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HomeMy WebLinkAboutCT 14-01; State & Oak Carlsbad LLC; 2020-0314753; Affordable Housing-Regulatory Agreement & Dec. of Restrictive CovenantsRECORDING REQUESTED BY f AND WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office Attn. City Clerk 1200 Carlsbad Village Drive Carlsbad, CA 92008 No fee for recording pursuant to Government Code Section 27383 And Government Code Section 27388.1 DOC# 2020-0314 753 111111111111 lllll 111111111111111111111111111111 IIIII IIIII IIIII IIII IIII Jun 17, 2020 03:52 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr , SAN DIEGO COUNTY RECORDER FEES $0 00 (SB2 Atkins $0 00) PCOR. N/A PAGES 17 (Space above for Recorder's Use) REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS This Regulatory Agreement and Declaration of Restrictive Covenants ("Agreement") is made and entered into as of this r:2 4, day of~, 2020, by and between the City of Carlsbad, a chartered municipal corporation ("City"), and State & Oak Carlsbad, LLC, a Delaware Limited Liability Company ("Developer"). RECITALS 1. City and Developer have entered into that certain Affordable Housing Agreement Imposing Restrictions on Real Property ("Affordable Housing Agreement") dated July 20, 2018, which was recorded on Nov. 29, 2018, in the Official Records of San Diego County as Document No. 2018-0492715. The Affordable Housing Agreement set forth the affordable housing requirements for the State and Oak Project (Project No. CT 14-01 ), 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 ("Property"). 2. Developer intends to develop twenty-seven (27) units within the State and Oak Project consisting of thirteen (13) timeshare units and fourteen (14) residential units. Two (2) of the residential units will be restricted to and affordable to low-income households ("Low Income Units"). The low-income units will be developed to meet the inclusionary housing requirement of the State and Oak Project as required by the Affordable Housing Agreement. 3. In accordance with the requirements of the Affordable Housing Agreement, Developer is obligated to enter into this Agreement, for the benefit of the city, and to observe all the terms and conditions set forth below. 4. In order to ensure that the entire Project will be used and operated in accordance with these conditions and restrictions, City and Developer wish to enter into this Agreement. THEREFORE, City and Developer hereby agree as follows: CA 2/5/13 ARTICLE 1 -DEFINITIONS 1.1 Definitions. When used in this Agreement, the following terms shall have the respective meanings assigned to them in Article 1. (a) "Agreement" shall mean this Regulatory Agreement and Declaration of Restrictive Covenants. (b) "City" shall mean the City of Carlsbad, a chartered municipal corporation. (c) "Developer" shall mean State & Oak Carlsbad, LLC, a Delaware Limited Liability Company and its successors in interest to the Development. ( d) "Development" shall mean the Property and the twenty-seven (27) 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, City shall provide Developer with a reasonably similar method of calculation of gross income as provided in said Section 6914. (f) "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, and published by HCD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, City shall provide Developer with other income determinations that are reasonably similar with respect to methods of calculation to those previously published by HCD. 2 CA 2/5/13 (k) "Ordinance" shall mean the City's inclusionary housing ordinance, set forth in Chapter 21.85 of the City's municipal code, as such may be amended, or replaced, from time to time. (1) "Project" shall mean the State and Oak Project and the twenty-seven (27) dwelling units to be constructed on the Property, as well as all other improvements, landscaping, and parking spaces existing thereon, as the same from time to time may exist. (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 Low Income Unit for the following: use and occupancy of the Low Income Unit and land and associated facilities, including parking; any separately charged fees or service charges assessed by Developer 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 Developer, and paid by the tenant. (o) "Term" shall mean the period of time beginning on the date of recordation of this Agreement and ending fifty-five (55) years after the final inspection approval for the project. ARTICLE 2 -AFFORDABILITY COVENANTS 2.1 Occupancy 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 seventy percent (70%) of Median Income as determined by the City of Carlsbad, and adjusted for household size. The monthly Rent charged the occupants of the Market Rate Units shall be established by Developer. (b) Subject to Section 2.3 below, in calculating the allowable Rent for all Low- Income Units, the following assumed household sizes shall be utilized: Number of Bedrooms Assumed Household Size Three 4 2.3 Increased Income of Occupying Households. In the event, upon annual recertification of an occupant household's income, Developer 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. 