HomeMy WebLinkAboutCT 14-10; Whiting, Alan L. and Grace Alan Lee; 2020-0390816; Affordable Housing Agreement/ReleaseDOC# 2020-0390816
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Jul 21, 2020 08:00 AM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
PAGES; 20
RECORDING REQUESTED BY:
CalAtlantic Title, Inc.
AND WHEN RECORDED MAIL DOCUMENT TO:
City of Carlsbad
City of Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
SPACE ABOVE FOR RECORDER'S USE ONLY
A.P.N.: 215-020-07-00 and 215-050-21-00 and 215-050-22-00 and 215-050-47-00 and 215-050-44-00 (PORTIONS)
pt cf rd CONTAINING COVENANTS AND
RESTRICTIONS GOVERNING RENTAL OF
AFFORDABLE SECOND OR ACCESSORY
DWELLING UNIT
Title of Document
Pursuant to Senate Bill 2 Building Homes and Jobs Act (GC Code Section 27388.1), effective January 1, 2018, a
fee of seventy-five dollars ($75.60)-ifiall be paid at the time of recording of every real estate instrument, paper, or
notice required or permitted by law to be recorded, except those expressly exempted from payment of recording
fees, per each single transaction per parcel of real property. The fee imposed by this section shall not exceed
two hundred twenty-five dollars ($225.00).
• Exempt from fee per GC 27388.1 (a) (2); recorded concurrently "in connection with" a transfer subject to the
imposition of documentary transfer tax (DTT).
O Exempt from fee per GC 27388.1 (a) (2); recorded concurrently "in connection with" a transfer of real property
that is a residential dwelling to an owner-occupier.
O Exempt from fee per GC 27388.1 (a) (1); fee cap of $225.00 reached.
O Exempt from the fee per GC 27388.1 (a) (1); not related to real property.
THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($3.00 Additional Recording Fee Applies)
RECORDING REQUESTED BY:
CalAtlantic Title, Inc.
AND WHEN RECORDED MAIL DOCUMENT TO:
City of Carlsbad
City of Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
SPACE ABOVE FOR RECORDER'S USE ONLY
A.P.N.: 215-020-07-00 and 215-050-21-00 and 215-050-22-00 and 215-050-47-00 and 215-050-44-00 (PORTIONS)
p,art.e 1,-?..rd CONTAINING COVENANTS AND
j RESTRICTIONS GOVERNING RENTAL OF
AFFORDABLE SECOND OR ACCESSORY
DWELLING UNIT
Title of Document
Pursuant to Senate Bill 2 - Building Homes and Jobs Act (GC Code Section 27388.1), effective January 1, 2018, a
fee of seventy-five dollars ($75,00) shall be paid at the time of recording of every real estate instrument, paper, or
notice required or permitted by law to be recorded, except those expressly exempted from payment of recording
fees, per each single transaction per parcel of real property. The fee imposed by this section shall not exceed
two hundred twenty-five dollars ($225.00).
Ri Exempt from fee per GC 27388.1 (a) (2); recorded concurrently "in connection with" a transfer subject to the
imposition of documentary transfer tax (DTT).
0 Exempt from fee per GC 27388.1 (a) (2); recorded concurrently "in connection with" a transfer of real property
that is a residential dwelling to an owner-occupier.
0 Exempt from fee per GC 27388.1 (a) (1); fee cap of $225.00 reached.
0 Exempt from the fee per GC 27388.1 (a) (1); not related to real property.
THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($3.00 Additional Recording Fee Applies)
RECORDING REQUESTED BY
CALATLANTIC TITLE, INC.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
No fee for recording pursuant to
Government Code Section 27383
AGREEMENT CONTAINING COVENANTS AND RESTRICTIONS GOVERNING
RENTAL OF AFFORDABLE SECOND OR ACCESSORY DWELLING UNIT
THIS AGREEMENT CONTAINING COVENANTS AND RESTRICTIONS
GOVERNING RENTAL OF AFFORDABLE SECOND OR ACCESSORY DWELLING UNIT
(the "Agreement") is made and entered into as of July 6, 2020, by and between the City of
Carlsbad, a municipal corporation (the "City"), and Alan L. Whiting and Grace Alan Lee,
husband and wife as community property with right of survivorship, or any successor in interest
(collectively, the "Owner") with reference to the following:
RECITALS
A. Owner is the fee owner of that certain property in the City of Carlsbad, California,
which is more particularly described in Exhibit A (the "Property"). As of the Effective Date, two
(2) housing units are located, or will be constructed, on the Property. One unit shall be referred
to herein as the "Primary Unit" and the other unit shall be referred to herein as the "Second or
Accessory Dwelling Unit". Such units are designated on Exhibit B.
