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HomeMy WebLinkAboutZC 00-11; Carlsbad Apts LP; 2004-0842034; Affordable Housing Agreement/ReleaseI. f WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Ofice Attn.: City Clerk 1200 Carlsbad Village Drive Carlsbad, California 92008 DOC # 2 0 0 4-0 8 42 0 3 4 I111111li Ill 11111 111ll IIIII 11111 11111 Ill11 IIIII Ill11 Ill11 11111 1111 1111 SEP 02,2004 459 PM U FFlClkL HE CU LD 5 SA4 DIE60 COUNT C HECORDER'S OFFICE GREGUR'i J SMITH CIIUFIT'I HECUHDER FEES 4u uu PAGES 12 I lllll11111111111111111111111111111111111111111111111111111 Ill11 11111 111 Ill1 (Space above for Recorder's Use) AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY ("Agreement1'), entered into this 1 L+hday of A c) Gu 3 7- ,2004, by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as the "City"), and Carlsbad Apts. L.P., a Nevada Limited Partnership (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 one hundred forty-three (143) residential apartment units (hereinafter referred to as the "Development") on the Subject Property. The City has approved Zone Change ZC 00- 1 1, Site Development Plan 00- 17 and Hillside Development Plan HDP 00- 13 for the Development. The City issued the approval subject to certain Conditions of Approval, including a condition requiring at least fifteen percent (1 5%) of the units in the Development to be affordable housing as required by the City's Inclusionary Housing Ordinance (CMC Chapter 2 1.85). C. The Development will consist of one hundred forty-three (143) multi family residential units. The Development shall include a minimum of twenty-nine (29) affordable multi-family housing units. Developer intends to meet the inclusionary housing condition for the Development by constructing, or causing to be constructed, a minimum of twenty-nine (29) multi family apartment units and as further described in "Attachment B." D. 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 2 1.85). This Agreement is that Affordable Housing Agreement pursuant to Section 21.85.140 of CMC Chapter 21.85, and shall be executed and recorded prior to the approval of any building permit for the Subject Property. 1 NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Satisfaction of Affordable Housing Obligation and Conditions of Amroval. The Conditions of Approval of Zone Change ZC 00-1 1, Site Development Plan 00-17 and Hillside Development Plan HDP 00- 13, and the requirements of the City's Inclusionary Housing Ordinance (CMC Chapter 2 1.85) shall not be satisfied unless 29 units of the 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 one hundred fourteen (1 14) market rate units and at least twenty-nine (29) affordable units may be constructed with approval of this agreement. 2. Number and Tme of Affordable Units. As a condition to the satisfaction of Developer's affordable housing requirements for the Development, Developer shall construct, or cause to be constructed, on the Subject Property at least twenty-nine (29) 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 twenty-nine (29) Affordable Multifamily Units shall be constructed in the Development. 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 Affordability Reauirements. The Affordable Units shall be available to households with incomes not exceeding 60% 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 60% 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). 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 2 the City, provided for below, which shall supersede this Agreement upon recordation of the Regulatory Agreement. In addition to the requirements above, the Developer agrees to participate in the Section 8 Rental Assistance Voucher Program and to accept vouchers for all restricted affordable units, if made available to a tenant for rent subsidy purposes. 3.4 Schedule for Developing Affordable Multifamily Units. Developer shall provide the Affordable Multifamily Units concurrent with the project's market rate units. 4. 