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HomeMy WebLinkAboutCT 97-16A; Archstone-Smith Operating Trust; 2003-1229584; Affordable Housing-Regulatory Agreement & Dec. of Restrictive CovenantsRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office DOC # 2003-1229584 OCT 06s 2003 4~03 PPI OFFICIAL RECORDS W DIEGO COlU4TY RECORDER'S OFFICE GREGORY J. SHITHi COUNTY RECORDER FEES: 44.00 Attn. City Clerk 1200 Carlsbad Village Drive Carlsbad, CA 92008 (Space above for Recorder's Use) REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") is made and entered into as of this Carlsbad, a municipal corporation (the "City"), and ARCHSTONE-SMITH OPERATING TRUST, a Maryland real estate investment trust ("Owner"). 2nd day of October, 2003, by and between the City of RECITALS 1. The City and Owner have entered into that certain Affordable Housing Agreement Imposing Restrictions on Real Property date October 5, 1998, which was recorded on February 15,2002, in the Official Records of San Diego County as Document No. 2002-0135148. The City and Owner have entered into that certain Addendum No. 1 to Affordable Housing Agreement dated February 13,2001, which was recorded on March 12,2002, in the Official Records of San Diego County as Document No. 2002-0206979. The City and Owner has entered into that certain Addendum No. 2 to Affordable Housing Agreement dated February 13,2002, which was recorded on March 12,2002, in the Official Records of San Diego County as Document No. 2002-0206980. The City and Owner have entered into that certain Addendum No. 3 to Affordable Housing Agreement dated February 5,2003, which was recorded on February 25,2003, in the Official Records of San Diego County as Document No. 2003- 021 01 86. The Affordable Housing Agreement and subsequent Addendums (collectively, the "AHA") set forth the affordable housing requirements for the Kelly Ranch Project to be developed on Planning areas D, G and H of the Kelly Ranch Project, located on the real property in the City of Carlsbad, County of San Diego, more particularly described in Exhibit A attached hereto and incorporated herein (the "Property"). 2. The Owner intends to develop 45 1 multi-family apartment units within Planning Areas D, G and H of the Kelly Ranch Project. Of the 45 1 multi-family apartment units, initially, 11 1 multi-family apartment units ("Low Income Units") will ultimately be restricted to and affordable to low income households. The Low Income Units will be developed to meet the inclusionary housing requirement of the Kelly Ranch Project. 3. The requirement to provide the affordable housing for Planning Area A, shall be deferred until such time as building permits are requested for Planning Area A. The building permits shall not be released for Planning Area A until such time as the required additional affordable housing units are either occupied by eligible tenants or have been designated as 1 affordable units and are vacant and ready for occupancy by eligible tenants within the multifamily affordable rental housing project to be constructed and operated by the Owner, or other party that may at a later date be approved by the City at the request of the Owner. The affordable housing units shall be constructed with the project to be developed on Planning Areas D, G and H of the Kelly Ranch Project as indicated with the original affordable housing agreement. 4. Owner has agreed to observe all the terms and conditions set forth below. 5. Owner holds a fee interest in the Development land, and in all improvements to be constructed by Owner on such land. 6. In order to ensure that the entire Development will be used and operated in accordance with these conditions and restrictions, the City and the Owner wish to enter into this Agreement. THEREFORE, the City and the Owner hereby agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions When used in this Agreement, the following terms shall have the respective meanings assigned to them in this Article 1. (a) "Agency" shall mean the Carlsbad Redevelopment Agency, Carlsbad, California, a public body, corporate and politic. (b) "Agreement" shall mean this Regulatory Agreement and Declaration of Restrictive Covenants. (c) "City" shall mean the City of Carlsbad, a municipal corporation. (d) "Development" shall mean the Property and the four hundred fifty-one (45 1) units to be constructed on the Property, as well as all landscaping, roads and parking spaces existing thereon, as the same may from time to time exist. (e) "Gross Income'' shall mean the total anticipated annual income of all persons in a household, as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of gross income. In the event that no such successor program exists, the City shall provide the Owner with a reasonably similar method of calculation of gross income as provided in said Section 6914. 