B. The Property, and other real property, are the subject of Tentative Map CT 14-10,
and Site Development Plan 14-15, which provided conditional approval of the construction of
one hundred twenty-three single family dwelling units (the "Master Development").
C. Condition No. 15 of Planning Commission Resolution No. 7226 for the Master
Development required, among other things, that the City and Lennar Homes of California, Inc.
(the "Developer") enter into that certain Affordable Housing Agreement dated as of August 24,
2018, and recorded in the Official Records of San Diego County (the "Official Records") on
April 25, 2019, as document 2019-0151230 (the "Affordable Housing Agreement"). The
Affordable Housing Agreement encumbers the Property and the other real property on which the
Master Development is developed.
D. The Affordable Housing Agreement satisfied the Developer's affordable housing
obligation, as set forth in Chapter 21.85 of the Carlsbad Municipal Code (the "Affordable
Housing Obligation"). The Owner, as the owner of the Property, is the successor-in-interest to
the Developer.
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E. In conjunction with the approval of the Master Development, the Developer
requested, and the City approved, the ability to satisfy the Master Development's Affordable
Housing Obligation by providing the Second or Accessory Dwelling Unit on the Property as an
alternative to providing for-sale single family dwelling units, as affordable units, in accordance
with Chapter 21.85 of the Carlsbad Municipal Code. Such approval is a form of assistance
specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the
Government Code (the "Incentive"). Accordingly, the Owner is required to make the Second or
Accessory Dwelling Unit available for rent exclusively to Low Income Households (as defined
below) at an Affordable Rent (as defined below).
F. This Agreement is required to be entered into by the City and the Owner, and
recorded in the Official Records against the Property, in accordance with Section 4d of the
Affordable Housing Agreement in order to comply with the requirements of the Affordable
Housing Obligation and Chapter 21.85 of the Carlsbad Municipal Code.
NOW THEREFORE, it is hereby agreed by and between the City and the Owner (each a
"Party", and, collectively, the "Parties") as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the terms set forth below shall have the following
meanings (other defined terms herein not referenced below shall have the meanings where first
used).
1.1 "Affordable Rent" means the maximum allowable Rent for the Second or
Accessory Dwelling Unit, equal to one-twelfth (1/12th) of thirty percent (30%) of seventy
percent (70%) of the Median Household Income for Low Income Households, adjusted for
assumed household size of two persons in a one-bedroom or three persons in a two-bedroom.
1.2 "Eligible Household" means a household that has been determined to be
eligible to be a Tenant of the Second or Accessory Dwelling Unit as a Low Income Household.
1.3 "HCD" means the State of California Department of Housing and
Community Development, or any successor
1.4 "HUD" means the U.S. Department of Housing and Urban Development,
or any successor.
1.5 "Low Income Household" means a household whose income does not
exceed the low income limits applicable to San Diego County, adjusted for household size, as
determined by HUD and published annually by the US Department of Housing and Urban
Development and/or the State of California Department of Housing and Community
Development. As of the Effective Date, such income limit is approximately equal to eighty
percent (80%) of Median Household Income.
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1.6 "Median Household Income" means median yearly income in San Diego
County as determined by HUD and published by HCD.
1.7 "Rent" means the total monthly payment by the Tenant of the Second or
Accessory Dwelling Unit for all of the following: (1) use and occupancy of the Second or
Accessory Dwelling Unit and land and all facilities associated with the Second or Accessory
Dwelling Unit, including but not limited to parking, storage, and use of any common areas; (2)
any separately charged fees or service charges assessed by the Owner to the Tenant, except
security deposits; (3) an allowance for utilities paid by the Tenant as established by the Carlsbad
Housing Authority, including garbage collection, sewer, water, electricity, gas and other heating,
cooking and refrigeration fuel, but not telephone service, Internet, or cable or subscription TV;
and (4) any other interest, taxes, fees or charges for use of the Property or associated facilities
that are assessed by a public or private entity other than the Owner and paid by the Tenant.
1.8 "Tenant" means an Eligible Household entitled by written or oral
agreement with the Owner to have the exclusive right to occupy the Second or Accessory
Dwelling Unit as a home or residence to the exclusion of all others.
ARTICLE 2
OWNER'S OBLIGATIONS
2.1 Rental of Second or Accessory Dwelling Unit to Eligible Households. The
Owner shall ensure that the Second or Accessory Dwelling Unit is rented to, and occupied by,
Eligible Households in accordance with this Agreement. The Owner shall not use the Second or
Accessory Dwelling Unit for any other purpose other than as set forth in this Agreement;
provided, however, nothing in this Agreement shall be deemed to prohibit the Second or
Accessory Dwelling Unit from being vacant so long as such vacant Second or Accessory
Dwelling Unit is not used by Owner (or any other person) for any purpose, including, but not
limited to use by the Owner in conjunction with the use and occupancy of the Primary Unit.
