino Meridian, in the County of San Diego, State of California,
according to the Official Plat thereof, described as follows:
BEGINNING at the Southeast corner of said Section 21; thence along the South 1
thereof North 89' 00' 11' West 659.80 feet to the most Westerly corner of the
described in deed to Noboru Tabata et al, recorded March 8, 1989, as Document
119007 of Official Records, being the TRUE POINT OF BEGINNING: thence continu:
along said South line North 89' 00' 11' West 2064.60 feet to the South Quartei
corner of said Section 21; thence along the West line of said Southeast Quartc
North oo 42' 11' East 1149.29 feet to the Northwest corner of the land descril
quitclaim deed to George A. Hillbrecht Inc. recorded October 17, 1986, as Doct
No. 47005 of Official Records; thence along the North line of said land South
13' 28' East 2721.32 feet to the East line of said Section 21; thence along si
East line South Oo 33' 09' West 731.24 feet to the Northeasterly corner of sa:
Tabeta Land; thence along the Northerly and Northwesterly boundary of said lax
North 89O 26' 51' West 189.87 feet: and South 48O 31' 42' West 632.57 feet to
TRUE POINT OF BEGXNNING.
EXCEPTING THEREFROM as a mineral interest and not as a royalty interest, all (
gas, hydrocarbons and associated substances in or under said real property, bt
without any right of entry to the surface or subsurface of said real property
provided, however, that such reservation shall prohibit (I) any action which t
interfere with the subsurface or lateral support or structural integrity of SI
real property or of any development or improvement thereto, and (11) any surfi
drilling or any property contiguous to said property within a distance of fivc
hundred (500) feet from any portion of said real property.
EXHIBIT "A"
A-l BS\CARLSBAO.AII
0314% (14) 148-147
,I m ?BWt!lbh& 41 '
LEGAL DESCRIPTION OF BRAMA= PROPERTY
THAT PORTION OF "HE SOUTHEAST QUARTER OF SECTION 21 TOWNSHIP 12 SOUTH, RANGE
WEST SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNL
ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SO-T CORNER OF SAID SECTION 21; THENCE ALONG "HZ SOUTH
LINE THEREOF NORTH 89O 00' 11" WEST 659.80 FEET TO THE MOST WESTERLY COFNER (
"HE LAND DESCRIBED IN DEED TO NOBORU TABATA ET AL, RECORDED MARCH 8, 1989, A!
DOCUMENT NO. 119007 OF OFFICIAL RECORDS, BEING THB TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID SOUTH LINE NORTH 890 00' 11" WEST 2064.60 FEET ?
THE SOUTH QUARTER CORNGR OF SAID SECTION 21; THENCE ALONG THE WEST LINE OF SJ
SOUTHEAST QUARTER NORTH Do 42' 11" ST 1149.29 FEET TO THE NORTHWEST CORNER
THE LAND DESCRIBED IN QUITCLAIM DEED TO GEORGE A. HILLEBRECHT INC., RECORDED
OCTOBER 17, 1986, AS DOCUME3T NO. 47005 OF OFFICIAL RECORDS; mNCE ALONG THI
NORTH LINE OF SAID LAND SOUTH 89O 13' 28" EAST 2721.32 FEET TO THE EAST LINE
SAID SECTION 21; THENCE ALONG SAID BAST LINE SOUTH Oo 33' 09" WEST 731.24 FEE
TO THE NORTHE?STERLY CORNER OF SAID TAEATA LAND; "HENCE ALONG THE NORTHERLY J
NORTHWESTERLY BOUNDARY OF SAID LAND NORTH 89O 26' 51" WEST 189.87 FEET; AND
SOUTH 48O 31' 42" WEST 632.57 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM AS A MINERAL INTEREST AND NOT AS A ROYALTY INTEREST, ALL
OIL, GAS, HYDROCARBONS AND ASSOCIATED SUBSTANCES IN OR UNDER SAID REAL
PROPERTY, BUT WITHOUT ANY RIGHT OF ENTRY TO THE SURFACE OR SUBSURFACE OF SAID
REAL PROPERTY; PROVIDED, HOWEVER, THAT SUCH RESERVATION SHALL PROHIBIT (I) A
ACTION WHICH MIGHT INTERFEm WITH THE SUBSURFACE OR LATERAL SUPPORT OR
STRUCTCTRAL INTEGRITY OF SAID REAL PROPERTY OR OF ANY DEVELOPMENT OR IMPROVEME
THERTO, AND (11) ANY SURFACE DRILLING OR ANY PROPERTY CONTIGUOUS TO SAID
PROPERTY WITHIN A DISTANCE OF FIVE HUNDRED (500) PEET FROM ANY PORTION OF SA11
REAL PROPERTY.
rr A 1
4 e
EXHIBIT "B"
LEGAL DESCRIPTION OF LAUREL TREE APARTMENT PROPERTY
,a m
PARCEL 1:
THAT PORTION OF THE LAND DESIGNATED AS "DESCRIPTION NO. 4, 76.
ACRES" AS SHOWN AND DELINEATED ON RECORD OF SURVEY MAP NO. 571
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNT
DECEMBER 19, 1960, ALSO BEING A PORTION OF LOT "G" OF THE RANC
AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STA
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN T
OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, NOVEMB
16, 1986, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID "DESCRIPTION NO. 4, 76
ACRES"; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL NOR
71'35'51" EAST 676.82 FEET TO THE TRUE POINT OF BEGINNING; THEN
CONTINUING ALONG SAID NORTHERLY LINE NORTH 71'35'51" EAST 560.
THENCE FOLLOWING ALONG SAID EASTERLY LINE, SOUTH 13 ' 3 6 ' 08 I' WE;
5.00 FEET TO A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RAD11
OF 570.00 FEET; THENCE SOUTHERLY 845.02 FEET ALONG SAID CUR'
THROUGH A CENTRAL ANGLE OF 84'56'26"; THENCE SOUTH 71'20'18" EA!
CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 510.00 FEET TO WHICH
FEET TO A POINT ON THE EASTERLY LINE OF SAID DESCRIPTION NO. -
301.37 FEET TO A POINT OF CUSP AND THE BEGINNING OF A NON-TANGEI
RADIAL LINE BEARS NORTH 14'00'09" EAST; THENCE LEAVING THROUGH
CENTRAL ANGLE OF 49'04'27"; THENCE SOUTH 54'55'42" WEST 354.40 FEI
HAVING A RADIUS OF 1349.00 FEET ALONG SAID CURVE THROUGH A CENTK
ANGLE OF 3'35'45"; THENCE NORTH 38'40'03" WEST 200.00 FEET TO TI
BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RAD11
OF 1451.00 FEET; THENCE NORTHERLY 732.93 FEET ALONG SAID CUR1
THROUGH A CENTRAL ANGLE OF 28'56'28" TO THE TRUE POINT (
BEGINNING.
THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS 11.264 ACRES, MORE (
LESS.