3 CA 2/5/13 In the event, upon annual recertification of an occupant household's income, Developer 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 Developer 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 re-determined. 2.4 Lease Provisions. Developer shall include in leases for all Low-Income Units provisions which authorize Developer 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 recertification 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. 2.5 Section 8 Voucher Holders. For the Low-Income Units, Developer will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal vouchers for rent subsidies pursuant to the existing housing subsidy program under Section 8 of the United States Housing Act, or its successor. Developer shall not apply selection criteria to Section 8 voucher holders that are more burdensome than criteria applied to all other prospective tenants, nor shall Developer apply or permit the application of management policies or lease provisions with respect to the Development which has the effect of precluding occupancy of Low- Income Units by such prospective tenants. 2.6 Condominium Conversion. Developer shall not convert Development Low Income 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. Developer will obtain, complete and maintain on file, immediately prior to initial occupancy and annually thereafter, income certifications from each Low Income Household. Developer 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 periods; (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 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 City upon written request. 4 CA 2/5/13 3.2 Annual Report to City. Each year Developer shall submit an annual report to City, in a form approved by 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 City may be required by law to obtain. 3.3 Additional Information. Beginning the first June pt after the final Certificate of Occupancy for the Development, Developer shall provide any additional information regarding the Low-Income Units and Developer's obligations under this Agreement that is reasonably requested by City. Upon five (5) days prior written request and during regular business hours, City shall have the right to examine and make copies of all books, records or other documents of Developer that pertain to any Unit. 3 .4 Records. Developer shall maintain complete, accurate and current records pertaining to the Low-Income Units, and, upon five (5) days prior written request by City, shall permit any duly authorized representative of City to inspect records, including records pertaining to income and household size of tenant households. ARTICLE 4 -OPERATION OF THE DEVELOPMENT 4.1 Mixed Timeshare and Residential Use. The Development shall be operated with a mix of timeshare and residential uses. None of the fourteen (14) residential units within the Development, including the two (2) Low Income Units, shall be operated as transient housing. 4.2 Compliance with Affordable Housing Agreement and Applicable Laws. Developer shall comply with all the terms and provisions of the Affordable Housing Agreement to the extent applicable to the Property, the Ordinance and all applicable local, state and federal laws and regulations governing the ownership, use and occupancy of the Project (whether existing as of the date of this Agreement or later enacted). 4.3 Taxes and Assessments. Developer shall pay, or cause to be paid, 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 Developer shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event Developer exercises its right to contest any tax, assessment, or charge against it, Developer, 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. 4.4 Nondiscrimination. All of the Low Income Units shall be available for occupancy on a continuous basis to members of the general public who qualify as a Low Income Household. Developer shall not give preference to any particular class or group of persons in renting the Low Income Units, except to the extent that the Low Income Units are required to be leased to Low Income Households 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, 5 CA 2/5/13 national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall Developer or any person claiming under or through Developer, 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, sub lessees, 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 Developer as to the Low Income Units or the Development or portion thereof, shall contain covenants concerning discrimination as prescribed by the Affordable Housing Agreement. ARTICLE 5 -PROPERTY MANAGEMENT AND MAINTENANCE 5.1 Management Responsibilities. Developer 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. City shall have no responsibility for management of the Development. Developer shall retain the Management Agent ( defined below) approved by City in its reasonable discretion to perform its management duties hereunder unless Developer demonstrates to City that it has the capacity to self-manage the Project and receives written approval from the City for self- management. 