HomeMy WebLinkAboutCT 97-04; Heritage-Cliffs LLC; 1999-0698032; Affordable Housing Agreement/Release’ fc&.,$f&..,:,..i, (‘; !“.:il::[ Gi. f y, /l,iu,i:.i,;~,:;j L ‘y ,-L ‘. f&bji:l’d,:iCii.tl &“dE-Q!JT ~~~~~~~~~~~ DIIC : 1999-0698032
. . RECORDING REQUESTED BY: QCT 15s 1999 4:35 PM
** 6$33 OFFICIAL ftEaJltDs City of Carlsbad SAN DIEGO CWY RECfRDER’S OFFICE
- - WHEN RECORDED MAIL TO: GREG0w ikEP awTY RENRDER : 43.00
City of Carlsbad
City Clerk’s Of&e
Attn.: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
(Space above for Recorder ‘s Use)
AFFORDABLE ROUSING AGREEMENT
IMPOSING RESTRICTIONS ON REAL PROPERTY
This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS
ON REAL PROPERTY (“Agreement”), entered into this %“;W day of ‘$*b. , 1998, by and
between the CITY OF CARLSBAD, a Municipal Corporation (hereinafter referred to as the
“City”), and (hereinafter referred to as the “Developer”), 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 (hereinafter referred to as the “subject property”) described
in Exhibit “A,” which is attached hereto and incorporated herein by this reference.
B. Developer wishes to construct 35 residential housing units which includes
30 units for sale at prevailing market prices (“Market Units”) and 5 residential housing units for
sale at affordable prices (“Affordable Units”) on the subject property. In addition, the developer
shall pay to the City .25 of the In-Lieu Housing Fee. The City has approved Carlsbad Tentative
Tract Map Number CT 97-04, and Site Development Plan Number SDP 97-03 for the proposed
development. The City issued this approval subject to certain Conditions of Approval, including
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’ \ a condition requiring the Developer to enter into an Affordable Housing Agreement in which
Developer agrees to provide 5 dwelling units affordable to lower-income households.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Satisfaction of Affordable HousinP Obligation and Conditions of Approval. In
order to satisfy the Conditions of Approval and requirements of the City’s Inclusionary Housing
Ordinance, Carlsbad Municipal Code Chapter 21.85, Developer shall provide a total of five (5)
Affordable Units which shall be initially restricted and affordable to lower income households.
These five (5) parcels are identified as lot numbers 17,25, 29, 34 and 35 of Carlsbad Tentative
Map No. CT97-04 and more fully described in Attachment A. In addition, the developer shall
pay to the City .25 of the In-Lieu Housing Fee. This Agreement is an Affordable Housing
Agreement pursuant to Section 21.85.030(b)(5) of Chapter 21.85 of the Carlsbad Municipal
Code. Developer shall submit this Agreement to City and Agreement shall be exeeuted prior to
the approval of the final map for the subject property.
2. Terms Governins! Provision of Affordable Units.
2.1. Obligation to Provide Affordable Units.
Developer shall provide Affordable Units in relation to Market Units (“Market Units”) on the
Subject Property. The Developer shall provide five (5) affordable units consisting of four
bedrooms, two baths, approximately 1,350 square feet in size. The maximum allowable income
level of buyers of the affordable units shall be restricted to a maximum of 80% of the area
median income.
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2.2 Schedule for Developing Affordable Units.
2.2.1 Developer shall begin construction of the Affordable Units as
shown on the approved Phasing Plan which is attached as Exhibit B.
2.2.2 Developer shall complete construction of all five (5) Affordable
Units and make them available for purchase within eighteen (18) months of the commencement
date of construction of the Affordable Units.
2.2.3 The Affordable Units shall be developed in accordance with the
approved Site Development Plan SDP v-a..
2.3 Terms for Sale of Affordable Units.
2.3.1 The Schedule of Maximum Eligible Buyer Incomes and Affordable
Subsidized Purchase Prices (the “Schedule”) attached hereto and incorporated herein as Exhibit
C sets forth the City’s requirements for maximum household income of buyers of the
Affordable Units (“Eligible Buyers”) and the methodology for calculation of the subsidized
purchase prices of Affordable Units which will be affordable to each of the Eligible Buyers (the
“Affordable Purchase Prices”). The Affordable Purchase Prices will vary depending on the
actual household income of the Eligible Buyer. The Schedule also includes initial estimates of
Eligible Buyer actual incomes and the corresponding Affordable Purchase Prices. The Final
Schedule shall be established prior to sale based on the San Diego County Area Median Income
and the cost factors applicable at the time. The Final Schedule shall be submitted by the
Developer and approved by the City’s Housing and Redevelopment Director prior to the
marketing of the Affordable Units.