2 (0 "HCD" shall mean the California Department of Housing and Community Development. (g) ''Low Income Household" shall mean a household whose annual gross income does not exceed eighty percent (80%) of the Area Median Income, adjusted for household size. (h) "Low Income Units" shall mean the Units limited to occupancy by Low Income Households pursuant to Section 2.1 below. (i) "Market Rate Unit" shall mean the Units limited to occupancy by non-low Income eligible Households, pursuant to Section 2.1 below. (j) "Median Income'' shall mean the median gross yearly income adjusted for actual household size, in the County of San Diego, California, as published from time to time by the U.S. Department of Housing and Urban Development. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (1 8) months, the City shall provide the Owner with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HCD. (k) "Owner" shall mean Archstone-Smith Operating Trust, a Maryland real estate investment trust and their successors in interest to the Development. (1) "Project" shall mean the Kelly Ranch Project which shall not exceed eight hundred seventy-seven (877) dwelling units. (m) "Property" shall mean the real property described in Exhibit A attached hereto and incorporated herein. (n) "Rent" shall mean the total of monthly payments by the tenants of a Unit for the following: use and occupancy of the Unit and land and associated facilities, including parking; any separately charged fees or service charges assessed by Owner which are required of all tenants, other than security deposits; an allowance for the cost of an adequate level of service for utilities paid by the tenant, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service; any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than the Owner, and paid by the tenant. (0) "Term" shall mean the period of time beginning on the date of recordation of this Agreement and ending fifty-five (55) years after a Certificate of Occupancy is issued by the City for all Units. (p) "Units1' shall mean one hundred eleven (1 1 1) rental units to be constructed on the Property by the Owner, which are offered for rent to and which shall be affordable to low income households. 3 ARTICLE 2 AFFORDABILITY COVENANTS 2.1 Occuuancv Requirement. The Low Income Units shall be rented and occupied by or, if vacant, available for rental and occupancy by Low Income Households. 2.2 Allowable Rent. (a) The monthly Rent charged the occupants of the Low Income Units shall not exceed one-twelfth of thirty percent (30%) of eighty percent (80%) of Median Income, adjusted for household size. The monthly Rent charged the occupants of the Market Rate Units shall be established by the Owner. (b) Subject to Section 2.3 below, in calculating the allowable Rent for all Units, the following assumed household sizes shall be utilized: Number of Bedrooms Assumed Household Size studio One Two Three Four 1 1.5 3 4.5 6 2.3 Increased Income of OccuDving Households. In the event, upon annual recertification of an occupant household's income, the Owner discovers that a Low Income Household no longer qualifies as a Low Income Household, but the household income does not exceed 90% of the Area Median Income, such household's Unit shall continue to be considered a Low Income Unit, and the Rent shall remain at the allowable rent set forth in Section 2.2 above. In the event, upon annual recertification of an occupant household's income, the Owner discovers that a Low Income Household no longer qualifies as a Low Income Household and the household's income exceeds 90% of the Area Median Income, such household's Unit shall be considered a Market Rate Unit, and the Rent may be increased to the levels charged to Market Rate Households, and the Owner shall rent the next available Unit to a Low Income Household to comply with the requirements of Section 2.1 above. Moreover, a Unit occupied by a Low Income Household shall be deemed, upon the termination of such Low Income Household's occupancy, to be continuously occupied by a Low Income Household, as applicable, until reoccupied, at which time the character of the Unit shall be redetermined. 2.4 Lease Provisions. Owner shall include in leases for all Units provisions which authorize the Owner to immediately terminate the tenancy of any household one or more of whose members misrepresented any fact material to the household's qualification as a Low Income Household. Each lease or rental agreement shall also provide that the household is subject to annual certification in accordance with Section 3.1 below, and that, if the household's income increases above the applicable limits for a Low Income Household, such household's Rent may be subject to increase. 4 2.5 Section 8 Certificate Holders. For the Low Income Units, the Owner will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act, or its successor. The Owner shall not apply selection criteria to Section 8 voucher holders that is more burdensome than criteria applied to all other prospective tenants, nor shall the Owner apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of units by such prospective tenants. 