PARCEL 2:
Easements for roadway and utility purposes over those certain strips ( land designated as "60.00 foot easement and 66.00 foot easement reserve for roadway and utility purposes" as shown on Record of Survey Map Nc
5715, filed in the Office of the County Recorder of San Diego Count] December 19, 1960 , being a portion of Lot "G" of the Rancho Agua Hedionc in the County of San Diego, State of California, according to Map therec
No. 823, filed in the Office of the County Recorder of San Diego Count] November 16, 1896.
Excepting from said 60.00 foot strip that portion which lies with:
Parcel 1.
The easements herein described are hereby declared to be appurtenant 1 and for the use and benefit of the present and future owners of all ( any portion of "Description No. 4, 76.89 Acres" as shown and delineate on said Record of Survey Map No. 5715.
TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTEW
EXHIBIT "B"
B-1
,. I m e
44
EXHIBIT "C"
LAUREL TREE APARTMENTS UNIT MIX AND UNIT MIX AND
AFFORDABILITY LEVELS
RESTRICTED ANI
AFFORDABLE TO
HOUSEHOLDS WI9 INCOMES NOT UNIT TYPE NUMBER OF UNITS EXCEEDING
1 Bedroom 27 60% of AMI*
2 Bedroom 39 60% of AMI*
3 Bedroom 45 60% of AMI*
27 60% of AMI* 4 Bedroom -
TOTAL : 138
* Area Median Income, San Diego County
EXHIBIT "C" c-1
I. 1 a m
44
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (NAssignmentt') i, made as of September 13, 1995, between LENNAR CORPORATION, a Florida corporation ("Lennar"), and BRAMALEA CALIFORNIA, INC., California corporation ("BCI") .
RECITALS
A. Lennar is a party to that certain "Agreement Regardi Payment" made as of August 28, 1995 ("Agreement"), with Metropolitan Area Advisory Committee on Anti-Poverty of San Di
County, Inc. (WAAC") .
B. Lennar and BCI desire for Lennar to assign the Agreement to BCI under the terms of this Assignment.
For valuable and sufficient consideration received, Lenne and BCI hereby agree as follows:
1. Assiqnment. Lennar assigns to BCI all of Lennar's
right, title, interest and obligations under the Agreement.
assumes all of the obligations and liabilities of Lennar undei the Agreement.
3. Letter of Credit. The "Letter of Credit" (as definc in the Agreement) delivered by Lennar to MAAC shall remain wit MAAC and the security given by BCI to Lennar in connection
therewith shall continue to be held by Lennar.
2. Assumption. BCI accepts Lennar's assignment and
4. Indemnity. BCI shall indemnify, defend, protect anc
hold harmless Lennar from any cost, damage or liability incur] by Lennar with respect to the Letter of Credit and/or the Agreement that arises as a result of any event occurring on 01 after the date of this Assignment.
5. Further Assurances. Lennar and BCI shall promptly
such further acts as are reasonably necessary to implement th Assignment.
1 BS\ASNASM.LEN 091395 (1) E
r. II aD - 6. Counterparts. This Assignment may be signed in
counterparts.
"BCI" "LENNAR"
BRAMALEA CALIFORNIA, INC., LENNAR CORPORATION,
a California corporation
By: By: Printed Name: Printed Name:
Title: Title:
By: By:
Printed Name: Printed Name:
Title: Title:
a Florida corporation
2 BS\ASNASM.LEN 091395 (1)
0 m
49
EXHIBIT "E"
LEGAL DESCRIPTION OF LA TERRAZA PROPERTY
(Certificate of Compliance, Parcel 1)
C.E. 659, M.S. 93-07
All that portion of Parcel 2 of Parcel Map 1188, record6
December 20, 1972, as File No. 340334, being a portion
Fractional Section 23, Township 12 South, Range 4 West, :
Bernardino Meridian, being within the City of Carlsbad, County
San Diego, State of California, being more particularly descril
as follows:
Beginning at the northwest corner of said parcel; thence eastei along the northerly line of said parcel, South 89O26'14" Ea$ 1347.93 feet (record: South 89'27'42" East, 1347.93 PM 1188), the northeast corner of said Parcel 2; thence southerly along 1 easterly line of said parcel, South O"33'08" West, 6.99' (recoi South 0'33'17" West, PM 1188), to a line being 45.00 feet westei and parallel with the centerline of El Camino Real as shown on Rc Survey 1800-1; thence southerly and parallel with said centerlir South 37O03'37" West, 293.58 feet (record: South 37O03'56" We; RS. 1800-l), to the beginning of a tangent 1545.00 foot rad: curve, concave southeasterly, thence southwesterly along the arc said curve, through a central angel of 24'37'58", a distance 664.24 feet, to an intersection with the southerly line of 1 above described Parcel 2; thence westerly along said southei line, North 89'32'21" West, 903.35 feet (record: North 89'32'(
West, PM 1188), to the southwest corner of said Parcel 2; the1 northerly along the westerly line of said Parcel 2, North 0'33'! East, 845.89 feet (record: North OO34'26" East, PM 1188), to 1 point of beginning.
This parcel contains: 21.04 acres.
EXHIBIT "E"
E-l
()I) ..I)
47
(Remainder Parcel)
C.E. 659, M.S. 93-07
All that portion of Parcel 2 of Parcel Map 1188, recordt
December 20, 1972, as File No. 340334, being a portion
Fractional Section 23, Township 12 South, Range 4 West, I
Bernardino Meridian, being within the City of Carlsbad, County
San Diego, State of California, being more particularly descril as follows:
Beginning at the southeast corner of the above described Parcel thence northerly along the easterly line of said Parcel 2, No1
OO33'08" East, 685.23 feet (record: North OO33'17" East, PM 118t to an intersection with a line being 45.00 feet easterly i parallel to the centerline of El Carnino Real, as shown on Rc Survey 1800-1; thence southerly along said sideline, Sol
37O03'37" West, 171.99 feet, to the beginning of a tangent 1455# foot radius curve, concave southeasterly, thence southwestei
along arc of said curve, through a central angle of 23°52'51", distance of 606.44 feet, to an intersection with the southerly 1:
of said parcel 2: thence easterly along said southerly line, Sol
89"32'21" East, 352.64 feet, (record: South 89O32'01" East,
1188), to the southeast corner of said Parcel 2, also being 1 point of beginning.
This parcel contains: 3.31 acres.