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2.4 Resale of Affordable Units. ./’ /’
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2.4.1 The affordable units must either remain affordable for their useful life or the .
developer shall allow for the transfer of the initial financial subsidy to another qualified
household or the City of Carlsbad if there is a resale at market price.
2.5 In-Lieu Fee Housing Fee.
2.5.1 Prior to the issuance of a building permit for Village L-l, the developer
shall pay to the City .25 of the In-Lieu Housing Fee to satisfy the fractional requirement
3. City Approval of Documents.
3.1. The following documents, in form and substance acceptable to the City,
shall be used in connection with the sale of Affordable Units. Documents to be prepared by the
Developer shall be submitted to the Housing and Redevelopment Director for review and
approval no later than the start of construction of the Affordable Units.
3.1.1. A marketing plan establishing the process for seeking, selecting and
determining the eligibility of buyers of the Affordable Units shall be prepared by the Developer.
3.1.2. An educational program informing Affordable Unit purchasers of the
obligations of home ownership and the specific features of this program shall be prepared by the
Developer.
3.1.3. Purchase and Sale Agreements for sale of the Affordable Units shall be
prepared by the Developer.
3.1.4 Loan documents, including, without limitation, loan agreement,
promissory note, and deed of trust.
*. 3.1.5 Any of the documents identified in this section 3.1 may be revised by
Developer from time to time with the prior written approval of the Housing and Redevelopment
Director.
4. Reporting and Compliance Monitoring. A report verifying compliance
with the requirements of this Agreement covering the initial sales of the Affordable Units shall
be provided to the City by the Developer and certified by a third party such as a Certified
Public Accountant approved by the Housing and Redevelopment Director. Developer shall
provide the City with other reports as reasonably required by the City to verify compliance
with this Agreement.
5. 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) will constitute a failure to
satisfy the Conditions of Approval with respect to the Subject Property and the requirements of
Chapter 21.85 of the Carlsbad Municipal Code and void the approval of the Final Map and Site
Development Plan; and the City may exercise any and all remedies available to it with respect
to the Developer’s failure to satisfy the Conditions of Approval, including but not limited to,
the withholding of building permits for the Market Units within the Subject Property.
6. 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.
* . . 67 8
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7. Burden to Run with Property. The covenants and conditions herein
contained shall apply to and bind the heirs, executors, administrators, successors, transferees, and
assignees of all the parties having or acquiring any right, title or interest in or to any part of
Subject Property and shall run with and burden the Subject Property until terminated in
accordance with the provisions hereof. Prior to the issuance of building permits, 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 the Subject Property. Notwithstanding
anything to the contrary set forth in this Agreement, individual purchasers of units pursuant to an
approved public report in compliance with the California Subdivided Lands Act, and mortgage
lenders holding deeds of trust on such individual units after sale to such purchasers, shall not be
subject to the terms of this Agreement; and the terms of this Agreement shall be of no further
force or effect with respect to such completed unit on the date of the recordation of a deed to the
individual purchaser.
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 dl damage (including expense) 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.
Developer shall obtain, at its expense, the following insurance policies for
development of the Subject Property naming Indemnitees as additional named insureds with
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aggregate limits of not less than five million dollars ($5,000,000) purchased by Developer 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-:V, such insurance to be evidenced
by an endorsement which so provides and delivered to the City Clerk prior to the issuance of
any building permit for the Subject Property.
9. 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:
CITY OF CARLSBAD
Housing and Redevelopment Department
Attn: Housing and Redevelopment Director
2965 Roosevelt Street, Suite B
Carlsbad, California 92008-2389
TO THE DEVELOPER:
Heritage-Cliffs, LLC
2420 Grand Ave., Suite G2
Vista, CA 92083
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.
10. 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.
