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
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SEP 02,2004 459 PM
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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.
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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
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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
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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
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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.
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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
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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
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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
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" .
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
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