2.6 Condominium Conversion. The Owner shall not convert Development units to condominium or cooperative Ownership or sell condominium or cooperative conversion rights to the Property during the Term of this Agreement. ARTICLE 3 INCOME CERTIFICATION AND REPORTING 3.1 Income Certification. The Owner will obtain, complete and maintain on file, immediately prior to initial occupancy and annually thereafter, income certifications from each Low Income Household. The Owner shall make a good faith effort to verify that the income provided by an applicant or occupying household in an income certification is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain pay stubs for the four (4) most recent pay period; (2) obtain income tax returns for the two (2) most recent tax years; (3) conduct a credit agency or similar search; (4) obtain an income verification form from the applicant's current employer; (5) obtain an income verification form from the Social Security Administration andor the California Department of Social Services if the applicant receives assistance from either of such agencies; or (6) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications shall be available to the City upon written request. 3.2 Annual Report to City. Each year the Owner shall submit an annual report to the City, in a form approved by the City. The annual report shall include for each Unit covered by this Agreement, the Rent and the income and household size of the household occupying the Unit. The report shall also state the date the tenancy commenced for each rental Unit and such other information as the City may be required by law to obtain. 3.3 Additional Information. Beginning the first June 1' after the final Certificate of Occupancy for the Development, the Owner shall provide any additional information regarding the Low Income Units and the Owner's obligations under this Agreement that is reasonably requested by the City. Upon 5 days prior written request and during regular business hours, the City shall have the right to examine and make copies of all books, records or other documents of the Owner that pertain to any Unit. 3.4 Records. Owner shall maintain complete, accurate and current records pertaining to the Units, and, upon 5 days prior written request by the City, shall permit any duly authorized 5 representative of the City to inspect records, including records pertaining to income and household size of tenant households. 3.5 Welfare Reform Act Compliance. If and to the extent applicable, and unless Owner is otherwise exempt from the following requirement under applicable law, Owner shall comply with the requirements of the Public Responsibility and Work Opportunity Reform Act of 1996, as amended, including, without limitation, verifying the citizenship or immigration status of prospective tenants for the Units in accordance with the verification procedures established under such Act. ARTICLE 4 OPERATION OF THE DEVELOPMENT 4.1 Residential Use. The Development shall be operated only for residential use. No part of the Development shall be operated as transient housing. 4.2 Compliance with Affordable Housing Agreement. Owner shall comply with all the terms and provisions of the Affordable Housing Agreement. 4.3 Taxes and Assessments. Owner shall pay all real and personal property taxes, assessments and charges and all franchise, income, employment, old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that the Owner shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event the Owner exercises its right to contest any tax, assessment, or charge against it, Owner, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. 4.5 Nondiscrimination. All of the Units shall be available for occupancy on a continuous basis to members of the general public who are income eligible. Owner shall not give preference to any particular class or group of persons in renting or selling the Units, except to the extent that the Units are required to be leased to Low Income Households or to Carlsbad Redevelopment Agency or City displacees pursuant to Section 4.6 below. There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall Owner or any person claiming under or through the Owner, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of any Unit or in connection with the employment of persons for the operation and management of the Development. All deeds, leases or contracts made or entered into by the Owner as to the Units or the Development or portion thereof, shall contain covenants concerning discrimination as prescribed by the Affordable Housing Agreement. 6 4.6 Preference to Displacees. Owner shall give a preference in the rental of any Units to eligible households displaced by activity of the Carlsbad Redevelopment Agency or the City upon receiving a written request of the Agency or the City regarding such displacement. For the purposes of this Section 4.6, “preference” means moving such persons to the top of any waiting list and processing applications by such persons ahead of applications submitted by other persons. ARTICLE 5 PROPERTY MANAGEMENT AND MAINTENANCE 5.1 Management Responsibilities. The Owner is responsible for all management functions with respect to the Development, including without limitation the selection of tenants, certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The City and the Agency shall have no responsibility over management of the Development. The Owner shall retain a professional property management company approved by the City in its reasonable discretion to perform its management duties hereunder, unless the s demonstrate to the City that it has the capacity to self-manage the Development and receives written City approval for self-management. A resident manager shall also be required, selection of whom shall be at the discretion of the Owner. 