HomeMy WebLinkAboutRP 16-05; Carlsbad Village Partners, L.P; 2021-0595517; Affordable Housing-Regulatory Agreement & Dec. of Restrictive CovenantsRECORDING REQUESTED BY
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# 2021-0595517
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Aug 20, 2021 02:49 PM
OFFICIAL RECORDS
Ernest J. Oronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (S82 Atkins: $0.00)
PCOR NIA
PAGES: 16
(Space above for Recorder's Use)
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(DEV16-014)
This Regulatory Agreement ap.d Declaration of Restrictive Covenants ("Agreement") is
made and entered into as of this /IJ-fllday of August, 2021, by and between the City of Carlsbad,
a chartered municipal corporation ("City"), and Carlsbad Village Partners, L.P. ("Developer").
RECITALS
1. City and Developer have entered into that certain Affordable Housing and
Density Bonus Agreement Imposing Restrictions on Real Property ("Affordable Housing
Agreement") dated September 20, 2017, which was recorded on September 28, 2017, in the
Official Records of San Diego County as Document No. 2017-04461 15. The Affordable Housing
Agreement set forth the affordable housing requirements for the Carlsbad Village Lofts Project
("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 ("Property").
2. Developer intends to construct a total of l 06 residential for-rent units within the
Project, including three (3) lofts ranging in size from 562 to 597 square feet, eleven (l 1) one-
bedroom units ranging in size from 571 to 708 square feet, and two (2) three-bedroom units at
l, 199 square feet, for a total of sixteen (16) units which will be restricted to and affordable to
low-income households ("Low Income Units"). The Low Jncome Units will be developed to meet
the inclusionary housing requirement of the Project as required by the Affordable Housing
Agreement, the City's Inclusionary Housing Ordinance (Carlsbad Municipal Code, Chapter
21.85) and the Residential Density Bonus Ordinance (Carlsbad Municipal Code, Chapter 21.86)
("Ordinance").
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:
ARTICLE I -DEFINITIONS
1. 1 Definitions. When used in this Agreement, the following tenns shall have the
respective meanings assigned to them in Article 1.
(a) "Agreement" shall mean this Regulatory Agreement and Declaration of
Restrictive Covenants.
(b) "Area Median Income" shall mean the median gross yearly income adjusted for
actual household size, in the San Diego-Carlsbad, CA Metropolitan Statistical Area, as published
from time to time by the U.S. Department of Housing and Urban Development ("HUD"), and
published by HCD. In the event that such income detenninations are no longer published, or are
not updated for a period of at least eighteen ( 18) months, City shall provide Developer with other
income detenninations that are reasonably similar with respect to methods of calculation to those
previously published by HCD.
(c) "City" shall mean the City of Carlsbad, a chartered municipal corporation.
(d) "Developer" shall mean Carlsbad Village Partners, L.P. and its successors in
interest to the Development.
(e) "Development" shall mean the real property subject to, and all residential units
developed pursuant to, the Affordable Housing Agreement.
(f) "Gross Income" shall mean the total anticipated annual income of all persons in a
household, as calculated in accordance w ith 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.
(g) "HCD" shall mean the California Department of Housing and Community
Development.
(h) "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.
(i) "Low Income Units" shall mean the units limited to occupancy by Low Income
Households pursuant to Section 2.1 below.
G) "Market Rate Unit" shall mean the units limited to occupancy by non-low Income
eligible Households, pursuant to Section 2.1 below.
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(k) "Ordinance" shall mean the City's Inclusionary Housing Ordinance and the City's
Residential Density Bonus Ordinance, set forth in Chapters 21.85 and 21.86 of the Carlsbad
Municipal Code, respectively, as such may be amended, or replaced, from time to time.
(I) "Project" shall mean the Carlsbad Village Lofts Project (Major Review Permit
No. RP 16-05 and Minor Subdivision Permit MS 16-06) and the 106 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 sixty percent (60%) of Area Median Income as
determined by the City, 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:
Unit Size
Loft
One bedroom
Three bedroom
Assumed Household Size
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2
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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
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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 Low Income 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,
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 Low Income Unit shall be considered a Market Rate Unit, and the Rent may be
increased to the levels charged to a Market Rate Unit, and the Developer shall rent the next
available residential 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 tirrie the character of the
unit shall be redetermined.
2.4 Lease Provisions. Subject to applicable federal, state and local regulations,
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 (50 Stat. 888) ("Section 8"), 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 the Development's 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. I 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: (I) 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
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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.
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 Low Income Unit
covered by this Agreement, the Rent, and the income and household size of the household
occupying the Low Income Unit. The report shall also state the date the tenancy commenced for
each rental Low Income Unit and such other information as City may be required by law to
obtain.
3.3 Additional Jnfonnation. Beginning the first June 1st following the issuance of the
final Certificate of Occupancy for the Development, Developer shall maintain complete, accurate
and current records pertaining to the Low Income Units, and 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 Low Income Unit, including records pertaining
to income and household size of tenant households.