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 the Development and City (the "Regulatory Agreement"), following a format designated by City. 5. Compliance Reports. Following completion of construction of any of the Affordable Multifamily Units, a Compliance Report meeting the requirements of Section 2 1.85.140 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 Property 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) 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 3 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 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 the Development 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 reasonabIe time period but in no event 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 Development until such cure is completed. 8. Appointment 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 the Development (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 Requirements. Until the issuance of certificates of occupancy for all of the Affordable Multifamily Units, Developer and its successors and assigns acquiring title to the 4 Development, during their respective periods of fee ownership of the Development, shall obtain, at their expense, commercial general liability insurance for development of the Development, naming Indemnitees as additional named insureds with aggregate limits of not less than five million dollars ($5,000,000), for bodily injury and death and property damage, including 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 the Development. 1 1. 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: CARLSBAD APTS. L.P. C/O 3993 HOWARD HUGHES PARKWAY SUITE 450 LAS VEGAS, NV 89109 FACSIMILE: (702) 734-4645 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. the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. Integrated Agreement. This Agreement constitutes the entire Agreement between 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 and the portion of Master Plan designated for non-residentially related community facilities use) in the official Records of the County of San Diego. 5 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 written. DEVELOPER CITY Carlsbad Apts. L.P., a Nevada Limited Partnership A Municipal Corporation By: Carlsbad Apts Mh4, Inc. a Nevada By: Its General Manager CITY OF CARLSBAD, Corporation Community Development Director By: Title: President If required by City, proper notarial acknowledgment of execution by Developer must be attached. If a Corporation, 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 Secretary, CFO or Assistant Treasurer Otherwise, the corporation secretary under corporate seal empowering the officer(s) signing to bind the corporation. attach a resolution certified by the secretary or assistant APPROVED AS TO FORM 6 RJCUAJR STATE OF 6XMWR" ) ) ss. COUNTY OF @-\ k&k ) On s/zb ,200&, before me%mm\b\ personally appearedhwk a,dq,d, personally known to me (or proved to 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 hisheritheir authorized capacity(ies), and that by hishedtheir 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) otary Public - State of Nevada County of Clark SHARON D. PRlBlL 7 EXHIBIT “A” LEGAL DESCRIPTION ALL THAT PORTION OF PARCEL “A’ AS SHOWN BY CERTIFICATE OF COMPLIANCE RECORDED JULY 15,2003 AS FILE NO. 2003-0838234 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: THOSE PORTIONS OF LOTS 3 AND 4 OF SECTION 32, TOWNSHIP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, AND PARCEL 2 OF PARCEL MAP NO. 4838, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED JUNE 18,1976 IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, AS DISCLOSED BY CERTIFICATE OF COMPLIANCE FSCORDED PARTICULARLY DESCRIBED AS FOLLOWS: JANUARY 24,1985 AS FILE NO. 85-024949 OF OFFICIAL RECORDS, MORE COMMENCING AT THE NORTHEASTERLY CORNER OF SAID LOT 4, BEING AN ANGLE POINT IN THE BOUNDARY OF PARCEL 2 AS SHOWN ON PARCEL MAP 487, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 30,1971; THENCE ALONG THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID PARCEL 2 OF PARCEL MAP 