HomeMy WebLinkAboutMP 150-H; Calavera Hills II LLC; 2002-0701731; Affordable Housing Agreement/ReleaseRECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn.: City Clerk
1200 Carlsbad Village Drive
FEES: 41.00 ,*
Carlsbad, California-92008
(Space above for Recorder b Use)
AFFORDABLE HOUSING AGREEMENT
IMPOSING RESTRICTIONS ON REAL PROPERTY
This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON
REAL PROPERTY ("Agreement"), entered into this a day of fi ,2002,
by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as
the "City"), and CALAVERA HILLS 11, LLC, a California limited liability company (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 "Attachment A", which is attached hereto and incorporated herein by this reference.
B. For the purposes of this Agreement, Developer currently intends to
construct a total of 706 residential units (hereinafter referred to as the "Master Development") on
the Subject Property. The City has approved the Calavera Hills Phase I1 Master Plan (MP 150-
H) (the "Master Plan") for the Master Development. The City issued the approval subject to
certain Conditions of Approval, including a condition requiring at least fifteen percent (15%) of
the units in the Master Development to be affordable housing as required by the City's
Inclusionary Housing Ordinance (CMC Chapter 21.85).
C. The Master Development will consist of nine (9) individual Planning
Areas or "Villages". Village Y shall include a minimum of 106 affordable multi-family housing
units. The remaining Villages shall include a maximum of 600 single and/or multi-family homes.
Developer intends to meet the inclusionary housing condition for the Master Development by
constructing, or causing to be constructed, a minimum of 106 apartment units in Village Y of the
Master Plan and as further described in "Attachment C."
D. This agreement shall allow for final map approval for a total of 706
housing units. Developer shall be required to process an amendment to this Agreement and
related Site Development Plan to increase the total number of housing units for final map
approval up to the maximum of 781 units approved by the City Council for the Calavera Hills
Phase I1 Master Plan.
Revised April I1.2002 1
E. Developer is required by the Conditions of Approval to enter into an
Affordable Housing Agreement as required and with the content specified by the City's
Inclusionary Housing Ordinance, Carlsbad Municipal Code ("CMC") Chapter 21.85). This
Agreement is that Affordable Housing Agreement pursuant to Section 21 35.140 of CMC
Chapter 2 1.85, and shall be executed and recorded prior to the approval of any final map,
including Master Tentative Map, for the Subject Property.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Satisfaction of Affordable Housing Obligation and Conditions of Approval. The
Conditions of Approval of Master Plan MPl50-H and Tentative Tract Map CT 00-02, and the
requirements of the City's Inclusionary Housing Ordinance (CMC Chapter 21.85) shall not be
satisfied unless 106 units of the Master Development are constructed for the purpose of
providing housing to be affordable to lower-income households (the "Affordable Units"),
according to the schedule and terms contained herein. A total of 600 market rate units and at
least 106 affordable units may be constructed with approval of this agreement. An amendment to
this agreement will be required to receive final map approval for additional housing units within
the Master Plan Area, above the subject 706 total housing units.
2. Number and Tvue of Affordable Units. As a condition to the satisfaction of
Developer's affordable housing requirements for the Master Development, Developer shall
construct, or cause to be constructed, on the Subject Property at least 106 apartment units
(hereinafter referred to as the "Affordable Multifamily Units").
3. Terms Governing Provision of Affordable Multifamily Units.
3.1 Location of Multifamily Units. Not less than 106 Affordable Multifamily
Units shall be constructed in Village Y of the Master Plan.
3.2 Size and Bedroom Count. The Affordable Multifamily Units shall include
one, two, and three bedroom units in the numbers and with the square footage indicated in
"Attachment B" to this Agreement. Not less than ten percent (10%) of all Affordable
Multifamily Units shall be three (3) bedroom units in compliance with CMC 21.85.010(A)(2).