Except as set forth in the preceding sentence nothing in this Agreement limits the use or
occupancy of the Primary Unit.
(a) Income Certification. The Owner shall not enter into a lease or
rental agreement, or receive Rent from a Tenant, for the Second or Accessory Dwelling Unit
unless the Owner has made a good faith effort to verify that the income provided by an applicant
in an income certification is accurate by taking one or more of the following steps as a part of the
verification process: (1) obtain a pay stub for the most recent pay period; (2) obtain an income
tax return for the most recent tax year; (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 and/or 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 request.
(b) Maximum Allowable Rent. The maximum Rent charged to the
Tenant of the Second or Accessory Dwelling Unit shall not exceed Affordable Rent.
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(c) Increased Income of Tenants. If, upon recertification of a Tenant's
income pursuant to Section 2.2, the Owner determines that the Tenant's household income has
increased and exceeds the qualifying income for a Low Income Household, then such Tenant
shall continue to be considered an "Eligible Household", and shall be permitted to continue to
occupy the Second or Accessory Dwelling Unit, at the rent set forth in subsection (b), above;
provided, however, nothing in this Agreement shall prohibit the Owner from terminating such
tenancy upon the expiration of such Tenant's lease. Following such Tenant's vacancy, the Owner
shall lease the Second or Accessory Dwelling Unit to an Eligible Household.
(d) Information. At the request of the Owner, the City shall provide
the Owner with the low and very low income limits applicable to San Diego County, adjusted for
household size, as published from time to time by HUD and/or HCD.
2.2 Annual Certification. The Owner shall certify the Tenant's household
income on an annual basis. The Owner shall provide the City with a certification, in the form
attached as Exhibit C, no later than June 30th of each year of the Term setting forth the following
information with respect to the Tenant occupying the Second or Accessory Dwelling Unit: unit
address, Tenant name, size of Tenant's household, unit size, and date first occupied, and a copy
of the annual income certification obtained by the Owner from the Tenant. The purpose of the
yearly Owner certification is to document Owner's compliance with the restrictions set forth
herein.
2.3 Lease Provisions. The Owner shall use a form of Tenant lease addendum
(the "Tenant Lease Addendum") approved by the City for the Second or Accessory Dwelling
Unit, a copy of which is attached as Exhibit D. The City shall either approve or specify its basis
for disapproval, if any, within thirty (30) days after the Owner submits such proposed form lease
to City. The Tenant Lease Addendum shall, among other matters:
(a) provide that the Rent may not be raised more often than once every
twelve (12) months. The Owner will provide the Tenant with at least sixty (60) days written
notice of any increase in Rent, and any Rent increase shall not violate the limitations imposed by
this Agreement;
(b) prohibit the Second or Accessory Dwelling Unit (or any portion of
the Second or Accessory Dwelling Unit) from: (i) any sublease, except as permitted by Section
2.6, below; (ii) use as a "short-term vacation rental" (as such term is defined in Chapter 5.60 of
the City of Carlsbad Municipal Code, as may be amended from time to time); (iii) use for tourist
or transient use, or any other short-term rental; and (iii) being listed on any "hosting platform"
(as defined in California Business & Professions Code 22590, as may be amended from time to
time), including, but not limited to any Internet-based "hosting platform", such as "airbnb.com",
or any similar service;
(c) require the Tenant to provide an annual income certification to the
Owner;
(d) include, at Owner's option, the obligation for Tenant to provide a
security deposit not exceeding two months' rent; and
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(e) be for an initial term of one year.
2.4 Inspection. For purposes of confirming compliance with this Agreement,
the Second or Accessory Dwelling Unit shall be made available by Owner to be inspected by the
City during regular business hours upon seventy-two (72) hours' written notice; provided,
however, that any such inspection shall occur only once during any twelve (12) calendar month
period unless: (i) the City receives a complaint that a Tenant is occupying the Second or
Accessory Dwelling Unit in violation of this Agreement (or that the Owner is otherwise violating
this Agreement); or (ii) a new Tenant is occupying the Second or Accessory Dwelling Unit, in
which case City may re-inspect. The Owner hereby irrevocably grants the City (and its agents) a
right of entry to enter the Property for the purposes of such inspection.
2.5 Records. The Owner shall maintain reasonably complete and accurate
records pertaining to such rental of the Second or Accessory Dwelling Unit throughout the
duration of each tenancy. Owner shall permit any authorized representative of the City to inspect
such records of any current Tenant upon reasonable notice, including those resident files
pertaining to said rental, for the purpose of confirming compliance with the terms, conditions and
covenants of this Agreement.