11. Duration of Agreement. With the exception of the Hold Harmless
provisions contained in Paragraph Number 8 which shall survive this Agreement, his
Agreement shall terminate and become null and void upon the earlier of: (a) the closing of the
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‘. sale of the last of the Affordable Units to an individual purchaser pursuant to a sale on an
approved public report in compliance with the California Subdivided Lands Act, or (b) upon the
granting of a written release by the Community Development Director. This Agreement, and
any section, subsection, or covenant contained herein, may be amended only upon the written
consent of Developer and the Community Development Director.
12 Recording of Agreement. The parties hereto shall cause this Agreement to
be recorded against the Subject Property in the offkial Records of the County of San Diego.
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13. Severabilitv. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
DEVELOPER
Signature H &%-6E CL ;FPa UC
CITY
CITY OF CARISBAD,
A Municipal Corporatjan,
By:
APPROVED AS TO FORM:
City A%omey
STATE OF CALIFORNIA )
COLI OF SAN DIEGO ; !s.
on o&&w a- ,1999, before me, Dawn Partin, the undersigned Notary
Public, personally appeared PHILLIP M. JONES----------------
(xx) personally known to me
or ( ) 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 author&d capacity (ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity on behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
Notary pucblic
‘. * STATE OF CALIFORNIA >
> SS.
COUNTY OF >
On ,199-, before me, 7 personally
appeared and 3 personally known to me (or 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
signat-ure(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA 1
COUNTY OF %n Diao 1 SS.
1
On &$r.~~~,r’ aL(,1993, before me, ?%A& G e &,f&A , personally
appeared k, \\ ;r Jr\. ‘Jooi\es and 7 \ personally known to me (or proved to me on the basis of satisfactory evidence) to be the
personfs3 whose narneMis&6subscribed to the within instrument and acknowledged to me that
he/&&hey executed the same in hiske&k& authorized capacity@es+, and that by his/k%thek
signatur@ on the instrument the person&& or the entity upon behalf of which the person@”
acted, executed the instrument.
WITNESS my hand and
Notary Public in and for said State
(SEAL)
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Attachment A
(Insert Property Legal Description)
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EXHIBIT “A”
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1A:
AN UNDIVIDED 3/1gTH FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE
COMMON AREA OF MODULE A AS SHOWN ON THE CONDOMINIUM PLAN, PHASE 1,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON
AUGUST 11, 1999 AS FILE NO. 1999-0556005 OF OFFICIAL RECORDS (“CONDOMINIUM
PLAN”), WHICH IS LOCATED ON LOT 1 OF CITY OF CARLSBAD TRACT 97-04, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 13714, RECORDED ON DECEMBER 30,1998.
EXCEPTING AND RESERVING THEREFROM NON-EXCLUSIVE EASEMENTS FOR ACCESS,
INGRESS, EGRESS, ENCROACHMENT, MAINTENANCE, REPAIR, DRAINAGE, SUPPORT, AND
FOR OTHER PURPOSES, ALL AS DESCRIBED IN THE CONDOMINIUM PLAN AND
DECLARATION.
PARCEL 2A:
RESIDENTIAL UN-IT NOS. 25,29 AND 35, AS SHOWN AND DEFINED ON THE CONDOMINIUM
PLAN.
EXCEPTING AND RESERVING THEREFROM A YARD USE AREA EASEMENT FOR THE
BENEFIT OF THE ADJACENT RESIDENTIAL UNIT AS DESCRIBED ON THE CONDOMINIUM
PLAN AND IN THE DECLARATION;
FURTHER EXCEPTING AND RESERVING THEREFROM A FRONT YARD MAINTENANCE
AREA EASEMENT FOR THE BENEFIT OF THE ASSOCIATION AS DESCRIBED ON THE
CONDOMINIUM PLAN AND IN THE DECLARATION.