3.3 Affordabilitv Requirements. The Affordable Units shall be available to
households with incomes not exceeding 80% of the median income for San Diego County,
adjusted for actual household size. Monthly Rents of the Affordable Units shall not exceed
1/12th of 30% of 70% of median household income for San Diego County, adjusted for assumed
household size appropriate for the unit. For purposes of this Agreement, "Rent" shall include a
utility allowance as established and adopted by the City of Carlsbad Housing Authority, as well
as all required monthly payments made by the tenant to the lessor in connection with use and
occupancy of a housing unit and land and facilities associated therewith, including any separately
charged fees, utility charges, or service charges assessed by the lessor and payable by the tenant
(but not including fees and charges resulting from any default by the tenant or damage caused by
the tenant, or fees or charges paid by the tenant to third party utilities or other providers).
Revised April I1.2002 2
Median income figures shall be those published annually by the United States Department of
Housing and Urban Development. Assumed household size figures shall be provided by the
Developer and reviewed and approved by the City of Carlsbad Housing and Redevelopment
Department. With respect to each Affordable Unit, the affordability requirements of this Section
3.3 shall continue for fifty-five (55) years from the date of issuance of a Certificate of
Occupancy by the City for such unit or another comparable unit based upon substitution
provisions pursuant to the Regulatory Agreement. The affordability requirements of this Section
3.3 shall be set forth in the Regulatory Agreement between the Developer or its successors and
the City, provided for below, which shall supersede this Agreement upon recordation of the
Regulatory Agreement.
3.4 Creation of Inclusionaw Units Not Required. Inclusionary units created
which exceed the final 15% requirement for this project may, subject to City Council approval,
be utilized by the Developer to satisfy other inclusionary housing requirements for which it is
obligated or market the units to other developers as a combined project subject to the
requirements of Carlsbad Municipal Code Section 21.85.080.
3.5 Schedule for Developing Affordable Multifamily Units. Developer shall
provide the Affordable Multifamily Units pursuant to the following schedule and as described in
Attachment C:
3.5.1 Prior to the approval of any Final Map, including Master Tentative
Map, for the Master Development: (i) this Agreement shall be duly executed and recorded; and
(ii) the developer of Village Y shall have received approval of a Site Development Plan for all of
the Affordable Multifamily Units included in Village Y
3.5.2 Developer has indicated that it will contract with Chelsea
Investment Corporation to develop and construct the Affordable Multifamily Units to be
constructed in Village Y. The City hereby approves such selection and has relied on that
representation in approving this agreement. Developer shall obtain prior approval by the City of
any other affordable housing developer and shall obtain City approval for the proposed
development agreement for these units (the "Affordable Housing Development Agreement").
3.5.3 Upon satisfying the applicable conditions stated in Sections 3.5.1
and Section 3.5.2, building permits can be released for a total of 201 market rate units and for the
106 Affordable Multifamily Units.
3.5.4 Once building permits have been released and the foundations for
the 106 affordable apartment units are complete, inspected and approved, an additional 201
building permits for 201 market rate housing units shall be released at Developer's request.
3.5.5 Once the final Certificate of Occupancy is issued for the last of the
106 Affordable Multifamily Units to be constructed (e.g., the 106'hapartment unit), the building
permits for the remaining 198 market rate housing units shall be released at Developer's request.
Revised April 11, 2002 3
4. Citv Amroval of Documents, The following documents, to be approved in
writing by the City, shall be used in connection with the rental of Affordable Units.
4.1 A marketing plan consistent with the terms of this Agreement, establishing
the process for seeking, selecting and determining the eligibility of tenants of the Affordable
Units.
4.2 Form of Rental Agreement.
4.3 A Property Management Plan.
4.4 A Form of Regulatory Agreement between the developer of the affordable
project for Village Y and City (the "Regulatory Agreement"), following a format designated by
City.
5. Comuliance Reports. Following completion of construction of any of the
Affordable Multifamily Units, a Compliance Report meeting the requirements of Section
21.85.140 of the Inclusionary Ordinance, verifying compliance of all completed Affordable
Multifamily Units with the terms of this Agreement and certified as correct by a third-party, shall
be submitted annually to the Housing and Redevelopment Director, commencing on the first
Report Date that is twelve months from the completion of construction of the Affordable
Multifamily Units. If similar reports on some or all of the Affordable Multifamily Units are
required for regulatory compliance with other financing programs, those reports may be deemed
satisfactory for the purpose of this section by the Housing and Redevelopment Director, with
respect to the portion of the Affordable Multifamily Units covered by such reports, provided that
copies are provided on an annual basis to the Housing and Redevelopment Director with a third
party certification addressed to the City.