5.2 Management Agent: Periodic Reports. The Development shall at all times be managed by an experienced management agent reasonably acceptable to the City, with demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing (as approved, the “Management Agent”). Prior to the first occupancy permit for any building within the Development, the Owner shall submit for the City‘s approval the identity of any proposed Management Agent. The Owner shall also submit such additional information about the background, experience and financial condition of any proposed Management Agent as is reasonably necessary for the City to determine whether the proposed Management Agent meets the standard for a qualified Management Agent set forth above. If the proposed Management Agent meets the standard for a qualified Management Agent set forth above, the City shall approve the proposed Management Agent by notifying the Owner in writing. Unless the proposed Management Agent is disapproved by the City within thn-ty (30) days, which disapproval shall state with reasonable specificity the basis for disapproval, it shall be deemed approved. For the purposes of this Section 5.2 the current Owner, Archstone Smith Operating Trust is approved for self-management by the City as managing Agents for the Development. 5.3 Performance Review. The City reserves the right to conduct an annual (or more frequently, if deemed necessary by the City) review of the management practices and financial status of the Development. The purpose of each periodic review will be to enable the City to determine if the Development is being operated and managed in accordance with the requirements and standards of this Agreement. The Owner shall cooperate with the City in such reviews. 7 5.4 Replacement of Management Agent. If, as a result of a periodic review, the City determines in its reasonable judgment that the Development is not being operated and managed in accordance with any of the material requirements and standards of this Agreement, the City shall deliver notice to the Owner of its intention to cause replacement of the Management Agent, including the reasons therefore. Within fifteen (15) days of receipt by the Owner of such written notice, City staff and the Owner shall meet in good faith to consider methods for improving the financial and operating status of the Development, including, without limitation, replacement of the Management Agent. If, after such meeting, City staff reasonably determines that the Managing Agent is not adequately performing and recommends in writing the replacement of the Management Agent, Owner shall promptly dismiss the then Management Agent, and shall appoint as the Management Agent a person or entity meeting the standards for a Management Agent set forth in Section 5.2 above and approved by the City pursuant to Section 5.2 above. Any contract for the operation or management of the Development entered into by the Owner shall provide that the contract can be terminated as set forth above. Failure to remove the Management Agent in accordance with the provisions of this Section shall constitute default under this Agreement, and the City may enforce this provision through legal proceedings as specified in Section 6.3. 5.5 Approval of Management Policies. The Owner shall submit its written management policies with respect to the Development to the City for its review, and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this Agreement. 5.6 Prouertv Maintenance. The Owner agrees, for the entire Term of this Agreement, to maintain all interior and exterior improvements, including landscaping, on the Property in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. The City places prime importance on quality maintenance to ensure that all affordable housing projects within the City are not allowed to deteriorate due to below-average maintenance. Normal wear and tear of the Development will be acceptable to the City assuming the Owner agree to provide all necessary improvements to assure the Development is maintained in good condition. 