2.6 Assignments and Subletting. The Owner shall at no time permit the
Tenant to assign its leasehold interest in the Second or Accessory Dwelling Unit or to sublet all
or a portion of the Second or Accessory Dwelling Unit to any person other than to another
Eligible Household. Owner shall have the right to approve or disapprove any proposed
assignment or sublease at Owner's sole discretion; provided that prior to approving any proposed
assignment or sublease, Owner shall comply with the provisions of Section 2.1 above to confirm
the eligibility of the proposed assignee or sub-lessee.
2.7 Agreement to Limitation on Rents.
(a) The Owner acknowledges that the Property, as a component of the
Master Development, received the Incentive from the City in connection with the approval of the
Master Development, and the Incentive is a form of assistance specified in Chapter 4.3
(commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections
1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where an owner has
received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a property
owner has so agreed by contract. The Owner hereby agrees to limit the Rents for the Second or
Accessory Dwelling Unit, as provided in this Agreement, in consideration of the Property's
receipt of the Incentive and further agrees that any limitations on Rents imposed on the Second
or Accessory Dwelling Unit are in conformance with the Costa-Hawkins Act.
(b) The Owner further warrants and covenants that the terms of this
Agreement are fully enforceable. The Owner agrees and acknowledges that the City would not
have provided the necessary approvals for the Master Development without the obligation to
record this Agreement against the Property in the Officials Records, and that in providing the
necessary approvals for the Master Development, the City was relying on the restrictions
imposed on the Second or Accessory Dwelling Unit by this Agreement.
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2.8 Deeds. Owner acknowledges that this Agreement shall be recorded in the
Official Records against the Property, and any deed transferring any fee interest in the Property
shall include the following language; provided, however, the failure to include the following
language shall not limit, waive, or impair the obligations set forth in this Agreement:
NOTICE: THE SECOND OR ACCESSORY DWELLING UNIT ON THIS PROPERTY
IS REQUIRED TO BE RENTED TO PERSONS MEETING CERTAIN ELIGIBILITY
REQUIREMENTS AT A BELOW-MARKET RATE RENT, PURSUANT TO THE
CITY OF CARLSBAD MUNICIPAL CODE. FOR MORE INFORMATION, SEE THE
AGREEMENT RECORDED AGAINST THIS PROPERTY ENTITLED
"AGREEMENT CONTAINING COVENANTS AND RESTRICTIONS GOVERNING
RENTAL OF AFFORDABLE SECOND OR ACCESSORY DWELLING UNIT". THE
RESTRICTIONS SET FORTH IN SUCH AGREEMENT BIND ALL HEIRS AND
SUCCESSORS TO THIS DEED.
ARTICLE 3
TERM
3.1 Term. This Agreement shall become effective as of the Effective Date
and shall remain in full force and effect for a term of fifty-five (55) years following the
recordation of this Agreement in the Official Records unless the City elects, in the City's sole
discretion, to terminate this Agreement by written instrument recorded in the Official Records.
ARTICLE 4
DEFAULT
4.1 Violations by Owner. Failure of the Owner to cure any default in the
Owner's obligations under the terms of this Agreement within thirty (30) days after the delivery
of a written notice of default from the City (or such longer period of time up to an additional
sixty (60) days as may be necessary to remedy such default, provided that the Owner has
commenced action during the thirty (30) days necessary to remedy such default, and the Owner
is proceeding with reasonable diligence to remedy such default) will constitute a default under
this Agreement.
4.2 Remedies. Subject to the applicable notice and cure period set forth
above, the City may exercise any and all remedies available to it at law or equity with respect to
the Owner's failure to satisfy the terms of this Agreement. Owner acknowledges that any breach
in Owner's performance of Owner's obligations under this Agreement shall cause irreparable
harm to the City, and materially impair the public policy objectives set forth in the Carlsbad
Municipal Code. Therefore, Owner agrees that the City is entitled to equitable relief in the form
of specific performance, and that an award of damages may not be adequate to compensate the
City for Owner's failure to perform according to the terms of this Agreement. Notwithstanding
the foregoing, the City, in its sole and absolute discretion, may elect the appropriate remedy for
Owner's default under this Agreement.
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ARTICLE 5
GENERAL PROVISIONS
5.1 Notices. All notices required pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given (a) upon personal delivery, including
delivery by courier, or (b) three (3) business days after the mailing by registered or certified mail,
return receipt requested, to the Party to receive such notice at the addresses set forth below:
To the City:
City of Carlsbad
Housing and Neighborhood Services
1200 Carlsbad Village Drive
Carlsbad, CA 92008
To the Owner:
Alan L. Whiting and Grace Alan Lee
6690 Encelia Place
Carlsbad, CA 92011
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.