I--- * =-EXHIBIT "eB" - 48
&, PA@~PL MAP f/&8 /N TH@ CiW cw c4a -gSk?Q, STAT. OF CPL/P~RN(R. PORTfdN of coum OPSW @
- PRePbm.'q\ 1
,-A Rmu$*?w Am, I I
Lg&iTdND:
--c_ QIEJkUL4w >
L.CC4.2d'
I
86 CORNPR
T-,_? - -.-
w EXHIBIT I'
MIiAC AGREEMENT
m
AGREEMENT REGARDING PAYMENT
(Lennar) d e
This Agreement Regarding Payment (the ltAgreementtt) i made as of August 28, 1995 by and between Metropolitan Area
Advisory Committee on Anti-Poverty of San Diego County, Inc. ("MAAC") and Lennar Corporation, a Florida corporation ("Lenna in consideration of the following:
RECITALS
A. Lennar may acquire a note secured by a mortgage
(the l1MortgageI1) with respect to certain real property in the City of Carlsbad, County of San Diego, California (the llCitylt) which is more particularly described on Exhibit A attached her and incorporated herein by this reference (the tlMariner's Poir Propertytt) on which a residential subdivision (the llMariner's
Point Developmentt1) may be built. The current owner of the Mariner's Point Property is Bramalea California, Inc., a California corporation (llBramaleatt). In addition, Lennar is negotiating with Bramalea and Bramalea's creditors to acquire Bramalea's assets. For purposes of this Agreement, the Mortga and the Mariner's Point Property shall be referred to as the ltProperty. It
B. MAAC is the optionee under that certain Amended
and Restated Option Agreement dated February 11, 1995 by and between Laurel Tree Investment, L.P., a California Limited Partnership, as optionor, and MAAC, as optionee (the llOption Agreementtt), pursuant to which MAAC has the option to purchase
certain real property located in the City, which real property more particularly described on Exhibit B attached hereto and incorporated herein by this reference (the ltProject Propertyvt)
MAAC proposes to purchase the Project Property and to develop with an apartment project containing at least 135 units
restricted and affordable to low-income households in accordar with Chapter 21.85 of the Carlsbad Municipal Code (the
1lPro j ectll) .
C. Pursuant to Chapter 21.85 of the Carlsbad
Municipal Code, in connection with the development of the Mariner's Point Development, the owner of the Mariner's Point
Property must provide a certain number of housing units restricted and affordable to lower income households (I'Restric Unitst1) in the City of Carlsbad. It is anticipated that based the size of the proposed Mariner's Point Development, the own€
of the Mariner's Point Development will be required to provide forty-five (45) Restricted Units within the City. Bramalea ar the City have negotiated and intend to enter into that certair
51 0 W
Affordable Housing Mitigation Agreement (the I1Inclusionary Agreement") in which the City and Bramalea (or its successor o
legal representative) agree that in lieu of building such Restricted Units within the Mariner's Point Development, the owner of the Mariner's Point Property may satisfy its inclusionary housing obligations with respect to the Mariner's Point Property by providing certain sums. The Inclusionary Agreement requires the making of the 1tPayment9q (as defined below). If Lennar acquires the Mariner's Point Property, then Lennar intends to use this Agreement and the Payment to satisf such inclusionary housing obligations with respect to the
Mariner's Point Property. If Lennar does not acquire the Mariner's Point Property, then Lennar does not intend to use t Payment to satisfy such inclusionary housing obligations with respect to the Mariner's Point Property, but Lennar and MAAC intend that Lennar will nevertheless be obligated to make the Payment to MAAC pursuant to the terms of this Agreement and th
Lennar may, subject to obtaining all necessary third parties approvals, sell the rights arising from such Payment (the "Payment Rights") to a property owner that has inclusionary housing obligations as to its property, which obligations may satisfied by the payment of money.
D. MAAC intends to form a limited partnership (the l*Partnershiptl) of which it will be a general partner to acquir the Project Property and to develop the Project. MAAC intends make the Payment that it receives from Lennar available to the Partnership either in the form of a contribution or a loan to fund the acquisition of the Project Property and the developme of the Project.
E. MAAC intends to apply to the California Tax Cwe Allocation Committee (ltTCACtv) for a reservation of low-income housing tax credits (the "Tax Creditstt) for the Project. The Credits will belong to the Partnership and MAAC intends to adm to the Partnership one or more investor limited partners to wh the Tax Credits will be allocated in exchange for their participation in the Partnership.
F. MAAC and Lennar desire to enter into this Agreement to set forth the terms and conditions under which MA will receive from Lennar and use the Payment.
NOW, THEREFORE, in consideration of the foregoing an
for other good and valuable consideration, the amount and sufficiency of which is hereby acknowledged, the parties agree f CI 1 lows :
2.
52 e w
1. Definitions. Capitalized terms used in this
Agreement and not otherwise defined in this Agreement shall ha the meanings given to them below.
(a) "Project Construction Loan" shall mean the
construction loan from the Project's primary construction lend
(b) "Construction Loan Escrowll shall mean the
escrow established to fund the Project Construction Loan.
(c) "Construction Loan Closing Date" shall mea the date that the deed of trust securing the Project Construct
Loan is recorded in the Official Records of San Diego County, California.
(d) "PaymentIt shall equal $922,500; provided,
however, that such amount is predicated on MAAC also receiving approximately $500,000 from the California Home Fund Program o other sources for use in connection with the Project (the "HOM Fund Amount"). Amount on or before the Construction Loan Closing Date, then t Payment shall be increased by $53,333 ($1,185.18 per unit time
45 units) to $975,833. If MAAC receives some but not all of t
HOME Fund Amount by that date, then the Payment shall be
increased in proportion to the amount of the deficit (based up
the assumption that the HOME Fund Amount shall equal
$500,000.00). If MAAC receives all: or any part of the HOME Fu Amount after the Construction Loan Closing Date, then MAAC sha
promptly repay all or the applicable portion of the increased amount of the Payment to Lennar.
(e) "Letter of Credit" shall mean the irrevoca
letter of credit in favor of MAAC as beneficiary in the amount
$975,833.00, dated August - , 1995 and issued by NationsBank
Florida, N.A., a copy of which Letter of Credit is attached
hereto as Exhibit C, and any renewal or replacement thereof pursuant to Paraqraphs 4(b) and/or 15 below.
(f) I1Kaizat1 shall mean Kaiza Poinsettia
Corporation, a California corporation.
(4) "Kaiza Inclusionary Agreement" shall mean
Affordable Housing Mitigation Agreement by and among the City Carlsbad, Municipal Corporation and Kaiza concerning Haiza's
inclusionary housing obligations with respect to its real property in the City.
acknowledges receipt from Lennar of the original Letter of Credit.
If MAAC does not receive any of the HOME Fund
2. Receipt of Letter of Credit. MAAC hereby
If the City Council of Carlsbad fails to approve the
3.
L t
e w
Kaiza Inclusionary Agreement on or before September 14, 1995, then MAAC shall promptly return the Letter of Credit to Lennar
and this Agreement shall automatically terminate. Otherwise, MAAC shall continue to hold the Letter of Credit and shall han the Letter of Credit in accordance with the provisions of this Agreement.
notice (the 'IFunding Noticell) from MAAC to deposit the Payment into the Construction Loan Escrow, Lennar shall, within five ( business days after receipt of the Funding Notice, deposit the entire Payment into the Construction Loan Escrow by wire trans
or certified check or cashier's check, with written instructio to the escrow holder to release such funds to MAAC or the
Partnership on the Construction Loan Closing Date. All intere accruing on the Payment while in the Construction Loan Escrow prior to the Construction Loan Closing Date shall accrue for t benefit of Lennar. MAAC may not give the Funding Notice prior December 31, 1995, and shall use commercially reasonable effor to keep Lennar advised of the approximate date that MAAC anticipates MAAC will require the Payment to be deposited into the Construction Loan Escrow. Payment into the Construction Loan Escrow, and provided that Lennar does not in any way contest the release of the Payment
MAAC, the Letter of Credit shall be ineffective and MAAC shall promptly return the Letter of Credit to Lennar.
