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HomeMy WebLinkAboutCT 97-04; Heritage-Cliffs LLC; 1999-0713792; Affordable Housing Agreement/Release\ I -. J?+ASE ;~~;;~fii;s' JRMATION RECORDING REQUESTED BY: DOC ‘R 19994713792 FZ$‘ORDEl? yFQTl=lW? OF FIRST &&IERICAM TITLR z OCT 25s 1999 3:52 PM ,, SUE?;VI’STON WIAPPlNG DEPARTMENT AND.WHEN RECORDED I4AIL TO: OFFICM liEaDS 6’732 MN DIEGD OoulTy RECMER’S OfiCE Citjl of Carlsbad City Clerk’s Office Attn.: City Clerk 1200 Carlsbad Village Drive Carlsbad, California 92008 AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY THIS DOCUMENT IS BEING RE-RECORDED TO CORRECT THE LEGAL DESCRIPTION - ' , b THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) 6#4 RI?- FnPkr YD')C ’ &&)q;;3i.y :‘: ,-~:.jy- c)i’ [-i,?, i“,i~,,~~*i.L*- ‘.- I. &rU&:;!‘L’i:::i:.;;.+! $,/aI.E-o[Jj- ~~~~~~~~~~,~~ . ‘-’ DOE :t 19994698032 . q SC RECORDING REQUESTED BY: OCT 15, 1999 4:35 Pfl 6733 ofnc1ElL REm City of Carlsbad &$I DIEM MuNpl RE!BNR’S @WE - - WHEN RECORDED MAIL TO: GaGoRv kEPg lxluNTY RECORDER : 43.00 City of Carlsbad City Clerk’s Offlice Attn.: City Clerk 1200 Carlsbad Village Drive Carlsbad, California 92008 (Space above for Recorder ‘s Use) AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY (“Agreement”), entered into this gsW day of $eb. , 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 :- - * 6634 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 Housing Oblipation 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 executed prior to the approval of the final map for the subject property. 2. Terms Governing 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. 6735 - . 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&3. 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. ,/” 2.4 Resale of Affordable Units. :/” ,_ ,’ ./ 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. Citv Apuroval 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 .I, 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. 67:- I. , A /’ 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 2 1.85 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 Apencies. 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. ‘. 6:- f3 7. Burden to Run with Proper&. 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 offZtls, officers, employees and agents in their official capacity (hereinafter collectively referred to as %rdemnitees”), and any of them, from and against all loss, all risk of Ioss and all 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 6731- : i” 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 Anreement. 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 6 4 7 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 official Records of the County of San Diego. ****** . . 13. 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. 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 utr**C c~iF+z Lee CITY CITY OF CARLSBAD, A Municipal Corporat&q By: Community Developma Director APPROVED AS TO FORM: 674:- STATE OF CALIFOFWIA ) 1 ss. COLW OF SAN DIEGO ) on T)&obeK- a-s , 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 authorized 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. WlTNESS my hand and official seal. A ‘. :’ ‘. . STATE OF CALIFORNIA > 1 ss. COUNTY OF 1 On ,199-, before me, , personally appeared and 7 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 signature(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 (SEAL) STATE OF CALIFORNIA 1 COUNTY OF %n biao ) ss. 1 On %&c,< 2.q ,199s, before me, w 6 l &6fi , personally appeared Qk,\Lr WI. 50~5 and 2 personally known to’ me (or proved to me on the basis of satisfactory evidence) to be the personfs3 whose name_Celis&6subscribed to the within instrument and acknowledged to me that he/M executed the same in his/h&h&r authorized capacity@e+, and that by hiske&aek 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) 6744 - Attachment A (Insert Property Legal Description) 674 5 - EXFIIBIT “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 3/18TH FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA OF MODULE A AS SHOWN ON THE CONDOMINTUM 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 UNIT 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 DESCRLBED ON THE CONDOMINIUM PLAN AND lN THE DECLARATION. FURTHER EXCEPTING AND RESERVTNG THEREFROM A FRONT YARD MAINTENANCE AREA EASEMENT FOR THE BENEFIT OF THE ASSOCIATION AS DESCRIBED ON THE CONDOMINIUM PLAN AND IN THE DECLARATION. 6746 - PARCEL 3A: I 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. 137 14, 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. 6741 PARCEL 3B: . A NON-EXCLUSIVE EASEMENT FOR ACCESS, INGRESS, EGRESS AND USE AS PROVIDED UNDER THE DECLARATION OVER THAT PORTION OF THE ADJACENT RESIDENTIAL UNIT 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 UNITS SITUATED THEREON.