6. Release of Subiect Propxtv From Agreement. The covenants and conditions
herein contained shall apply to and bind, during their respective periods of fee ownership,
Developer and its heirs, executors, administrators, successors, transferees, and assignees having
or acquiring any right, title or interest in or to any part of the Subject Property (but not including
non-residential areas of the Subject Property consisting of Village-H and the portion of Village-Y
designated for non-residentially related community facilities use) and shall run with and burden
such portions of the Subject Property until terminated in accordance with this Section 6 or
Section 13 hereof. Until portions of the Subject Property are released from the burdens of this
Agreement pursuant to this Section 6, the owners of fee title to the lands encumbered by this
Agreement shall expressly make the conditions and covenants contained in this Agreement a part
of any deed or other instrument conveying any interest in such property. Notwithstanding
anything to the contrary set forth in this Agreement, individual purchasers of single-family or
multi-family 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. Upon issuance of certificates of
occupancy for all of the Affordable Multifamily Units, the entire Subject Property (with the
Revised April 11,2002 4
exception of those portions of Village Y not designated for non-residentially related community
facilities use), shall be released from the burdens of this Agreement, except such release shall not
be construed to release Developer from any and all personal covenants of Developer as provided
in Section 9 herein. The burdens of this agreement shall remain in full force and effect and
recorded against Village Y (other than the portion designated for non-residentially related
community facilities use) for the 55 year duration of this agreement.
7. Default. Failure of the Developer to cure any default in the Developer's
obligations under the terms of this Agreement within ninety (90) days after the delivery of a
notice of default from the City (or where the default is of the nature which cannot be cured
within such ninety (90) day period, the failure of the Developer to commence to cure such
default within the ninety (90) day period or the Developer's failure to proceed diligently to
complete the cure of such a default within a reasonable time period but in no event not greater
than 180 days) 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 CMC 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 and Chapter 21.85 of the CMC, including but not limited to, the
withholding of further building permits for the market rate units within the Master Development
until such cure is completed.
8. Amointment of Other Agencies. At its sole discretion, the 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.
9. Hold Harmless. Developer and its heirs, executors, administrators, successors,
transferees, and assignees having or acquiring any right, title or interest in or to any part of
Village Y (other than the portions designated for non-residentially related community facilities
use) will indemnify and hold harmless (without limit as to amount) City and its elected officials,
officers, employees and agents in their official capacity (hereinafter collectively referred to as
"Indemnitees"), and any of them, from and against all loss, all risk of loss and all damage
(including 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 performance or non-performance under this Agreement, and shall protect
and defend Indemnitees, and any of them with respect thereto. The provisions of this section
shall survive expiration or other termination of this Agreement or any release of part or all of the
Property from the burdens of this Agreement, and the provisions of this Section 9 shall remain in
full force and effect.
10. Insurance Reauirements. Until the issuance of certificates of occupancy for all of
the Affordable Multifamily Units, Developer and its successors and assigns acquiring title to
Village Y (other than the portions designated for non-residentially related community facilities
use), during their respective periods of fee ownership of Village Y, shall obtain, at their expense,
commercial general liability insurance for development of the Affordable Multifamily Units in
Village Y, naming Indemnitees as additional named insureds with aggregate limits of not less
than five million dollars ($5,000,000), for bodily injury and death and property damage,
Revised April 1 I, 2002 5
including coverages for contractual liability and products and completed operations, purchased
by Developer or its successors or assigns from an insurance company duly licensed to engage in
the business of issuing such insurance in the State, with a current Best’s Key Rating of not less
than A-: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 Village Y.