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PARCEL 3A:
A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR INGRESS,
EGRESS, USE AND ENJOYMENT, OVER, IN, TO AND THROUGHOUT THE ASSOCIATION
PROPERTY SHOWN ON THE CONDOMINIUM PLAN DESCRIBED IN PARCEL “1A” ABOVE
AND OVER, IN, TO AND THROUGHOUT, FUTURE PHASES OF THE PROJECT DESCRIBED IN
THE DECLARATION WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT
DESCRIBED ABOVE. THIS EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF THE
FUTURE PHASES, RESPECTIVELY, UPON (i) RECORDATION OF A DECLARATION OF
ANNEXATION, DECLARING SUCH PHASES, RESPECTIVELY, TO BE SUBJECT TO THE
DECLARATION, AND (ii) CONVEYANCE OF THE FIRST CONDOMINIUM COVERED BY THE
DECLARATION OF ANNEXATION, ALL AS MORE FULLY SET FORTH IN THE
DECLARATION. THE ASSOCIATION PROPERTY REFERRED TO HEREIN AS TO EACH OF
SUCH PHASES SHALL BE AS DESCRIBED ON THE CONDOMINIUM PLAN COVERING EACH
SUCH PHASE RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, CALIFORNIA, EXCEPTING THEREFROM THE COMMON AREA AND RESIDENTIAL
UNITS SITUATED THEREON.
PARCEL 1B:
AN UNDIVIDED 2/17TH FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE
COMMON AREA OF MODULE B AS SHOWN ON THE CONDOMINIUM PLAN, PHASE 2,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON
AUGUST 27, 1999 AS FILE NO. 1999-0594221 OF OFFICIAL RECORDS (“CONDOMINIUM
PLAN”), WHICH IS LOCATED ON LOT 1 OF CITY OF CARLSBAD TRACT 97-04, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 13714, RECORDED ON DECEMBER 30,1998.
EXCEPTING AND RESERVING THEREFROM NON-EXCLUSIVE EASEMENTS FOR ACCESS,
INGRESS, EGRESS, ENCROACHMENT, MAINTENANCE, REPAIR, DRAINAGE, SUPPORT, AND
FOR OTHER PURPOSES, ALL AS DESCRIBED IN THE CONDOMINIUM PLAN AND
DECLARATION.
PARCEL 2B:
RESIDENTIAL UNIT NOS. 17 AND 34, AS SHOWN AND DEFINED ON THE CONDOMINIUM
PLAN.
EXCEPTING AND RESERVING THEREFROM A YARD USE AREA EASEMENT FOR THE
BENEFIT OF THE ADJACENT RESIDENTIAL UNIT AS DESCRIBED ON THE CONDOMINIUM
PLAN AND IN THE DECLARATION. ‘.
FURTHER EXCEPTING AND RESERVING THEREFROM A FRONT YARD MAINTENANCE
AREA EASEMENT FOR THE BENEFIT OF THE ASSOCIATION AS DESCRIBED ON THE
CONDOMINIUM PLAN AND IN THE DECLARATION.
. 6’747
PARCEL 3B:
A NON-EXCLUSIVE EASEMENT FOR ACCESS, INGRESS, EGRESS AND USE AS PROVIDED
UNDER THE DECLARATION OVER THAT PORTION OF THE ADJACENT RESIDENTIAL UN-IT
DESIGNATED ON THE CONDOMINIUM PLAN AS A YARD USE AREA FOR THE BENEFIT OF
AND WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED
ABOVE.
PARCEL 4B:
A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR INGRESS,
EGRESS, USE AND ENJOYMENT, OVER, IN, TO AND THROUGHOUT THE ASSOCIATION
PROPERTY SHOWN ON THE CONDOMINIUM PLAN DESCRIBED IN PARCEL “1B” ABOVE
AND OVER, IN, TO AND THROUGHOUT, OTHER PHASES OF THE PROJECT DESCRIBED IN
THE DECLARATION WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT
DESCRIBED ABOVE. THIS EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF THE
OTHER PHASES, RESPECTIVELY, UPON (i) RECORDATION OF A DECLARATION OF
ANNEXATION, DECLARING SUCH PHASES, RESPECTIVELY, TO BE SUBJECT TO THE
DECLARATION, AND (ii) CONVEYANCE OF THE FIRST CONDOMINIUM COVERED BY THE
DECLARATION OF ANNEXATION, ALL AS MORE FULLY SET FORTH IN THE
DECLARATION. THE ASSOCIATION PROPERTY REFERRED TO HEREIN AS TO EACH OF
SUCH PHASES SHALL BE AS DESCRIBED ON THE CONDOMINIUM PLAN COVERING EACH
SUCH PHASE RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, CALIFORNIA, EXCEPTING THEREFROM THE COMMON AREA AND RESIDENTIAL
UN-ITS SITUATED THEREON.