5.2 Entire Agreement. The Recitals set forth above, and all exhibits attached
hereto, are hereby incorporated into this Agreement by this reference. This Agreement contains
the entire agreement between the Parties as to the subject matter hereof, and supersedes any and
all prior arrangements and understandings between the Parties, and no other agreement,
statement or promise made by either Party hereto which is not contained herein shall be binding
or valid provided, however, that nothing in this Section limits the effect or enforceability of the
City of Carlsbad Municipal Code. This Agreement shall not be construed as if it had been
prepared by one of the Parties, but rather as if both Parties had prepared it. The Parties have read
and reviewed this Agreement and agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party (including but not limited to Civil Code
Section 1654 as may be amended from time to time) shall not apply to the interpretation of this
Agreement. In the event of any conflict between the terms of this Agreement, and the terms of
the disclosure statement executed by the City and the Owner in conjunction with this Agreement,
the terms of this Agreement shall prevail.
5.3 Amendment. This Agreement may be amended only by the written
agreement of the Parties.
5.4 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, or if any provision of this Agreement is rendered invalid or
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unenforceable pursuant to any California statute which became effective after the Effective Date,
the remaining portions of this Agreement shall nevertheless remain in full force and effect.
5.5 Waiver. The waiver of or failure to enforce any provision of this
Agreement shall not operate as a waiver of any future breach of any such provision or any other
provisions hereof
5.6 Covenant Running with the Land. The covenants and conditions herein
contained shall apply to and bind, during their respective periods of fee ownership, Owner and
its heirs, executors, administrators, successors, transferees, and assignees (each a "Transferee")
having or acquiring any right, title or interest in or to any part of the Property, whether by
operation of law or in any manner whatsoever, and shall run with and burden the Property for the
entire Term unless or until released in accordance with Article 3. All of the provisions of this
Agreement shall be enforceable as equitable servitudes and shall constitute covenants running
with the land pursuant to applicable laws, including without limitation Section 1468 of the
California Civil Code. Each covenant to do, or to refrain from doing, some act on the Property
hereunder: (a) is for the benefit of the Property and is a burden on the Property, (b) runs with the
Property, and (c) is binding upon each Party and each successive owner during its ownership of
the Property or any portion thereof, and shall be a benefit to and a burden upon each Party and
the Property hereunder and each other person or entity succeeding in an interest to the Property.
5.7 Assignment and Assumption; Release. Provided that a Transferee
expressly assumes Owner's obligations hereunder pursuant to an assignment and assumption
agreement in a form approved by the City in connection with the transfer of any part of the
Property, the Owner shall be released from all obligations following the recordation of such
assignment and assumption agreement in the Official Records.
5.8 Non-Discrimination. The Second or Accessory Dwelling Unit shall be
available for occupancy to members of the general public. The Owner shall not give preference
to any particular class or group of persons in renting the Second or Accessory Dwelling Unit or
selling the Property, except to the extent that the Second or Accessory Dwelling Unit is required
to be rented to Eligible Households; provided, however, 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, source of income (e.g., SSI), age, ancestry,
disability, or any other basis prohibited by the Fair Housing Act or the Fair Employment and
Housing Act in the leasing, transferring, use, occupancy, tenure, or enjoyment of the Second or
Accessory Dwelling Unit nor shall the 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 of the Second or
Accessory Dwelling Unit. The Owner has agreed to the obligations set forth in this Section in
consideration for the Incentive.
5.9 Relationship of Parties. Nothing contained in this Agreement shall be
deemed or construed by the Parties or any third party to create the relationship of principal and
agent or of partnership or of joint venture or of association. The relationship of the Parties is that
of an owner of real property and an administrator of a City inclusionary housing program;
furthermore, the Parties agree and acknowledge that this Agreement is in furtherance of the
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inherent power of City to regulate the use of land within City's jurisdiction. Owner further
acknowledges, understands and agrees that the City does not undertake or assume any
responsibility for or duty to Owner to select, review, inspect, supervise, pass judgment on, or
inform Owner of the quality, adequacy or suitability of the Second or Accessory Dwelling Unit
(or any other portion of the Property). The City owes no duty of care to protect Owner against
negligent, faulty, inadequate or defective building or construction or any condition of the
Property and Owner agrees that neither Owner, or Owner's heirs, successors or assigns shall ever
claim, have or assert any right or action against the City for any loss, damage or other matter
arising out of or resulting from any condition of the Property and will hold the City harmless
from any liability, loss or damage as set forth in Section 5.10. Any review by the City of any
documents submitted by the Owner to the City pursuant to this Agreement, including, but not
limited to any Tenant Lease Addendum, is solely to confirm compliance with the requirements
of this Agreement and shall not be deemed to be a representation of any kind of the validity or
legal enforceability of such document(s).