11. 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 addresses 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
Calavera Hills 11, LLC
McMillin Companies, LLC
Managing Member
Attn: Brian Milich
2727 Hoover Avenue
National City, Ca. 91950
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.
12. Intemated 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.
13. Duration of Agreement. This Agreement shall remain in effect for 55 years
following the date certificates of occupancy have been issued for all Affordable Units. This
Agreement, and any section, subsection, or covenant contained herein, may be amended only
upon the written consent of Developer and the Community Development Director.
14. Recording of Agreement. The parties hereto shall cause this Agreement to be
recorded against Subject Property (but not including non-residential areas of the Subject Property
consisting of Village H and the portion of Village Y designated for non-residentially related
community facilities use) in the official Records of the County of San Diego.
Revised April 1 I, 2002 6
15. 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 Atten.
DEVELOPER
CALAVERA HILLS 11, LLC,
a California limited liability company
By: McMillin Companies, LLC,
a Delaware limited liabilitv comDanv
Its Manager
By:
Title: si//?
CITY
CITY OF CARLSBAD,
A Municipal Corporation
By:
Community Development Director
ATTEST:
By:
v. City Clerk V
If required by City, proper notarial acknowledgment of execution by Developer must be
attached. If a Comoration, Agreement must be signed by one corporate officer from each of the
following two groups.
*Group A.
Chairman,
President, or
Vice-president
**Group B.
Secretary,
Assistant Skcretary,
CFO or Assistant Treasurer
Otherwise, the corporation attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer@) signing to bind the corporation.
APPROVED AS TO FORM
By:
Revised April 11,2002 I
STATE OF CALIFORNIA )
OnN&2&2002, before me, JaiAiA I N; I kpersonally appearedhald R.f&c. and, Brian M; ,;ck
personally own to me (or prove o me on the basis of satisfactory evidence) to’be the
person(s) whose name(s) idare subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in hishedtheir authorized capacity(ies), and that by hishdtheir
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.
JLLul”
Public in and for said State
(SEAL)
Revised April 11,2002 8
Revised April I I, ZOO2
ATTACHMENT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
9
EX H I BIT "A"
LEGAL DESCRIPTION
(AFFORDABLE HOUSING SITE CALAVERA HILLS VILLAGE "Y")
BEING A PORTION OF LOT "D" OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID
SAN DIEGO COUNTY ON NOVEMBER 16,1896, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST BOUNDARY CORNER OF CARLSBAD TRACT NO. 81-
47, THE CAPE AT CALAVERA HILLS, UNIT NO. 1, MAP NO. 10565, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY ON JANUARY 17,1983;
THENCE ALONG THE EASTERLY BOUNDARY LINE OF SAID MAP NO. 10565, NORTH
24"12'02" WEST (NORTH 24"13'40 WEST PER MAP 10565), 59.35 FEET TO AN
INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY LINE OF COLLEGE BOULEVARD
AS SHOWN ON PROPOSED FINAL MAP FOR CARLSBAD TRACT NO. 00-02, CALAVERA
HILLS, PHASE II (CITY OF CARLSBAD TENTATIVE MAP C.T. 00-02); THENCE LEAVING
SAID EASTERLY BOUNDARY LINE, ALONG SAID WESTERLY RIGHT-OF-WAY LINE,
SOUTH 36"27'08" EAST, 533.37 FEET; THENCE LEAVING SAID WESTERLY RIGHT-OF-
WAY LINE, NORTH 81"27'08 WEST, 20.20 FEET TO THE BEGINNING OF A TANGENT
CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 10.00 FEET; THENCE WESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45"OO'OO A
DISTANCE OF 7.85 FEET, THENCE NORTH 53"32"52" 97.63 FEET TO THE BEGINNING OF