5 .2 Management Agent; Periodic Reports. The Development shall at all times be managed by an experienced management agent acceptable to and approved by City, with demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing ("Management Agent"). Prior to the first occupancy permit for any building within the Development, Developer shall submit for City's approval the identity of any proposed Management Agent. Developer shall also submit such additional information about the background, experience and financial condition of any proposed Management Agent as is reasonably necessary for 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 as set forth above, City shall approve the proposed Management Agent by notifying Developer in writing. Unless the proposed Management Agent is disapproved by City within thirty (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, Elevate SD is approved by City as the Managing Agent for the Development. 5.3 Performance Review. City reserves the right, upon five (5) business days prior written notice, to conduct an annual, or more frequent review of the management practices and financial status of the Development if deemed necessary by City. The purpose of each periodic review will be to enable City to determine if the Development is being operated and managed in accordance with the requirements and standards of this Agreement. Developer shall cooperate with City in such reviews. 5.4 Replacement of Management Agent. If, as a result of a periodic review, 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, City shall 6 CA 2/5/13 deliver written notice to Developer of its intention to cause replacement of the Management Agent, including the reasons therefore. Within fifteen (15) days of receipt by Developer of such written notice, City staff and Developer 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, Developer 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 City pursuant to Section 5.2 above. Any contract for the operation or management of the Development entered into by Developer 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 a default under this Agreement, and City may enforce this provision through legal proceedings as specified in Section 6.3. 5.5 Approval of Management Policies. Developer shall submit its written management policies with respect to the Development to 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 Property Maintenance. Developer agrees, for the entire term of this Agreement, to use commercially reasonable efforts to maintain all interior and exterior improvements, including common area 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. Normal wear and tear of the Development will be acceptable to City assuming Developer agrees to provide all necessary improvements to assure the Development is maintained in good condition. Developer shall make all repairs and replacements necessary to keep the improvements in good condition and repair. In the event that Developer 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 City with respect to graffiti, debris, waste material, and any other matter posing a material and imminent threat to the health and safety of the tenants, or thirty (30) days after City has notified Developer in writing of the default or, if the default cannot be remedied within thirty (30) days, the Developer fails to commence to cure such default within thirty (30) days and thereafter diligently pursue such cure to completion as soon as reasonably possible, but in no event to exceed one hundred twenty (120) days without the prior written approval of the City (which shall not be unreasonably withheld, conditioned, or delayed), with respect to general maintenance, landscaping and building improvements (and subject to any stricter requirements included in any applicable City Ordinance), then City, in addition to whatever other remedy it may have at law or in equity, shall have the right to enter upon the Property ( or any portion thereof), following at least forty-eight 7 CA 2/5/13 ( 48) hours' prior written notice to Developer, and perform or cause to be performed all such acts and work reasonably necessary to cure the default. By execution of this Agreement, Developer hereby grants to the City, and the City's employees and agents, during the Term, a right of entry for such purpose. Pursuant to such right of entry, City shall be permitted (but is not required) to enter upon the Property and perform all acts and work reasonably necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to demand reimbursement from Developer, in the amount of the reasonable expenditures arising from such acts and work of protection, maintenance, and preservation by City and/or costs of such cure, including an administrative charge equal to ten percent ( 10%) of such expenditures, which amount shall be promptly paid by Developer to City upon written demand. City shall indemnify and hold Developer harmless from and against any claims, loss, costs, causes of action, liability, damage, or injury of any kind arising from or relating to any entry onto or work performed on the Property by the City or City's employees, agents, representatives, or contractors pursuant to this Section. 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 Developer, whether a change in interest occurs voluntarily or involuntarily, by operation oflaw or otherwise, except as expressly released by City in writing. 