4. A?mlication of Letter of Credit.
3. Delivery of Payment by Lennar. Upon written
Upon Lennar's deposit of the
(a) Lennar's Failure to DeDosit Payment into Escrow. Payment into the Construction Loan Escrow in the manner and within the time set forth above, MAAC shall give Lennar an additional written notice (the "Default Noticel') and an
additional five (5) days after Lennar's receipt of the Default Notice to cure such default by depositing the entire Payment i the Construction Loan Escrow by wire transfer, cashier's check certified check, with written instructions to the escrow holde to release such funds to MAAC or to the Partnership on the Construction Loan Closing Date. If Lennar fails to so cure su default, then MAAC shall have the right to draw down on the Letter of Credit up to the full amount of the Payment and to deposit such amount into the Construction Loan Escrow. In SUC event, the funds so deposited into the Construction Loan Escra shall be handled by the escrow agent in accordance with
instructions from MAAC.
In the event that Lennar fails to deposit the entire
(b) Lennar's Failure to Renew Letter of Credit
199 The Letter of Credit has an expiration date of August -1 Lennar hereby agrees and covenants to automatically renew the
4.
0 w 5
Letter of Credit for periods of not less than one (1) year eacl until the Letter of Credit is either drawn upon, or replaced w cash, all in accordance with the terms hereof,
thirty (30) days prior to the expiration of such Letter of Credit, Lennar shall cause to be delivered to MAAC evidence reasonably substantiating the fact that such Letter of Credit
been extended for at least one more year, If Lennar fails to cause MAAC to be provided such evidence prior to such date, th MAAC may, after giving five (5) days' prior written notice to
Lennar demanding evidence of such renewal, draw down on the Letter of Credit prior to its expiration and deposit the proce thereof into the Construction Loan Escrow. Any proceeds so deposited, up to the amount of the Payment payable hereunder ( it may be adjusted pursuant to Paraqraph lld), above) shalz be deemed to have been delivered to the Construction Loan Escrow
accordance with the provisions of Paraaraph 3 above. In the event that the proceeds of the Letter of Credit so deposited i the Construction Loan Escrow exceed the amount of the actual Payment payable hereunder (due to any adjustment pursuant to Paraqraph l(d1 above), such excess shall be returned to Lennar upon the close of the Construction Loan Escrow.
5. Cash Alternative. Lennar shall have the right any time, to replace the Letter of Credit by depositing the su of $975,833.00 into the Construction Loan Escrow with instructions to the escrow holder to release such funds to MAA on the Construction Loan Closing Date. Such deposit shall be made in cash or by cashier's or certified check or by wire transfer of funds. Such deposit shall be deemed to have been deposited to the Construction Loan Escrow in accordance with t provisions of ParaqraPh 3 above. In the event that the amount such deposit exceeds the amount of the actual Payment payable hereunder (due to any adjustment pursuant to Paragraph l(d) above), such excess shall be returned to Lennar upon the close
the Construction Loan Escrow. Upon receipt by the Constructio Loan Escrow of $975,833.00 in accordance with the provisions o this Parasraph 5, MAAC shall promptly return the Letter of Cre to Lennar. Construction Loan Escrow prior to the Construction Loan Closin Date shall accrue for the benefit of Lennar.
6. Use of Funds bv MAAC. MAAC agrees that it shal use the Payment only to develop the Project, which may include the acquisition of the Project Property.
defaults under this Agreement at any time, MAAC shall have all rights and remedies provided to it by law or equity including without limitation the right to seek specific performance of
Lennar's obligations hereunder.
No later than
All interest accruing on such funds while in the
7, Default bv Lennar. In the event that Lennar
A default by Lennar under thi
5.
w 55 e
Agreement shall be deemed to have occurred if the issuing bank fails to honor the Letter of Credit in full for any reason
whatsoever except the expiration thereof in accordance with it terms.
8. Default bv MAAC; Events of Termination. If: ( MAAC defaults under this Agreement; (ii) MAAC defaults under t
Option Agreement and either (a) MAAC does not obtain a waiver such default from the optionor under the Option Agreement, or MAAC fails to cure any such default after notice thereof from optionor; (iii) the Option Agreement terminates for any reason and is not reactivated within thirty (30) days of such termination; (iv) MAAC withdraws its application to the City f discretionary Project approvals without refiling an applicatio
therefor or the City denies that application; (v) the Construction Loan Closing Date does not occur by June 30, 1997
(vi) MAAC is unable to secure the Tax Credits for the Project; (vii) MAAC does not acquire the Project Property, then MAAC sh immediately return the Letter of Credit and any sums deposited into the Construction Loan Escrow by Lennar to Lennar and this Agreement shall automatically terminate.
Point Property. The amount of the Payment assumes that the
development of the unrestricted housing units on the Mariner's Point Property obligates Lennar to participate in forty-five ( Restricted Units. The amount of tkie Payment will not increase decrease if the actual development of unrestricted housing uni on the Mariner,s Point Property results in a restricted housin obligation applicable thereto that is more or less than forty-
five (45) Restricted Units. If that obligation is less than forty-five (45) Restricted Units, then, because the amount of Payment is based on forty-five (45) Restricted Units, Lennar w have available to it one or more Excess Restricted Units (the term ltExcess Restricted Unitstt as used herein means forty-five
(45) Restricted Units less the actual number of Restricted Uni required to be provided in connection with the development of Mariner's Point Property) which may be used to satisfy certain inclusionary housing obligations with respect to other residential developments in the City, subject to the City's approval. The rights to the Excess Restricted Units may be
retained by Lennar for use in connection with its development other property in the City, or Lennar may offer the Excess Restricted Units to MAAC for MAAC to offer to third parties in accordance with Chapter 21.85 of the Carlsbad Municipal Code.
the event that MAAC agrees to participate in the sale of the rights to the Excess Restricted Units to a third party, and su sale actually occurs, MAAC shall pay to Lennar the considerati
received by MAAC for those units within three (3) business day after MAAC's receipt thereof; provided, however, that nothing
9. Effect of Chanqes in Development of Mariner's
6.
31 1) w
contained herein shall obligate MAAC in any manner to particir in or be responsible for the sale or offer of the Excess Restricted Units.