487, SOUTH 00°48’25” WEST, 525.95 FEET TO A POW ON THE NORTHERLY BOUNDARY OF MARRON ROAD DESCRIBED IN DEED 144269 OF OFFICIAL RECORDS, SAID POINT BEING ALSO THE TRUE POINT OF BEGINNING; TO THE CITY OF CARLSBAD, RECORDED MAY 23,1973 AS DOCUMENT NO. 73- THENCE ALONG SAID NORTHERLY BOUNDARY OF MARRON ROAD SOUTH 81”06’26” WEST, A DISTANCE OF 212.49 FEET TO THE BEOI”1NG OF A TANGENT CURVE CONCAVE SOUTHERLY, HAVING A RADIUS OF 1008.00 FEET; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04’36’26”, AN ARC DISTANCE OF 81.05 FEET; THENCE SOUTH 76’30’00” WEST, A DISTANCE OF 59.06 FEET; THENCE SOUTH 81’06’26‘’ WEST, A DISTANCE OF 208.52 FEET TO THE NORTHWESTERLY CORNER OF THE LAND DESCRIBED IN DEED TO LARWIN SAN DIEGO, INC., RECORDED DECEMBER 29,1972 AS FILE NO. 347021; THENCE LEAVING SAID NORTHERLY BOUNDARY OF MARRON ROAD NORTHERLY ALONG THE PROLONGATION OF THE WESTERLY LINE OF SAID DEED TO LARWIN SAN DIEGO, INC. NORTH 04°13’23’y WEST, A DISTANCE OF 74.41 FEET TO THE SOUTHERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP 487; THENCE ALONG THE SOUTHEASTERLY BOUNDARY OF SAID PARCEL 2 OF PARCEL MAP 487 NORTH 46”00’31” EAST, A DISTANCE OF 103.80 FEET TO THE MOST SOUTHERLY CORNER OF PARCEL 2 OF SAID PARCEL MAP NO. 4838; 2701 IExhAParcelA 911 5/03 Page 1 of 3 EXHIBIT ‘$A’’ LEGAL DESCRIPTION THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 2 OF SAID PARCEL MAP NO. 4838 NORTH 03’09’03’’ WEST, A DISTANCE OF 599.40 FEET; THENCE LEAVING SAID WESTERLY LINE NORTH 86’50’57’’ EAST, A DISTANCE OF 92.41 FEET; THENCE NORTH 45’40’28” EAST, A DISTANCE OF 115.19 FEET; THENCE NORTH 87’19’55”EAST, A DISTANCE OF 11.15 FEEL’; THENCE SOUTH 52’10’48” EAST, A DISTANCE OF 12.91 FEET: THENCE NORTH 74’12’22’’ EAST, A DISTANCE OF 52.63 FEET: THENCE SOUTH 63’48’00’’ EAST, A DISTANCE OF 96.71 FEET; THENCE NORTII 89’07’23’’ EAST, A DISTANCE OF 36.14 FEET; THENCE SOUTH 59’29’42’’ EAST, A DISTANCE OF 38.37 FEET; THENCE SOUTH 39”22’47” EAST, A DISTANCE OF 61.30 FEET; THENCE SOUTH 17’02’52’’ EAST, A DISTANCE OF 12.89 FEET; THENCE SOUTH 19’1 1’54” WEST, A DISTANCE OF 40.74 FEET: THENCE SOUTH 00’34’05” WEST, A DISTANCE OF 32.59 FEET; THENCE SOUTH 14’22’5 1” EAST, A DISTANCE OF 67.04 FEET; THENCE SOUTH 85”33’44” EAST, A DISTANCE OF 123.74 FEET; THENCE SOUTH 76’03’18” EAST, A DISTANCE OF 55.57 FEET; THENCE SOUTH 22’19’31’’ EAST, A DISTANCE OF 57.20 FEET; THENCE SOUTH 34O12’56” EAST, A DISTANCE OF 75.80 FEET; THENCE SOUTH 30’26’24” EAST, A DTSTANCE OF 18.79 FEET: THENCE NORTH 52’35’27” EAST, A DISTANCE OF 15.36 FEET; THENCE SOUTH 52’27’00” EAST, A DISTANCE OF 27.03 FEET; THENCE SOUTH 39’06’22” EAST, A DISTANCE OF 72.19 FEET: 2701 IExhAParcelA 911 5/03 Page 2 of 3 EXHIBIT “A” LEGAL DESCRTPTION THENCE SOUTH 48’08’40” WEST, A DISTANCE OF 13.75 FEET; THENCE SOUTH 34’54’1 1” EAST, A DISTANCE OF 35.62 FEET; THENCE SOUTH 25’03’48’’ EAST, A DISTANCE OF 53.72 FEET; THENCE SOUTH 42’07 ’25” EAST, A DISTANCE OF 3 1.06 FEET; THENCE SOUTH 71’30’33’’ EAST, A DISTANCE OF 65.88 FEET; THENCE NORTH 68’36’43” EAST, A DISTANCE OF 22.32 FEET; THENCE NORTH 79’23’01’’ EAST, A DISTANCE OF 35.75 FEET; THENCE SOUTH 57’03’48’’ EAST, A DISTANCE OF 6.75 FEET TO A POINT ON THE NORTHWESTERLY BOUNDARY OF RANCHO AGUA HEDIONDA ACCORDING TO THE PARTITION MAP THEREOF NO. 823, FILED NOVEMBER 16,1896 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE ALONG SAID NORTHWESI’EKLY BOUNDARY SOUTH 32”36‘ 12” WEST, A DISTANCE OF 55.88 FEET TO A POINT ON SAID NORTHERLY BOUNDARY OF MARRON ROAD; THENCE ALONG NORTHERLY BOUNDARY SOUTH 81’06’26’’ WEST, A DISTANCE OF 437.03 FEET TO THE TRUE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL CONTAINS 10.63 ACRES MORE OR LESS. 2701 IExhAParcelA 911~~3 Page 3 of 3 " . CERTIFICATION PURSUANTTO GOVERNMENT CODE SECTION 27361.7 Place of Execution I certify under penalty of perjury that this material is a true copy of the original material contained in this document. 4194 Recorder Form #R9 ATTACHMENT B Unit Size One Bedroom Two Bedroom LOCATION, SIZE, AND BEDROOM COUNT OF AFFORDABLE UNITS Square Footage 683 960 - 1010 I Three Bedroom I 1185 9