6.2 Covenants to Run With the Land. City and Developer 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 City expressly releases such conveyed portion of the Property from the requirements of this Agreement. 6.3 Enforcement by City. If Developer fails to perform any obligation under this Agreement and fails to cure the default within 30 days after City has notified Developer in writing of the default or if the default cannot be cured within 30 days, fails to commence to cure within 30 days and thereafter diligently pursue such cure to completion within ninety (90) days, 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 to Compel Performance or for Damages. City may bring an action at law or in equity to compel Developer's performance of its obligations under this Agreement, and/or for damages. Developer acknowledges that any breach in Developer's performance of Developer'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, Developer agrees that the City is entitled to equitable relief in the form of specific performance 8 CA 2/5/13 and that an award of damages is not adequate to compensate the City for Developer's failure to perform according to the terms of this Agreement. (b) Remedies Provided Under Affordable Housing Agreement. City may exercise any other remedy provided under the Affordable Housing Agreement, or otherwise available under the Ordinance. 6.4 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 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 attorney's 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 and any third-party counsel retained by the City). 6.5 Recording and Filing. City and Developer 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 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue for any dispute arising out of this Agreement shall be San Diego County. 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 CITY OF CARLSBAD: CITY OF CARLSBAD Housing Services Division Attn: Housing Services Manager 1200 Carlsbad Village Drive Carlsbad, California 92008-1949 TO THE DEVELOPER: STATE AND OAK CARLSBAD LLC C/O N4FL Worldwide 9 CA 2/5/13 6006 El Tordo, First Floor, P.O. Box 7295 Rancho Santa Fe, CA 92067 6.9 Entire Agreement. The Recitals set forth above, and all exhibits attached hereto, are hereby incorporated into this Agreement by this reference. This Agreement, in conjunction with the Affordable Housing 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. 6.10 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 6.11 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 and developer of real property and an administrator of a municipal inclusionary housing program; furthermore, the parties agree and acknowledge that this Agreement is in furtherance of the inherent power of City to regulate the use of land within City's jurisdiction. Developer further acknowledges, understands and agrees that the City does not undertake or assume any responsibility for or duty to Developer to select, review, inspect, supervise, pass judgment on, or inform Developer of the quality, adequacy or suitability of the Units ( or any other portion of the Property). The City owes no duty of care to protect Developer against negligent, faulty, inadequate or defective building or construction or any condition of the Property and Developer agrees that neither Developer, or Developer'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 below, unless any such loss, liability, damage, or injury arises from the actions or omissions of the City or any of the City's-elected officials, employees, contractors or representatives. Any review by the City of any documents submitted by the Developer to the City pursuant to this Agreement, including, but not limited to the form of any tenant lease, 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, business advantage, or legal enforceability of such document(s). 6.12 Hold Harmless: Indemnity. In addition to any obligations set forth in the Affordable Housing Agreement, Developer shall indemnify, defend (with counsel reasonably selected by the City), and hold harmless the City and its councilmembers, officers, officials, agents, and employees against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including: (i) any injury or death of any person or damage to property or other liability of any nature; (ii) any claims arising out of Developer's performance or 10 CA 2/5/13 non-performance of its obligations hereunder; or (iii) otherwise related to Developer's ownership or operation of the Property, 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. 6.13 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. 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. 6.14 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. 6.15 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. 6.16 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. 