10. Lennar's Obliqation. Except as provided in
Paragraphs 2 and 8 of this Agreement, Lennar's obligation to n the Payment as provided herein shall not in any manner whatsoc be altered, abrogated, impaired or affected by any circumstanc
fact, event, act or omission, including, without limitation ar of the following: (i) Lennar's failure to acquire the Mariner' Point Property, (ii) the failure of Bramalea (or of any succes
or legal representative of Bramalea, including without limitation, Bramalea's trustee in bankruptcy) to obtain the City's approval of the Inclusionary Agreement, (iii) the fail1 of Bramalea (or of any successor or legal representative of Bramalea, including without limitation, Bramalea's trustee in bankruptcy) to enter into the Inclusionary Agreement after it been approved by the City Council of Carlsbad, (iv) Bramalea'z
negotiations or transactions with any other party, including without limitation, Lennar, Hillwood Mariner's Point, Ltd., a Texas limited partnership or any affiliate thereof (collective nHillwood*l) and/or the City, (v) Lennar's negotiations or transactions with any other party, including without limitatic Bramalea, Hillwood and/or the City, or (vi) the reduction in t
number of Restricted Units required to be provided in connectj with the Mariner's Point Development.
11. MAAC'S Reliance on Payment. Lennar acknowledge and agrees that without the Payment, MAAC will not have sufficient funds to develop the Project, that from and after t date of this Agreement, MAAC will proceed in reliance on Lennz agreement to pay the Payment in accordance with the terms of t
Agreement and that MAAC's decision to acquire the Project Property and to go forward with the Project will be based in E on such reliance. Without limiting the foregoing, Lennar acknowledges and agrees that in MAAC's application to TCAC foi the Tax Credits, in MAAC's applications to the California Homc Fund Program and to other lenders for financing for the Projec and in MAAC's presentation of the Project to investors, lrIAAC intends to show the Payment as a committed source of funds for
the development of the Project. Lennar understands that the deadline for the submission of MAAC's application to the
California Home Fund Program is September 15, 1995.
Lennar. Lennar hereby represents and warrants to and agrees P
MAAC as follows:
12. Representations, Warranties and Covenants of
(a) Oraanization of Lennar. Lennar is a corporation duly organized and existing under the laws of the
7.
0 5
State of Delaware, and has the full power and authority to ent into, deliver, perform and carry out the terms of this Agreeme
The execution and delivery of this Agreement and the performar by Lennar of its obligations hereunder will not violate or constitute an event of default under the terms or provisions c any agreement, document or instrument to which Lennar is a par or by which Lennar is bound.
(b) Authoritv to Enter Into Aqreement. Lennar
entering into this Agreement in the ordinary course of its business and all proceedings required to be taken by or on bek
of Lennar to authorize it to enter into this Agreement have be duly and properly taken, and, effective upon the execution of this Agreement by Lennar, this Agreement is the valid and bind
obligation of Lennar and is enforceable against Lennar in accordance with its terms. For purposes of due diligence and as a condition precedent to the effectiveness of this Agreemer Lennar covenants and agrees that on or before September 10, 15
Lennar shall provide to MAAC resolutions, certified by Lennar'
corporate secretary, of Lennar's board of directors authorizir
Lennar to enter into this Agreement and perform hereunder. If Lennar fails to deliver such certified resolutions by such dat then MAAC may, after giving five (5) days' prior written notic to Lennar demanding such certified resolutions, draw down on t
Letter of Credit and deposit the proceeds thereof into the
Construction Loan Escrow. Any proceeds so deposited, up to tk amount of the Payment payable hereunder (as it may be adjustec pursuant to Paragraph l(d), above) shall be deemed to have bee
delivered to the Construction Loan Escrow in accordance with t provisions of Paragraph 3 above. In the event that the procec
of the Letter of Credit so deposited into the Construction Lo? Escrow exceed the amount of the actual Payment payable hereunc (due to any adjustment pursuant to Paragraph l(d) above), suck
excess shall be returned to Lennar upon the close of the Construction Loan Escrow.
(c) Survival. All representations, warrantieE and covenants made by Lennar in this Agreement shall be true L
the execution of this Agreement and shall survive the payment
the Payment to MAAC.
hereby represents and warrants to and agrees with Lennar as
follows:
13. Representations and Warranties of MAAC. MAAC
(a) Oraanization of mc. MAAC is a nonprofit
corporation duly organized and existing under the laws of the State of California, and has the full power and authority to enter into, deliver, perform and carry out the terms of this Agreement. The execution and delivery of this Agreement and 1
8.
e W
performance by MAAC of its obligations hereunder will not viol or constitute an event of default under the terms or provision
of any agreement, document or instrument to which MAAC is a pa or by which MAAC is bound.
(b) Authoritv to Enter Into Asreement. All proceedings required to be taken by or on behalf of MAAC to
authorize it to enter into this Agreement have been duly and properly taken, and this Agreement is the valid and binding obligation of MAAC and is enforceable against MAAC in accordan with its terms.
(c) Survival. All representations, warranties and covenants made by MAAC in this Agreement shall be true-upo the execution of this Agreement and shall survive the payment the Payment to MAAC.
14. Transfer of Letter of Credit to City. In the event that, either by the terms of this Agreement, or by mutua agreement entered into between MAAC and Lennar, Lennar's obligation to deliver the Payment to MAAC hereunder is cancel1 subsequent to the approval by the City Council of Carlsbad of Inclusionary Agreement to which this Agreement is an exhibit, then MAAC shall promptly assign MAAC's beneficial interest in Letter of Credit to the City; provided, however, that all cost related to such assignment, including without limitation, any
transfer fee charged by the issuer of the Letter of Credit, sh be paid by Lennar.
15. Bindins Effect: Assignment. This Agreement sha be binding upon the parties hereto and their respective heirs, representatives, transferees, successors and assigns. Lennar
shall not have the right to assign this Agreement or any inter or right hereunder or under the Construction Loan Escrow witho the prior written consent of MAAC, which consent may be withhe in MAAC's sole and absolute discretion. The parties acknowled that if Lennar does not acquire the Property, then it is the parties' understanding that Lennar intends, subject to obtaini all necessary third party approvals, to transfer the Payment Rights to another property owner that desires to satisfy its inclusionary housing obligations by the payment of money. Therefore, notwithstanding the second sentence of this Paraara
- 15, Lennar shall not need MAAC's consent to an assignment of t Payment Rights provided that (i) the assignee assumes all of t
obligations and liabilities of Lennar under this Agreement, an (ii) notwithstanding any such assignment, Lennar's Letter of Credit, and any funds deposited in the Construction Loan Escro by Lennar pursuant to Paragraphs 3, 4(a) or 5 above, or by MAA after drawing on Lennar's Letter of Credit pursuant to Paragra
4 (a) or 4(b) above (the "Lennar Fundst1), shall continue to be
9.