5.10 Hold Harmless; Indemnity. Owner shall indemnify, defend (with counsel
reasonably selected by the City), and hold harmless the City and its officers, officials, agents,
and employees against any and all liability, claims, actions, causes of action or demands
whatsoever against any of them, including any injury or death of any person or damage to
property or other liability of any nature, or any claims by a Tenant, a former Tenant or
prospective Tenant, arising out of Owner's performance of its obligations hereunder, except
where the cause of such is the gross negligence or willful misconduct of the City. The
indemnification obligations set forth in this Section shall survive any termination or expiration of
this Agreement.
5.11 Applicable Law and Venue. This Agreement shall be governed by
California law. Venue for any dispute arising out of this Agreement shall be San Diego County.
5.12 Attorneys' Fees and Costs. In the event any action or proceeding in court
or other dispute resolution mechanism permitted under this Agreement is commenced by either
party to interpret or enforce the terms of this Agreement, the prevailing Party therein shall be
entitled to recover from the non-prevailing Party all of the prevailing Party's reasonable costs and
expenses in connection therewith, including on any appeal and including expert witness fees,
document copying expenses, exhibit preparation costs, carrier expenses and postage and
communication expenses, and reasonable attorneys' fees and costs for the services rendered to
the prevailing Party in such action or proceeding (which shall include the reasonable costs for
services of the City's in-house counsel).
5.13 Mortgagee Protection. No lien created under this Agreement, nor any
breach of this Agreement, nor the enforcement of any provision hereof defeats or renders invalid
the rights of the mortgagee under any recorded mortgage upon the Property made in good faith
and for value. After a mortgagee or other person obtains title to the Property by judicial
foreclosure or by other means set forth in the mortgage, the Property shall remain subject to the
Agreement.
5.14 Time is of the Essence. In all matters under this Agreement, the Parties
agree that time is of the essence. References in this Agreement to days shall be to calendar days.
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If the last day of any period to give or reply to a notice, meet a deadline or undertake any other
action occurs on a day that is not a day of the week on which the City of Carlsbad is open to the
public for carrying on substantially all business functions (a "Business Day"), then the last day
for giving or replying to such notice, meeting such deadline or undertaking any such other action
shall be the next succeeding Business Day. In no event shall a Saturday or Sunday be considered
a Business Day.
5.15 Interpretation. The use in this Agreement of the words "including", "such
as" or words of similar import when used with reference to any general term, statement or matter
shall not be construed to limit such statement, term or matter to the specific statements, terms or
matters, unless language of limitation, such as "and limited to" or words of similar import are
used with reference thereto. The headings of this Agreement are for convenience only and do
not in any way limit or amplify the terms or provisions hereof. All pronouns and variations
thereof shall be deemed to refer to the masculine, feminine, or neuter, and to the singular or
plural, as the identity of the party or parties may require.
5.16 Government Standards. In the event any standard established and
maintained by any governmental agency which is necessary to give effect to this Agreement
ceases to exist, and no comparable replacement is issued, the Parties shall create a replacement
standard utilizing the formula and factors previously used to create the discontinued standard.
5.17 No Limitation on Municipal Powers. Nothing in this Agreement shall
limit, waive, or otherwise impair the authority and discretion of: (a) the City's Building
Department, in connection with the review and approval of any proposed construction plans for
the Property (or any change to such plans), or any use, or proposed use, of the Property; or (b)
any other office or department of the City acting in its capacity as a governmental regulatory
authority with jurisdiction over the development, use, or operation of the Property.
5.18 Counterparts. This Agreement may be executed in multiple originals,
each of which is deemed to be an original, and may be signed in counterparts, which shall
constitute one and the same agreement.
Remainder of Page Left Intentionally Blank
10
1010 \17\2059295.1(rev11/06/2019)
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the Effective Date.
CITY:
CITY OF CARLSBAD, a municipal corporation
By: rVO4
Name: C1-e-C'--E
Its: ASc,_--)\-411-1- C (Al) l'ACAVlacler
OWNER:
Print Name: Grace Alan Lee
(Signatures must be notarized)
1010 )17 \2059295.1(revl 1/06/2019)
MORGEN Fry
Notary Public - California
San Diego County
Commission # 226E605
My Comm. Expires Dec 24, 2022
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF S fl1jCi
On LI 1 Li 13, ao-DO , before me, 1\4 e\rt3eln Ftr
Notary Public, personally appeared 7,-CIC,70-4--‘ --pat-noe_ , who proved
to me on the basis of satisfactory evidence to be the person) whose name) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/hciltlitir authorized capacity-Eies), and that by his/her/their signaturets) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Name: Kiev- tyi,
Name: Notarvtublic
1010 \ 17 \2059295.1(revl 1/06/2019)
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
)
)
COUNTY OF 3 C\ 0 )
On , before me, S 4FI‘A
Notary Public, personally appeared p,\ cm') L. \AI ;no\ , who proved
to me on the basis of satisfactory evidence to be the person(s) whose nan/e(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
S. RUGGIERO
Notary Public — California
Orange County
Commission 4 2227447
My Comm. Expires Jan 31, 2022
Name: hc-e-A-b
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
)
)
COUNTY OF
On ten-A) , before me, S •
Notary Public, personally appeared & /& V\ utt., , who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
S. RUGGIERO
Notary Public — California
Orange County z
Commission 4 2227447
›.