6.17 State Law Requirements. (a) Enforcements by Certain Third Parties. Pursuant to Health and Safety Code Section 33334.3(f)(7) a default under this Agreement, including the rental of a Unit by the Developer to a household not eligible under this Agreement, may be enforceable by the City, a residents' association, a resident of another affordable unit, a former resident of a Unit, a person on an affordable housing waiting list, and others who are listed in any applicable state law. The Parties agree and acknowledge that such rights shall only exist during such time that the Property is subject to the requirements of Health and Safety Code Section 33334.3(f)(7), or any successor statute. (b) Developer Obligations Prior to Expiration of Term. At least six ( 6) months prior to the expiration of the Term, Developer shall provide by first-class mail, postage 11 CA 2/5/13 prepaid, a notice to all tenants in the Low Income Units containing: (i) the anticipated date of the expiration of the Term; (ii) any anticipated Rent increase upon the expiration of the Term; (iii) a statement that a copy of such notice will be sent to the City; and (iv) a statement that a public hearing may be held by the City on the issue and that the Tenant will receive notice of the hearing at least fifteen (15) days in advance of any such hearing. Developer shall also file a copy of the above-described notice with the City's Department of Housing and Neighborhood Services. In addition, Developer shall comply with the requirements set forth in California Government Code Sections 65 863 .10 and 65863 .11, to the extent applicable. Nothing in this subsection shall be deemed to waive, limit, or otherwise impair the Developer's obligation to comply with Section 21.85 .155 of the Ordinance. 6.18 Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be executed in counterparts, which shall constitute one and the same agreement. 12 CA 2/5/13 EXHIBIT A Legal Property Description Lot 1 of City of Carlsbad Tract No. 14-01 State Mix Use 30, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 16293, filed in the office of the County Recorder September 7, 2018. APN: 203-297-10-00 A-1 IN WITNESS WHEREOF, City and Developer have executed this Agreement by duly authorized representatives, all on the date first written above. DEVELOPER ST A TE & OAK CARLSBAD, LLC, a ;.,-::: ... ·~bility Company By: ---U-~~~~~--- Print Name mU:Ktw Cro c~ Title XV\G..h.~'f Date: bS / oJ / 20 2,0 By:___________ APPROVED AS TO FORM: Print Name_________ CELIA A. BREWER, CITY ATTORNEY Title ----------- Date: ------------ PLEASE SEE ATTACHED CALIFORNIA / JURAT JACKNOWLEDGEMENT By:Jgfe~ (¾ Assistant City Attorp.ey-) Date: 5/r~ l')d~ r I 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 must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer( s) signing to bind the corporation. 13 CA 2/5/13 ACKNOWLEDGMENT 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 C\. Y'\ D I ~ D·) before me, Arezou Razmazma, Notary Public (insert name and title of the officer) personally appeared --1'------------=---.=....:----"____,'-----------L...S--L._:__ _ ____.,c--7"~~-----\__,__....,___.,___-=----------=-~ who prove.ct to me on the basis of satisfactory evidence to be the person ose name~re subscribed to the within instrument and ac nowledged to m·e that he/she/they executed the same in· · his/her/theiS-9uthorized capacity(ie , . nd that by l!l§,/her/their signature(s) on the instrument the person(~or the entity upo11 behalf of which the person(s.}'cfctect, executed the instrument. l certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) I IN WITNESS WHEREOF, City and Developer have executed this Agreement by duly authorized representatives, all on the date first written above. DEVELOPER STATE & OAK CARLSBAD, LLC, Delaware Limited Liability Company Print Name Title Print N e Tit te: ------~--- ---------- ------------ CITY CITY OF CARLSBAD, a chartered municipal corporatu_cxv By:"\._~ :=- Jeff Murphy, Director Community Development Department Date: SJ?~/21 o --7'---+-1 -------- APPROVED AS TO FORM: CELIA A. BREWER, CITY ATTO By: --------------Ron emp sistant City Attorney ate: ------------ 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 must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. 13 CA 2/5/13 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 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 7\ ) County of ..J()...J1 Vi' ej o ) Di arie On Jv1Ay,__,z ( ;2 a;N,1 before me, /vi /c:Jie,/e_,, ·-r--/tl.rj_v, /VD fa.,y '7lu_'-,/,·~ Date -r Here Insert Name 6.nd Title of the Officer personally appeared _____ v--=---1...R._ry_,_'L __ · _.J__,J---=u---=---.,FJt:1----'-A-=-¥----------------- N:mie(s) of Signer(s) 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. • MICHELE DIANE HARDY l /:!h:.~~r:;\ COMM. #2222917 : NOTARY PUBLIC-CALIFORNIA ~ no sac seas nos SAN DIEGO COUNTY My Comm. Eicpires Novembel 23, 2021 Place Notary Sea/ Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ---------------OPTIONAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended 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(s) Signer's Name: ___________ _ Signer's Name: ____________ _ □ Corporate Officer -Title(s): ______ _ □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □Other: ______________ _ □ Other: ______________ _ Signer Is Representing: ________ _ Signer Is Representing: ________ _ • ©2016 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907