0 W 59
held by MAAC and/or the Construction Loan Escrow and handled i accordance with the terms of this Agreement; provided, however that Lennar's Letter of Credit and/or any Lennar Funds held by the Construction Loan Escrow will be returned to Lennar upon t occurrence of all of the following: (a) Lennar's assignee of t
Payment Rights has either delivered to MAAC a letter of credit issued by a commercial bank acceptable to MAAC in the same for
and for the same amount as the Letter of Credit attached heret as Exhibit C, which replacement letter of credit shall be deem to be the Letter of Credit under this Agreement, or has delive
to the Construction Loan Escrow the amount described in Paragr
5 in accordance with Paragraph 5 above, and (b). Lennar's assig of the Payment Rights has executed and delivered to MAAC an agreement satisfactory to MAAC in which such assignee waives a guarantor and suretyship defenses in connection with its deliv
of a letter of credit or funds pursuant to phrase (a) above. is the parties' understanding that any such assignee of the Payment Rights may, subject to such assignee's compliance with
the Carlsbad Municipal Code and obtaining of all necessary thi party approvals, use the Payment Rights to eliminate forty-fiv
(45) Restricted Units within its project. Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge and agree that the obligations hereunder of Lennar and/or of any assignee of the Payment Rights shall in no event
conditioned upon such assignee being able to eliminate forty-f
(45) units within its project. It is hereby expressly underst and agreed that, notwithstanding any assignment made pursuant this Parasraph 15, Lennar shall remain primarily liable for a1
of its obligations under this Agreement and shall not be relea therefrom, and as such, Lennar shall not in any manner be deem
a surety or guarantor of the obligations of any assignee and Lennar shall not be entitled to any defenses that would be available to a surety or guarantor.
given hereunder shall also be given to Laurel Tree Investment,
L.P., shall be in writing and shall be deemed given upon (a) personal service or delivery by messenger or courier, (b) on t
date shown on the return receipt as the date of first attempte delivery, following deposit in the United States certified mai postage prepaid, return receipt requested, (c) on the date sho on the courier's records as the date of first attempted delive
following deposit with a reputable overnight courier or servic
or (d) facsimile transmission (confirmation received), provide hard copy of such transmission shall be thereafter delivered b one of the methods described in the foregoing (a) through (c).
The addresses of the respective parties are as set forth below such other addresses and to such other persons as the parties hereafter designate by written notice to the other parties hereto:
16. Notices. All notices required or permitted to
10.
60 8 e
To Lennar: Lennar Corporation
8190 State Road 84 Davie, Florida 33324 Attn: Jonathan M. Jaffe Telephone: (305) 940-0537 Fax No. : (305) 452-1626
copy to: Rubin, Baum, Levin, Constant, Friedman & Bilzin
2500 First Union Financial Cente Miami, Florida 33131-2336 . Attn: Brian L. Bilzin, Esq. Telephone: (305) 374-7580 - Fax No. : (305) 374-7593
copy to: Bramalea California, Inc.
27432 Calle Arroyo San Juan Capistrano, CA 92675 Attn: Emile Haddad
Telephone: (714) 488-8850 Fax No, : (714) 488-8847
copy to: Hamilton & Samuels
100 Bayview Circle, Suite 6000 Newport Beach, CA 92660
Attn: William L. Steel, Esq. Telephone: (714) 721-7200 Fax No. : (714) 721-7400
To MAAC: MAAC Project
140 West 16th Street National City, CA 91950 Attn: Roger Cazares
Telephone: (619) 474-2232 Fax No.: (619) 474-5035
copy to: Catellus Development Corporatior
1262 Kettner Boulevard San Diego, CA 92101
Attn: Steve Kuptz Telephone: (619) 231-3602 Fax No,: (619) 696-9093
copy to: Riordan & McKinzie
300 S. Grand Avenue, 29th Floor Los Angeles, CA 90071 Attn: Lance Bocarsly, Esq. Telephone: (213) 229-8454 Fax No.: (213) 229-8550
11.
0 e
To Laurel Tree Investment, L.P.:
Laurel Tree Investment, L.P. c/o Dwight Spiers Spiers Enterprises
23 Corporate Plaza, Suite 139 Newport Beach, CA 92660 Telephone: (714) 644-5718
Fax No.: (714) 644-5714
Rutan & Tucker
611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Telephone: (714) 641-3450
Fax No.: (714) 546-9035
17. CounterDarts. This Agreement may be executed i
several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that parties are not signatories to the original or the same counterpart.
copy to: Anne N. Lanphar, Esq.
18. Time of Essence. Time is of the essence of thi Agreement.
supersedes any prior agreement, oral or written, and contains entire agreement between the parties pertaining to the subject matter hereof.
20. No Third Partv Beneficiaries. No party other t
MAAC and Lennar, and their express successors and assigns to t
Agreement, shall have any rights under this Agreement or to ar Payment pursuant to this Agreement, including without limitati
any party who owns or hereafter acquires the Mariner‘s Point Property.
prevailing party in an action or proceeding between the partie hereto with respect to this Agreement and the transactions contemplated hereby shall be entitled to have and recover all costs, expenses and reasonable attorneys‘ fees incurred in connection therewith, including any such fees and costs incurr upon any appeals. This Agreement shall be interpreted in
accordance with the laws of the State of California. The
19. Merser of Prior Aareements. This Agreement
21. Attorneys’ Fees; Governina Law; Headings. The
12.
0 e
paragraph headings of this Agreement are for convenience only
are not to be used in the interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first written above.
MAAC:
METROPOLITAN AREA ADVISORY COMMITTEE ON ANTI-POVERTY OF SAN
DIEGO COUNTY, INC.! a California
nonprofit corporation
By:
By: Name: Title:
LENNAR:
66113.7
13.
c 1
63 e-! .I
EXHIBIT A e
LEGAL DESCEUPTION
(B-w
That portion of the Southeast Quarter of Section 21, Township 12 South, Ran
West San Bernardino Meridian, in the County of San Diego, State of Californ
according to the Official Plat thereof, described as follows:
BEGINNING at the Southeast corner of said Section 21; thence along the Sout
thereof North 89O 00' 11' West 659.80 feet to the most Westerly corner of t
described in deed to Noboru Tabata et al, recorded March 8, 1989, as Docume
119007 of Official Records, being the TRUE POINT OF BEGINNING: thence conti
along said South lfne North 83O 00' 11' West 2064.60 feet to the South Quar
corner of said Section 21; thence along the West line of said Southeast Qua
North Oo 42' 11. East 1149.29 feet to the Northwest corner of the land desc
quitclaim deed to George A. Hillbrecht Inc. recorded October 17, 1986, as DI
No. 47005 of Official Records: thence along the North line of said land Sou
13' 28' East 2721.32 feet to the East line of said Section 21; thence along
East line South Oo 33' 09' West 731.24 feet to the Northeasterly corner of I
Tabsta Land; thence along the Northerly and Northwesterly boundary of said :
North 89O 26' 51' West 189.87 feet: and South 48O 31' 42' West 632.57 feet I TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM a8 a mineral interest and not as a royalty interest, al:
gas, hydrocarbons and associated substances in or under said real property,
without any right of entry to the surface or subsurface of said real propert
provided, however, that such reservation shall prohibit (I) any action whicl
interfere with the subsurface or lateral support or structural integrity of
real property or of any development or improvement thereto, and (11) any SUI
drilling or any property contiguous to said property within a distance of ff
hundred (500) feet from any portion of said real property. c
e e 64
EXHIBIT 3 -
ORDER NO. 1102530
LEGAL DESCRIPTION.
THE LAND REFERRED TO HEREIN fS SITUATED IN THE STATE OF CALIF01
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 15661, IN THE CITY OF CARLSBAD, COLWJ
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE CC
RECORDER OF SAN DIEGO COUNTY, MAY 5, 1989 AS FILE NO. 89-23967
OFFICIAL RECORDS.