My Ccmcn. Expir,as Jan 31. 2022
WITNESS my hand and official seal.
1111 A I 14
Name: 12.3 I I ve
,a)
Name: Notary Public
1010\17 \2059295.1(revl 1/06/2019)
EXHIBIT "A"
PARCEL ONE:
UNIT 56 (THE "UNIT"), AS SHOWN ON THE CONDOMINIUM PLAN ("PLAN") RECORDED ON JANUARY 17,
2020, AS INSTRUMENT NO. 2020-0028257, IN OFFICIAL RECORDS OF SAN DIEGO COUNTY, CALIFORNIA
("OFFICIAL RECORDS"), CONSISTING OF A PORTION OF LOT 2 OF CARLSBAD TRACT NO. 14-10,
POINSETTIA 61, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS PER
MAP NO. 16329 ("MAP"), FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON
FEBRUARY 27, 2019 AS FILE NO. 2019-7000078, OF OFFICIAL RECORDS OF SAN DIEGO COUNTY,
CALIFORNIA.
PARCEL TWO:
AN UNDIVIDED ONE-SIXTH (1/6) FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE
COMMON AREA DESCRIBED IN THE PLAN.
PARCEL THREE:
NONEXCLUSIVE EASEMENTS FOR ACCESS, DRAINAGE, SUPPORT, ENCROACHMENT, MAINTENANCE
AND REPAIR, AND FOR OTHER PURPOSES, ALL AS MAY BE SHOWN ON THE MAP AND AS DESCRIBED
IN THE DECLARATION, THE SUPPLEMENTAL DECLARATION AND THE SOLAR ENERGY DECLARATION.
Legal Description Exhibit A 195004-001343
TREVISO
EXHIBIT 'B'
SHEET 1 OF 1
SECONDARY OR ACCESSORY DWELLING UNIT - PHASE 5 (AISLE 'N')
0
•
•
• •
• •
•
•
•
•
•
SECONDARY
OR
ACCESSORY
DWELLING
UNIT
6692
ENCELIA
PLACE
44,
**1 •:•
4 1, .1
44;14 • • •:•
:•
.ctzttzgotztztatS
•
.**
Low•-•-*** 1•••••••••• '4 lip
I M
'VA
'4 I It IAMI AO"
&k•
K.* *
S.
r.
1:***
• (56)
PRIMARY UNIT
6690 ENCELIA PLACE
1=1.
• • • • • • • LEGEND
LOT LINE
CONDOMINIUM UNIT BOUNDARY
SECONDARY OR ACCESSORY
DWELLING UNIT AREA. 67•747. .7467. 476
NOTE PRIMARY UNIT AREA INCLUDES ALL
OTHER AREA EXCEPT SECONDARY
OR ACCESSORY DWELLING UNIT AREA.
SCALE: NOT TO SCALE
PREPARED: JAN. 14, 2020
TREWS°
MAP 16329 - UNIT 56
6690/6692 ENCELIA PLACE
CARLSBAD, CA 92011
NOTE
THIS DEPICTION IS FOR ILLUSTRATION
PURPOSES ONLY ACTUAL AS-BUILT
CONDIPON HILL CONTROL. REVISED: JAN. 14, 2020
EXHIBIT C
FORM OF OWNER CERTIFICATION
To: City of Carlsbad ("City")
From: [name of owner(s)] ("Owner(s)")
Address of Property: ("Property")
Date:
By signature below, I/we [insert name or names of Owner(s)] hereby
certify to the City, under penalty of perjury, that the Second or Accessory Dwelling Unit located
on the Property (the "Second or Accessory Dwelling Unit") is being utilized in accordance with
the "Agreement Containing Covenants and Restrictions Governing Rental of Affordable Second
or Accessory Dwelling Unit" (the "Agreement") recorded against the Property.