ARTICLE 4 -OPERATION OF THE DEVELOPMENT
4.1 Mixed Commercial and Residential Use. The Development shall be operated with
a mix of commercial and residential uses. None of the I 06 residential units within the
Development, including the 16 Low Income Units, shall be operated or offered to tenants 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). In the instance of an inconsistency or
conflict between this Agreement and the Ordinance and applicable laws and regulations, the
Ordinance and applicable local, state and federal laws and regulations take precedence. In such
an instance, violation of any tenn or provision of this Agreement shall not constitute a breach of
this Agreement.
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 tax.es assessed against the Project, or payable by Developer,
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 detennination of the
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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, national origin, or ancestry, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of any Low Income 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 Low Income 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 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 (as 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 ~acilities like the Development in a manner that will
provide decent, safe, and sanitary housing ("Management Agent"). Prior to the issuance first
Certificate of Occupancy 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, R&V
Management is approved by City as the Managing Agent for the Development.
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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
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 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, local, 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.
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ln 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 (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 (I 0%) 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 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 Right of First Refusal to Purchase Development. The City shall have the right of
first refusal to purchase the Development if the Low Income Units are offered for sale at the end
of the Term. The right of first refusal to purchase the Development shall be submitted in writing
to the City. Within ninety (90) days of its receipt, the City shall indicate in writing its intent to
exercise the right of first refusal. If the City does not submit written commitment to the
Developer within ninety (90) days, the City is deemed to have waived its right of first refusal.
6.3 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
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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.
6.4 Enforcement by City. If Developer fails to perform any obligation under this
Agreement and fails to cure the default within thirty (30) days after City has notified Developer
in writing of the default, or if the default cannot be cured within thirty (30) days and Developer
fails to commence cure within thirty (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 Perfonnance 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 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.
6.5 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 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 and any third-party counsel retained by the City).
6.6 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.
6.7 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.
6.8 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.
6.9 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
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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 and Homeless Services Department
Attn: Housing and Homeless Services Director
1200 Carlsbad Village Drive
Carlsbad, California 92008-1949
TO THE DEVELOPER:
R& V Management
Attn: Gerry Ranglas and Scott Dale
3444 Camino Del Rio North #202
San Diego, California 92108
6.10 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 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.
6.11 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.
6.12 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 Low Income 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).
6.13 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 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 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, Sunday or federal holiday 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.
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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 Low
Income 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 Low Income Unit, a person on an affordable housing waiting list, and others who
are listed in any applicab'le 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 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
65863.10 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 2 1.85.155 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
IN WITNESS WHEREOF, City and Developer have executed this Agreement by duly
authorized representatives, all on the date first written above.
DEVELOPER
CARLSBAD VILLAGE PARTNE S, L.P.
By:_ .. ··'
Print Name b . -=--____.,......_ __ :__:_;_ _ __::..!._
Title C € 0
Date: 8-5-2-l
By:(~~ . .............,,
PrintName SCQTT DAL£:
Title ~'\<.E:C~ l DE ~T
Date: 8 -S -2-\
CITY
CITY OF CARLSBAD, a chartered municipal
corporation
By: dJv2 v L--__
Geoff Patnoe
Assistant City Manager
Date: ------------
APPROVED AS TO FORM:
CELIA A. B:m• CITY ATTORNEY By:OQi~
Ron Kemp
Assistant City Attorney
Date: -~-----t~IO-+->{a2....__.\,____ __ _
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
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.
STA TE OF CALIFORNIA
COUNTY OF __ S_a_n_D_i_e-g_o __
)
)
)
On August 5, 2021 , before me, Lesli Palmer , Notary Public,
personally appeared G.A. Ranglas and Scott Dale , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) ~are subscribed to the within
instrument and acknowledged to me that a@/shei'they executed the same in bisthe!'{their
authorized capacity(ies), and that by )qisther:/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.
hand and official seal.
LESLI PALMER
Motary Public • Callfomla
San Diego County t
Commission # 2309925
•, ,.,~ My Comm. Expires Oct 21, 2023
Notary Public
Name:
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 . San Diego
before me, Morgen Fry, Notary Public
(insert name and title of the officer)
personally appeared bf-e.b{.f: PAfhoe_, . . . ,
who proved to me on the basis of satisfactory evidence to be the person(\) whose name('s.) is/ate
subscribed to the within instrument and acknowledged to me that he/she{they executed th,e same in
his/her/their authorized capacity~). and. that by his/herftheir signature~ on the instrument the
person~. or the entity upon behalf of which the person~) acted, executed the instrument.
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. ~-···········~ , , MO~CiEN flff : e.• · •. Noury ,ub,llc • ~allfernfa " · ~ • ..-1 · San .Di~ Ceunty !; ~ ~ .. Commission I 2261,05 -
.... ., • /oly Cemm, Ex_-ire1 ~ 2~,.2022
Signature
EXHIBIT A
Legal Property Description
ALL THAT PORTION OF TRACT 117 OF CARLSBAD LANDS, IN THE CITY OF
CARLSBAD, IN THE COUNTY OF SAN DIEGO, ST A TE OF CALIFORNIA, ACCORDING
TO THE MAP THEREOF NO. 1661, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, MARCH 1, 1915.
A-1