PARCEL B:
EASEMENTS FOR ROADWAY AND UTILITY PURPOSES OVER THOSE CERTAIN ST.
OF LAND DESIGNATED As "60.00 FOOT EASEMENT AND 66.00 FOOT EASE1
RESERVED FOR ROADWAY AND UTILITY PURPOSES", As SHOWN ON RECORI
SURVEY MAP NO. 5715, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
DIEGO COUNTY, DECEMBER 19, 1960, BEING A PORTION 0F.LOT "G" OF
RANCHO AGUA HEDIONDA, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORI ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COT
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896.
EXCEPTING FROM SAID 60.00 FOOT STRIP THAT PORTION MCH LIES WI'I
PARCEL A ABOVE.
THE EASEMENTS HEREIN DESCRIBED AR& HEREBY DECLARED TO Bl2 APPURTEh
TO AND FOR THE USE AND BENEFIT OF THE PRESENT AND FUTURE OWNERS OF OR ANY PORTION OF "DESCRIPTION NO. 4, 76.89 ACRES" AS SHOWN
DELINEATED ON SAID RECORD OF SURWY MAP NO. 5715.
--..-- ---~~N."fiI,"--. to ,OTh=uy&z-- "- e mrr:mmwsaa
-IT "C"
6
IRREVOWLE STWBY LETTER ff CRE3IT CIMENDMENT
IBBuEDSlTEl llWe95
L/C NO, BM-628e33-895
APPLICANT1 LENNCIR CORPORRTION 700 N.W. lB7TH RVENtlE *I
MXRMI, FL 351712
BENEF I C XQRY I METROPOLITRM AREn RDVIBORY COMMITTEE ON RNTI-POVERTY OF
140 UEST 1STH STREET BRN DIEBO COUNTY, INC.
NE~TIONEU. CITY, ca stsse
THE RBOVE CREDIT 16 WENDED R6 FOLLOWBI - FIRST PRRWRFIPH NOU TO RERD:
UE HEREBY RUTHORIZE BENEFICIARY TO DRAY OyC NRTICUIISBWX OF FLORIDR, N. A,, 80 6.U. 6TH STREET* 23RD FLWR, MIAMI, FL 33138, CIT U16HT9 FOR THE QCCOWT OF APPLICANT, CIN CIGOREQATE OWN1 ECUQL TO UP TU
NINE HUNDRED SEVENTY FIVE THOUSRND EIGHT HUNDRED THIRTY THREE DOLLRRS (U. 6,1975,833. Be), CIVQILCIBLE WON PRESENTRTION, AT OUR
BY URITTEN NOTIFICRTIDN BY BENEFICIARY* PURPORTEDLY BIGNED BY A DULY CKITHOAIZED OFFICER THEREOF CERTIFYINQt (L) "THRT THERE EXIST9 a WRITTEN, EXECUTED FIND DELIVERED ROREEhENT BETWEEN BENEFICIQRY, OR
ITS 8UCCEBBOR WD LENNAR CGRPORRTION, OR 118 SUCCE660R ("PRRTY 8") 1 AND lii) TMT PARTY B 16 IN DEFAULT OF ITB OBLIBRTI3N8 UNDER THE WREEENT, THRT DEFRULT I8 COHTINUXNQ CIHD FIVE (5) OR MORE DRY6
WVE ELRDBED OINCE PBRTY I UQS 6IVEN URITTEN NOTICE OF TWT DEFAULT
THIB LETTER UF CREDIT, HOT TO EXCEED NINE HUNDRED BEVENTY FIVE
THRT THE EXFICT CIMOUNT TO BE DRWN UNDER THIS LETTER OF ChEDIT X9 THE WOWT RUTHORIZED PURBURNT TO WE WREEMENT."
f2MENDMENT NO. 01
RLL OTHER TEW8 BHD CONDITXONS OF THE CREDIT RERRiN L*CHEINBED.
CIDDREGS RBOM, OF BENEFICIARY'B DWFT RT RIOKI* TO BE 4CCOMPRNIED
BY IENEFICIRRY1 QND (111) OF THE EXRCT nMoum TO BE DR~UN UNDER
THDUEWD EIOXT HUNDRED THIRTY THREE DOLLRRS t975,133, et10 I WD (iv)
THIS RDVSCE OF WENDMENT IS TO BE WNSIDERED a DFIRT OF THE ORlQINCIL CREDIT RND tUJ8T DE ClTTRCHED THERETO.
NRTIONSBRNK OF FLORIDR, N. A.
Karmn Chrfet LAn, Vies-Prmsldrnt
---. --.-- .-.-- JWBmD -- .--. -- -.. .. .
rrpmiruiLTlii- ---
66
rn la Ow F! mO1-VM e
PazbIT "E"
IRREVOCRBLE BTEIMIIY L~TPR ff CRLDXT NU~BERI BM4zlt9-89S
PUCE EWD DRTE OF IBSUE
WOUM I
HIMI, flORID0q ON MUBT 7, 1993
Up TO NINE HUNDRED PEVEHTY FIVE TWWcIND EIWT HUNDRED THIRTY THREE U. 8.00tLRR6 tV6*973,833,0@)
LENNAR CORPORQTION
788 N.W. 187Tn CIVENUE blfW1, n 331ff:
RpPL f cam J
PENEFICIARYI METROPOLITQN MER SIDVIBORY CDMMITTEE ON QNTI-POMRTY OF
BAN DIEW COUNTY, INC. 140 WEST 16TH STREET NnTIOWL CITY, m 91930
UE HEREBV CIUTHORIZE BENE~ICIRRY TO DRRW aN NRTIONSBQNH OF PLORIDQ,
Nene, 40 8.U. 8TH STREET, e3RD FLOOR, ZIIRMI, FL 331381 IT SIGHT, FOR TWE FIccWNf OF RPRICRNT, c\N RBOREL1RTE RWW EOLJrV TO UP TO
MINE HUNDRED SEVENTY FIvE THDUBQND EIBHT HUNDRED THIRTY THREE DDLLARB CU. 8.0975,433.88), SIVCIXLC~BLE UPON PREEENTATION, 61 OUR
DULY WTHORIZED MFICER THEREOF CERTIFYINO: (1) 'THQT THERE EXIST8
RDDRESS RBOVE, OF BENEFlCIfiRY'S DRRFT AT 81BHT, TO 8E RCCOMPRNXED BY WRITTEN NDTIFfWTIM 8Y BENEfICIRRY, PURPDRTEDLY BIONED BY A
A YRITTEk, EXECUTED RhD DELIVERED AOREEKNT QND ESCROW INgtRWTTIONS BETWEEN BENEFICIQRY QND BRRMRLEFI CRLIFORNIA, 1NC.e a CRLIFORNIR CQRPORWION, OR ITS BUtCEBBOR ("PaRTY B")( RND (li) TMT PARTY B 16 IN DEF'RUL? DF IT8 OBLIDQTIONS 3PECIFIED.XN EITHBR PFIRRQRQPH 1 ff)
FIVE IS). OR MORE DRYS HnVE ELRPSED BlNCE PQRTY B Ua8 OIVEN URSTTW
WIOUNT TO BE DRCIWN WDER THI8 LETTER OF CREDIT, NOT TO EXCEED NINE HUNDRED BEMNTY FIVE THOUSRND ElQHT HUNDRED THIRTY THREf DOLLRRS
(973, B33. @0) I AND (iv) THAT THE EXRCT aMM)M TO BE DRCIWN UNDER TH18
GOREEHENT. )I
DRWTB UNDER THSE LETTER OF CREDIT MUST BEAR THE CLRU8E "DRRWN UNDER WTIONSBQNK OF FLORIDA, N.A. LETTER Of CREDIT NO. 8M-BgB29-
69S, OQTED FIU6UST 7, 193S." DRWTS UNDER THIS LETTER OF CR€DXT, WCOmPRNIED BY THE ABOVE-DESCRIBED DOCUMENT, MU81 BE PREBENTED NU
OR PQRRQRClPH 4(aj OF THE RQREEMEHTl THRT DEFRULT IS CONTINUINB RND
NOTICE OF TWT mauLT BY BENEFICIRRY~ am (iii) OF THE EXACT
LETTER OF CREDIT IS THE CIMOUNT AUTHORIZED PUASURM Ta THE
LATER THEN le180 P.M. E.S.T., ON RUOUST 7, 1996.