'The Owner shall make ali repairs and repiacements necessary to keep the improvements in good condition and repair. In the event that the Owner breaches any of the covenants contained in this section and such default continues for a period of five (5) business days after written notice from the City with respect to graffiti, debris, waste material, and any other matter posing a threat to the health and safety of the tenants, or thirty (30) days after written notice with respect to general maintenance, landscaping and building improvements, (and subject to any stricter requirements included in any applicable City ordinance) then the City, in addition to whatever other remedy it 8 may have at law or in equity, shall have the right to enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, the City shall be permitted (but is not required) to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property, in the amount of the reasonable expenditures arising from such acts and work of protection, maintenance, and preservation by the City andor costs of such cure, including an administrative charge equal to ten percent (10%) of such expenditures, which amount shall be promptly paid by the Owner to the City upon demand. ARTICLE 6 MISCELLANEOUS 6.1 Term. The provisions of this Agreement shall apply to the Property for the entire Term as defined in Section 1 above. This Agreement shall bind any successor, heir or assign of Owner, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the City in a writing. 6.2 Covenants to Run With the Land. The City and the Owner hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the Term of this Agreement said covenants and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the City expressly release such conveyed portion of the Property fiom the requirements of this Agreement. 6.3 Enforcement bv the Citv. If the Owner fails to perform any obligation under this Agreement, and fail to cure the default within 30 days after the City has notified the Owner in writing of the default or, if the default cannot be cured within 30 days, failed to commence to cure within 30 days and thereafter diligently pursue such cure to completion within ninety (90) days, the City shall have the right to enforce this Agreement by any or all of the following actions, or any other remedy provided by law. (a) action at law or in equity to compel Owner's performance of its obligations under this Agreement, and/or for damages. Action to Compel Performance or for Damages. The City may bring an (b) Remedies Provided Under Affordable Housing Agreement. The City may exercise any other remedy provided under the Affordable Housing Agreement. 6.4 Attorneys Fees and Costs. In any action brought to enforce this Agreement, the prevailing party shall be entitled to all reasonable costs and expenses of suit, including reasonable attorneys' fees. This section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute. 9 6.5 Recording and Filing. The City and the Owner shall cause this Agreement, and all amendments and supplements to it, to be recorded against the Property in the Official Records of the County of San Diego. 6.6 California. Governing Law. This Agreement shall be governed by the laws of the State of 6.7 Amendments. This Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title, and duly recorded in the real property records of the County of San Diego, California. 6.8 Notice. All notices given or certificates delivered under this Agreement shall be deemed received on the delivery or refusal date shown on the delivery receipt, if: (i) personally delivered by a commercial service which furnishes signed receipts of delivery or (ii) mailed by certified mail, return receipt requested, postage prepaid, addressed to the party to receive such notice at the addresses set forth below. Any of the parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or communications shall be sent. 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: Archstone-Smith Operating Trust Attn: John Luedtke, Group Vice President Kirk C. Roloff, Vice President One Spectrum Pointe Drive, Suite 225 Lake Forest, CA 92630 Archstone-Smith Attn: Michael Berman, Vice President 9200 E. Panorama Circle, Suite 400 Englewood, CO 801 12 Mayer, Brown, Rowe & Maw Attn: Nancy Nieto 141 E. Palace Avenue Santa Fey NM 8750 1 10 6.9 Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this Agreement shall not in any way be affected or impaired thereby. IN WITNESS WHEREOF, the City and the Owner have executed this Agreement by duly authorized representatives, all on the date first written above. OWNER ARCHSTONE-SMITH OPERATING CITY CITY OF CARLSBAD, a municipal corporation Community Development Director APPROVED AS TO FORM: RONALD R. BALL, CITY ATTORNEY By: bssistant City Attorney 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 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 11 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Mersonally known to me 0 proved to me on the basis of satisfactory evidence to be thee) whose subscribed the within instrument and ted the instrument. Place Notary Seal Above Though the information below is not required and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: Individual 0 Corporate Officer - Title(s): I I 0 Partner - 0 Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: 1 Signer Is Representing: I I' 0 1999 National Notary Association - 9350 De Solo Ave., P.O. Box 2402 * Chalswwth, CA 91 313-2402 w.MtionaInotaIy org Prod. No. 5907 Reorder: Call Toll-Free 1-800-8766827 EXHIBIT A Property Description LOTS 162,165,168 AND 169 OF CARLSBAD TRACT NO. 97-16AY IN THE, CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14340, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON FEBRUARY 1,2002. A- 1