A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 75.50 FEET;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 44"4818" A DISTANCE OF 59.04 FEET; THENCE SOUTH 08"44'33" WEST,
168.90 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY
HAVING A RADIUS OF 10.00 FEET; THENCE SOUTHERLY, SOUTHEASTERLY AND
SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
98"35'30 A DISTANCE OF 17.21 FEET TO THE BEGINNING OF A REVERSE CURVE
CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 136.50 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH OO"O9'03" EAST; THENCE EASTERLY ALONG THE ARC OF
SAID CURVE THROUGH A CENTRAL ANGLE OF 26O54'11" A DISTANCE OF 64.09 FEET;
PAGE 1 OF 2
:kh M:\1941\041 Calavera Village nLegal Descripl10ns\AO3 AFFORDABLE SITE.doc WO 1941-41 7/25/02
THENCE NORTH 51"37'15 EAST 249.44 FEET TO A POINT ON THE WESTERLY RIGHT-
OF-WAY LINE OF COLLEGE BOULEVARD AS SHOWN ON SAID PROPOSED FINAL MAP
FOR CARLSBAD TRACT NO. 00-02, CALAVERA HILLS, PHASE II (CITY OF CARLSBAD
TENTATIVE MAP C.T. 00-02), SAID POINT BEING THE BEGINNING OF A NON-TANGENT
CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 40.00 FEET, A RADIAL LINE
TO SAID POINT BEARS NORTH 41"35'00 EAST; THENCE SOUTHEASTERLY ALONG SAID
RIGHT-OF-WAY LINE AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
1 l"57'52 A DISTANCE OF 8.35 FEET; THENCE SOUTH 36"27'08" EAST, 244.09 FEET;
THENCE LEAVING SAID RIGHT-OF-WAY LINE, SOUTH 29"1625" WEST, 834.45 FEET TO
THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A
RADIUS OF 48.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 03"58'23" WEST ;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 48"53'51" A DISTANCE OF 40.96 FEET; THENCE NORTH 25"27'01" WEST,
109.17 FEET; THENCE NORTH 18"01'22" WEST, 66.58 FEET; THENCE NORTH 69"09'44"
WEST, 45.54 FEET TO THE MOST SOUTHEASTERLY BOUNDARY CORNER OF
CARLSBAD TRACT NO. 81-47, THE CAPE AT CALAVERA HILLS, UNIT NO. 2, MAP NO.
10606, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO
COUNTY ON FEBRUARY 28, 1983; THENCE NORTH 08"44'33" EAST (NORTH 08"46'21"
EAST PER MAP NO. 10606), 979.78 FEET; THENCE NORTH 24"12'02" WEST (NORTH
24"13'40" WEST PER MAP NO. 10606). 353.36 FEET TO THE POINT OF BEGINNING.
THE HEREINABOVE DESCRIBED PARCEL OF LAND CONTAINS 7.053 ACRES MORE OR
LESS.
DAVID W. AMBLER L.S. 7322
HUNSAKER &ASSOCIATES SAN DIEGO, INC.
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PAGE 2 OF 2
ATTACHMENT B
LOCATION, SIZE, AND BEDROOM COUNT
OF AFFORDABLE UNITS
(This attachment will be added once the final SDP is approved
for the project.)
I One Bedroom
I Three Bedroom
Number of Units Square Footage
64 I 878
32 1027
Revised Apd I I, 2002 10
r
ATTACHMENT C
BUILDING PERMT PHASING PLAN
Action Required/
Phasing
Receive Approval of SDP for the
affordable housing project, and
execute and record the
Affordable Housing Agreement
approved by City Council.
All building permits issued and
foundations complete, inspected
and approved for all 106
affordable apartment units.
Final Certificate of Occupancy
issued for all 106 affordable
TOTAL
# of Building
Permits & Type
Released
20 1
market rate
building permits.
106
affordable
apartment units
20 1
market rate
building permits
r I YO of Total
Permits for
Project
29%
and
15%
28%
market 198 rate t- 28%
Comments
Final maps allowed for a
total 706 units. A total of
307-building permits could
be issued at this point in
time; 43% of total permits.
At this point, 402 market
rate units (68% of the
market rate units) could be
under, or begin
construction. The market
rate units will be single
family or multi-family units.
At this point, all 600 market
rate units could be under, or
~~ Allows for a total of 600
market rate and 106
affordable units.
Revised April 1 I, 2002 11