THIS LETTER OF CREDIT WILL BE TWNOFERRED IN FULL BY THE ISSUINQ FRNK PROVIDED THRt YOU DELIVER TO lK OUR WRITTEN PULL TRRNBFER FORM (RTTRCHED) THE QRIOINQL LETTER OF CREDIT TOGETHER kITH F\NY RMENOMENTB MU81 RETURNED TU UB UlTH THE COHPLETED TRRNSFER FORM AND
PFIYMENT OF WR WBTOMQRY CHAROES.
THI8 LETTER OF CREDIT I8 BUbJECT TO THE "UNIFORM CUBTOMS RND PRQCTSCE FOR DOCUMENTRRY CREDIT8 (1993 REVISION) INTERNRTIONQL
CHQM8ER OF COMMERCE PUFLICQTION NO. S0. "
UE HEREBY UNOERTCIKE TO BENEFICIARY THQT DREIFTB DRRUN RND NEGOTXRTED
67RXCTLY IN CQMPL!PNCE WITH THE TERM8 of THI8 LETTER of CREDIT
BHAU FEET WITH DUE HONOR UPON PRE8EHTOTIOY TO US. - CJ HATION98FWX aF FLDRIDR, NsAi Mlcnala Broucrard-Lccmdon, Vic~Prrna!deiit A& Aulhbrid &@wlun hA mm I).---.- --. .-I
c -m e tor NatiorsrBlnk * Dab:
Rofonnmr .
The undmuigmd Bamfi.dary of the above referencad letter d-t bby unvocahly tramfern to:
(ha~ng Bank2 btmr d- Nab) (AuTimq Baakc hmr &Dl& ?)yPb.I)
WLPY and oorapkm rdCnrc Mthc Wa&w) kwh
(H-HAddmn ol5hnrkdng Bank, Pkaom SKU bl- N~eiolvElrnt rW d.et1 -
dl rights uftho undersigned Bonrdciuy in mc?a Documeatuj) ha?, ta draw up to but not exosedi oum of s . Tho Traneferte rhdl bvr tha 4010 rights &a Benafic
theredl pmvided that this transfer oxpire0 on
In accordance with UCP 500 tubkticle 48 (d), the undersigned Bonekhuy waiver the right to reA
&w the Tranaferrinp Bank to advire amendmrnta mads under the oxjgind Documratuy Credit 1
Trmafene. Therefme, the Trmsfarrso rhd haw tho de rightr 80 Bonidafug inaluding Pole i ralatlng to any amrndmrnta to the Documentarg adit whothu increatet ~r extauionr or I
amsndmcnta and whether now existing or hereaftar made. u1 amcadmento are to be oddrd direc
the Traaofwee.
X pcu agree to thaee tnetruationa, p~saw aivire the ran dm thb urmr asid cbnditiom a tranaierrrd hdit and theas inatructionr.
Pleaie debit our account numbor Kith Natiorii (or tnclorsd it^ CL cashisrs check) for ,S; ropnsa
your tranrfer fee drmlatsd at the mater 2 r/4% of thr amount di the trsarfer or $150.00, p1uo
epecial handling fee of S60.00,
We do m&ec the original letter of adit and dl crighal ameadmtntr for your endor~emrnt.
Yours truly1 Authentication dBeaefidary Signatu
(rmouar)
70~plr~dru dfhc (Mtbr but altttu thu h rqtfry dr~l drbr Cmd
-
Print or Type Name of Benefiauy
*
Bendciaq, Authorized Signttun
.. .-- .--.-- -- c-.- - _____--- _- .-- . - . -... -.
EXHIBIT D
c 0 a
---..., ,--;;* I? (u&, qy<--
'8;'. =-& &/ '++ z ',,WY
&?UHfg #f $lUt $h$d
GREGORY J. SMITH
RECORD ER/COU NTY CLERK
1600 PACIFIC HWY, RM 260
P 0 BOX 1750 SAN DIEGO, CA 921 12-4147
(61 9) 237-0502 - FAX (61 9) 557-41 55
(. s*L*j ,&$I,
Gracelia A. B. Smith
Chief Deputy
William N. Pierce
Chief Deputy
CITY OF CARLSBAC Date: September 25, l! OFFICE OF THE, CITY CLERK
1200 CARLSBAD VILLAGE DR
CARLSBAD CA 92008-1989
We are returning your document(s! unrecorded for- the following
reason(s) :
The paper clipped pages are not legible for microfilming. Ple; submit better copy for recordt5ticn.
Please return this correspondence with your document(s) .
Thank you for your cooperation in resolving this matter.
If you have any questions, please contact the Recorder's Custor
Service Desk at (619) 237-0502 and then press 10.
Very truly yours,
GREGORY J. SMITH Recorder/County Clerk
- puty Recorder
Enclosure
JC
1/8/96 The Affordable Housing Mitigation Agreement is being returned to you. The illegible pages have been replac with legible pages.
Thank you for bringing this matter to our attention.
City Clerk's Office City of Carlsbad
1200 Carlsbad Village Dri Carlsbad, CA 92008
0 0
September 19, 1995
Gregory J. Smith
San Diego County Recorder
Post Office Box 1750 San Diego, CA 92112-4147
Enclosed for recordation is the following described document:
Affordable Housing Mitigation Agreement with Bramalea California Inc.
Also enclosed are instructions on how the City is to be billed foi
the recordation fees incurred.
Thank you for your assistance in this matter.
CMC
erk
KRK: ijp
Enclosures
1200 Carlsbad Village Drive - Carlsbad, California 92008-1 989 - (61 9) 434-280