In accordance with Section 2.2 of the Agreement, I/we provide the following information
regarding the Second or Accessory Dwelling Unit:
1. Tenant name:
2. Size of Tenant's household:
3. Second or Accessory Dwelling Unit size (number of bedrooms):
4. Date Second or Accessory Dwelling Unit first occupied by
Tenant:
5. A copy of the Tenant's annual income certification is attached.
This Owner Certification is signed on , 20_, under penalty of perjury.
By:
Owner signature
Date:
Due Date: June 30 of each calendar year.
EXHIBIT D
FORM OF TENANT LEASE ADDENDUM
Affordable Secondary Dwelling Rental Addendum
Landlord:
Tenant:
Premises:
This is an addendum ("Addendum") to the Lease of the Premises between Landlord and Tenant.
This Addendum modifies the rental agreement between Landlord and Tenant (the "Lease"). If
there is a conflict between a provision in the Lease and a provision in this Addendum, this
Addendum shall control.
1. Affordability Agreement. The Premises are part of a property that is subject to
an Agreement Containing Covenants and Restrictions Governing Rental of Affordable Second
or Accessory Dwelling Unit ("Affordability Agreement") with the City of Carlsbad ("City").
The Affordability Agreement requires that Landlord rent the Premises to Eligible Households
and that both Landlord and Tenant comply with the Affordability Agreement. By initialing
below, Tenant acknowledges receiving a copy of the Affordability Agreement. Tenant also
acknowledges being given the opportunity to review the Affordability Agreement and consult
with necessary advisors regarding Tenant's obligations.
I confirm that I have received a copy and read the Affordability Agreement. I understand my
obligations.
Tenant Initials:
2. Obligations Under the Affordability Agreement Confirmed.
• Rental to Eligible Households/Initial Lease Term. The Affordability
Agreement requires that Landlord only rent the Premises to "Eligible Households" which are
defined as "Low Income Households". Tenant confirms that Tenant is an Eligible Household.
The initial Lease term is one (1) year.
• Income Verification. Tenant has provided Landlord with one of the
following for Landlord's use in documenting Tenant's qualification as an Eligible Household:
(1) pay stub for the most recent pay period;
(2) income tax return for the most recent tax year;
(3) income verification form from the applicant's current employer;
(4) income verification form from the Social Security Administration and/or the
California Department of Social Services if the applicant receives assistance from
either of such agencies; or
(5) if the applicant is unemployed and has no such tax return, another form of
independent verification.
Tenant understands that Owner is required to provide a copy of Tenant's income qualifications
to the City on the City's request. Tenant consents to Owner sharing with the City all
information provided by Tenant to Owner. If Tenant's income subsequently increases so that
Tenant no longer qualifies as a Low Income Household, Tenant shall continue to be considered
an Eligible Household allowed to occupy the Premises.
Tenant understands that Owner is obligated to certify to the City that Owner is in compliance
with the Affordability Agreement. Owner must provide a certification to the City each year no
later than June 30th. Tenant agrees to provide Owner with income documentation each year as
required by the City so that Owner can comply with this requirement.
• Maximum Allowable Rent. The Affordability Agreement establishes a
maximum limit on the amount of rent that may be charged. Rent for the Premises shall not
exceed Affordable Rent even if Tenant's income increases so that Tenant is no longer a Low
Income Household. Rent may not be raised more often than once every twelve (12) months. Owner
must provide Tenant with at least sixty (60) days written notice of any increase in Rent. Any Rent
increase shall not exceed the Maximum Allowable Rent. Landlord is entitled to require Tenant to provide
Landlord with a security deposit in an amount not to exceed two (2) months' Rent.
• Occupancy Restriction. The Premises must not be used for any of the
following: (i) any sublease, except to an Eligible Household, with the prior written approval of
Landlord; (ii) as a "short-term vacation rental" (as such temi is defined in Chapter 5.60 of the
City of Carlsbad Municipal Code, as may be amended from time to time); and (iii) for tourist or
transient use, or any other short-term rental. In addition, the Premises must not be listed on any
"hosting platfoliii" (as defined in California Business & Professions Code 22590, as may be
amended from time to time), including, but not limited to any Internet-based "hosting platform",
such as "airbnb.com", or any similar service.
• City Inspection. Tenant agrees to make the Premises available for inspection
by the Owner and the City during regular business hours upon seventy-two (72) hours' written
notice; provided, however, that any inspection by the City shall occur only once during any
twelve (12) calendar month period unless the City receives a complaint that a Tenant is
occupying the Premises in violation of the Affordability Agreement. The City has a right of
entry to enter the Premises for the purposes of such inspection and may do so without the Owner
present.
3. Breach of Lease. A violation of this Addendum is a breach of the Lease.
The Lease, as modified by this Addendum, is ratified by Landlord and Tenant.
LANDLORD
Sign: Print:
Date:
TENANT
Sign: Print:
Date:
TENANT:
Sign: Print:
Date: