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HomeMy WebLinkAboutOrdinance #3962 ORDINANCE NO. 3962 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH ADOPTING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF HUNTINGTON BEACH AND ARCHSTONE HUNTINGTON BEACH COLLEGE PARK LLC (DEVELOPER) (DEVELOPMENT AGREEMENT NO. 12-003) WHEREAS, the City Council approved Conditional Use Permit No. 07-043 to develop an approximately 3.8-acre property located at 7400 Center Avenue (Property)with 385 apartment units, including live work units, with a leasing office, and private and public recreation and open space areas (Project) pursuant to the City of Huntington Beach Zoning and Subdivision Ordinance; and The City and Developer each mutually desire to enter into a Development Agreement with one another to permit and ensure that the Property is developed in accordance with the approved Conditional Use Permit No. 07-043 and the City's zoning regulations to achieve the mutually beneficial development of the Property. NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. That the City Council hereby finds that Development Agreement No. 12- 003 conforms to Government Code Section 65864 et. seq. and that: a. Development Agreement No. 12-003 is consistent with the Huntington Beach General Plan; and b. Development Agreement No. 12-003 is consistent with Chapter 246 of the Huntington Beach Zoning and Subdivision Ordinance(HBZSO) and the Huntington Beach Municipal Code; and C. Development Agreement No. 12-003 will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of the property because it is consistent with applicable land use regulations of the zoning regulations in effect at the time of project approval, mitigation measures adopted for the Project in accordance with EIR No. 07-004, and conditions approved for Conditional Use Permit No. 07-043; and d. The City Council has considered the fiscal effect of Development Agreement No. 12-003 on the City and the effect on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. 12-3446/84269 1 Ordinance No. 3962 SECTION 2. Based on the above findings, the City Council of the City of Huntington Beach hereby approves Development Agreement No. 12-003 and adopts it by this ordinance pursuant to Government Code Section 65867.5. This action is subject to a referendum. SECTION 3. This ordinance shall take effect 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 5 t h day of November , 2012. c� Mayor ATTEST: APPROVED AS TO FORM: Ci Clerk Jityy A orney (1/11/— q REVIEWED AND APPROVED: INITIATED AND APPROVED: i Cite;P d ger Director of Planning and Building Exhibit A: Development Agreement No. 12-003 12-3446/84269 2 This Document was electronically recorded by City of Huntington Beach Recorded in Official Records, Orange County RECORDING REQUESTED BY Tom Daly,Clerk-Recorder AND WHEN RECORDED MAIL TO: CITY OF HUNTINGTON BEACH II ICI II II III II ��� III III IIN® FEE 2000 Main Street 65 404 Al2 21 2012000632651 10:29am 10/17/12 Huntington Beach, CA 92648 0.00 0.00 0.00 0.00 60.00 0.00 0.00 0.00 Attention: Director of Planning and Building This dwiment Is solely ftr ft CSCW (Space Above For Recorder's Use) business of the City of e Reach.as contem GovemffMt Coda S.6103 Wd shouts b9 McWdetl im Of d=90- DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made in Orange County, California, as of 0=,6,L� ,/,d-, 2012, by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California(the "City") and ARCHSTONE HUNTINGTON BEACH COLLEGE PARK LLC, a Colorado limited liability company(the "Property Owner"). RECITALS : A. The City is authorized pursuant to Government Code sections 65864 through 65869.5 and Huntington Beach Zoning and Subdivision Ordinance (HBZSO) Chapter 246 to enter into binding development agreements with persons or entities owning legal interests in real property located within the City. B. Property Owner is the owner of that certain real property more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"). C. The City and the Property Owner each desire to enter into this Agreement affecting the Property in conformance with Government Code section 65864 et seq. and HBZSO 246 in order to achieve the mutually beneficial development of the Property in accordance with this Agreement. D. The Property Owner seeks to develop a project on the Property consisting of up to 385 dwelling units and live work units, 10,000 square feet of square feet of commercial uses, as more particularly set forth in the Development Plan (collectively, the "Project"), attached as Exhibit B and incorporated herein, all in accordance with City regulations, as may be amended from time to time. E. The City Council of the City (the "City Council") certified an environmental impact report (the "EIR") for the Project on November 10, 2008 and approved General Plan Amendment 07-0003, Zoning Text Amendment 07-0004, Zoning Map Amendment 07-001 and Conditional Use Permit No. 07-043 on November 10, 2008. 12-3446/84272 1 F. The City and the Property Owner each mutually desire to obtain the binding agreement of one another to permit and ensure that the Property is developed strictly in accordance with the provisions of this Agreement. G. This Agreement will benefit the Property Owner and the City by eliminating uncertainty in planning and providing for the orderly development of the Project. Specifically, this Agreement (1) eliminates uncertainty about the validity of exactions to be imposed by the City, (2)provides for the construction of needed affordable housing, (3) ensures that development of the Property occurs within a reasonable timeframe, and (4) generally serves the public interest within the city and the surrounding region. H. The Planning Commission and City Council have each given notice of their intention to consider this Agreement, and have each conducted public hearings thereon pursuant to the relevant provisions of the Government Code. The City Council has found that the provisions of this Agreement are consistent with the City's 1996 General Plan for development within the City, as amended (the "General Plan") and City zoning ordinances, as amended. The Planning Commission and City Council have also specifically considered the impacts and benefits of the Project upon the welfare of the residents of the City and the surrounding region. The City Council has determined that this Agreement is beneficial to the residents of the City and is consistent with the present public health, safety and welfare needs of the residents of the City and the surrounding region. I. On September 25 , 2012,the Planning Commission held a duly noticed public hearing on this Agreement. J. On October 15 , 2012,the City Council held a duly noticed public hearing on this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals which are hereby incorporated into the operative provisions of this Agreement by this reference and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged,the City and the Property Owner agree as follows: 1. Definitions. 1.1. "Affordable Dwelling Units" shall mean a Dwelling Unit available at Affordable Rent. 1.2. "Affordable Housing Agreement" shall collectively mean that certain Affordable Housing Agreement Restrictions—Rental (Declaration of Covenants, Conditions and Restrictions for Property) (AHARR) by and between the HBHA,the City and the Property Owner together with all attachments thereto, which was approved as to form as part of this Development Agreement. AHARR shall also include any and all amendments or modifications thereto. 1.3. "Affordable Rent" shall have the same meaning set forth in California Health and Safety Code section 50053, as more specifically set forth in the Agreement 12-3446/84272 -2- Containing Covenants Affecting Real Property to be attached to the Affordable Housing Agreement. 1.4. "Applicable Rules" shall mean the rules, regulations, ordinances and official policies of the City which were in force as of the Effective Date (as defined below), including, but not limited to, the General Plan, City zoning ordinances and other entitlements, development conditions and standards, public works standards, subdivision regulations, grading requirements, and provisions related to density, growth management, environmental considerations, and design criteria applicable to the Project. Applicable Rules shall not include building standards adopted by the City pursuant to Health and Safety Code sections 17922 and 17958.5. 1.5. "Area Median Income: shall mean the area median income for the County of Orange ("County") as published annually by the California Department of Housing and Community Development and determined in accordance with the U.S. Department of Housing and Urban Development criteria then in effect and published from time to time. For purposes of this Agreement, the qualifying limits shall be those limits for the County, as set forth in Title 25, California Code of Regulations, section 6932, as that section may be amended, modified or recodified from time to time. If the California Code of Regulations is amended or modified during the term of this Agreement so that such regulations do not specify the area median income from the County, the City shall negotiate in good faith to determine an equivalent authoritative source which determines median income for the County. 1.6. "City Council" shall mean the City Council of the City. 1.7. "City Manager" shall mean the City Manager of the City. 1.8. "County" shall mean Orange County. 1.9. "Development Impact Fees" shall mean and include all fees charged by the City in connection with the application, processing and approval or issuance of permits for the development of property, including, without limitation: application fees;permit processing fees; inspection fees; utility capacity fees; service or connection fees; library/cultural enrichment fees, traffic impact fees; development impact or major facilities fees; park fees; flood control fees; environmental impact mitigation fees; and any similar governmental fees, charges and exactions required for the development of the Project. 1.10. "Development Plan" shall mean the site plan that was approved by the City as part of CUP 07-043. 1.11. 'Discretionary Actions" and "Discretionary Approvals" shall mean those actions and approvals which require the exercise of judgment, or imposition of a condition or obligation, by any officer, employee, review board, commission or department of the City. Discretionary Actions and Discretionary Approvals are distinguished from activities or approvals which merely require any officer, employee, review board, commission or department of the City to determine whether or not there has been compliance with applicable statutes, ordinances, regulations or conditions of approval. 12-3446/84272 -3- 1.12. "Dwelling Unit" shall mean a place in the Project that is legally available to be rented by a person or family. 1.13. 'Effective Date" shall mean the date on which the ordinance approving this Agreement has been adopted by the City. 1.14. "Huntington Beach Housing Authority" shall mean the Housing Authority of the City of Huntington Beach. 1.15. "Moderate Income Household" shall mean persons and families whose income conforms to the qualifying limits defined by California Health and Safety Code Section 50093(b) and set forth in Title 25, California Code of Regulations, Section 6932, as that section may be amended, modified or recodified from time to time. Generally, Moderate Income Household means income that exceeds eighty percent(80%) of the Area Median Income but does not exceed one hundred twenty percent (120%) of the Area Median Income, adjusted for family size by the California Department of Housing and Community Development("HCD") in accordance with adjustment factors and adopted and amended from time to time by the United States Department of Housing("HUD")pursuant to Section 8 of the United States Housing Act of 1937.. 1.16. "Market Rate Rental Dwelling Unit" shall mean those Dwelling Units in the Project that are not Affordable Dwelling Units nor governed by the Affordable Housing Agreement. 1.17. "Periodic Review" shall have the meaning assigned to such term in Paragraph 10(a). 1.18. "Planning Commission' shall mean the Planning Commission of the City. 1.19. "Project" shall mean that development contemplated pursuant to the Development Plan, attached as Exhibit B, approved by Conditional Use Permit No. 07-043. 1.20. "Recession" shall mean an economic recession as determined by the National Bureau of Economic Research, or any successor organization charged with the duty of determining the state of the United States economy. 1.21. "Subsequent Rules" shall mean the rules, regulations, ordinances and official policies of the City, adopted and becoming operative after the Effective Date, including, but not limited to, the General Plan, the Specific Plan, City zoning ordinances and other entitlements, development conditions and standards, public works standards, subdivision regulations, grading requirements, and other provisions related to density, growth management, environmental considerations, and design criteria. [See also paragraph 3 below] 2. Term of Agreement. This Agreement shall become operative and commence upon the Effective Date and remain in effect for a term of five (5) years. Except for continuing obligations regarding affordable housing covenants and requirements, upon the expiration or termination of the term, this Agreement shall be deemed terminated and have no further force and effect. 12-3446/84272 -4- 3. Vested Right to Develop the Proieet. Subject to Paragraphs 3.3 through 3.8, below, and the Applicable Rules, the City hereby grants to the Property Owner the vested right to develop the Project on the Property to the extent and in the manner provided in this Agreement. Subject to Paragraphs 3.3 through 3.8, below, any change in the Applicable Rules adopted or becoming effective after the Effective Date (Subsequent Rules) shall not be applicable to or binding upon the Project or the Property. Subject to Paragraphs 3.3 through 3.8, below, this Agreement will bind the City to the terms and obligations specified in this Agreement and will limit, to the degree specified in this Agreement and under state law,the future exercise of the City's ability to regulate development of the Project. 3.1. No Conflicting Enactments. Subject to Paragraphs 3.3 through 3.8, below, neither the City Council nor any department of the City shall enact rules, regulations, ordinances or other measures which relate to the rate, timing, sequencing, density, intensity or configuration of the development of any part of the Project which is inconsistent or in conflict with this Agreement during the term of this Development Agreement. 3.2. Initiative Measures. Subject to Paragraphs 3.3 through 3.8, below,the Property Owner and the City intend that no moratorium or other limitation (whether relating to the rate,timing or sequence of the development of all or any part of the Project and whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, certificates of occupancy or other entitlements shall apply to the Project to the extent such moratorium or other limitation is inconsistent or conflicts with this Agreement. 3.3. Federal or State Laws. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to modify any of the Applicable Rules to the extent necessary to comply with applicable federal or state laws, codes or regulations which preempt local jurisdiction including, by way of example, and without limiting the generality of the foregoing, the California Environmental Quality Act, all building codes, and any safety regulations, but such modifications shall be made only to the extent required thereunder. 3.4. Emergency. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to apply to the Project any development moratorium, limitation on the delivery of City-provided utility services, or other generally applicable emergency rule, regulation, law or ordinance affecting land use: (1) which is based on genuine health, safety and general welfare concerns (other than general growth management issues); (2)which arises out of a documented emergency situation, as declared by the President of the United States, Governor of California, or the Mayor, City Council or City Manager of the City; and(3) based upon its terms or its effect as applied, does not apply exclusively, primarily or disproportionately to the Project or the Property. 3.5. Project Completion. This Agreement and the EIR and associated findings, are based on the expectation that the Project will be constructed as follows: up to 346 Market Rate Rental Dwelling Units including seven (7) live/work units, 39 Affordable Dwelling Units and up to 10,000 square feet of commercial space will be completed for occupancy during the term of the Agreement. 12-3446/84272 -5- 3.6. Public Health Concerns. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to apply to the Project any generally applicable rule, regulation, law or ordinance which does not affect the land use or development of the Project and which is based on concerns for the public health, safety or general welfare, including, but not limited to, building codes not otherwise preempted by State law. 3.7. New Engineering and Construction Standards. Notwithstanding any provision to the contrary contained herein,the City expressly reserves the right to modify any of the Applicable Rules if the City adopts new and/or amended regulations governing engineering and construction and grading standards and specifications including, without limitation, any and all uniform codes adopted by the City, including local amendments to these codes pursuant to state law allowing for such amendments; provided that such codes are uniformly applied to all new development projects of similar type as the Project within the City and provided further that any such modifications to grading standards can only be imposed prior to grading and any such modifications to engineering or construction standards can only be applied prior to the initiation of construction. Such codes include, without limitation,the City's Uniform Housing Code, Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code. 3.8. Cooperation and Indemnification. The City agrees to cooperate with the Property Owner in all reasonable manners in order to keep this Agreement in full force and effect. Notwithstanding the preceding sentence, in the event any legal action instituted by a third party or other government entity or official challenging the validity of this Agreement, the City and the Property Owner agree to cooperate in defending such action, with the Property Owner to indemnify the City pursuant to Paragraph 15 of this Agreement. In the event of any litigation challenging the effectiveness of this Agreement or any portion thereof, this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending, unless a court of competent jurisdiction orders otherwise. 4. Development of the Property. (a) Permitted Uses. The Property Owner agrees that the Property shall only be developed in accordance with the Development Plan and any conditions and mitigation measures imposed on the Project through final approval of the Project, and the provisions of this Development Agreement. Notwithstanding anything set forth in this Agreement to the contrary, unless the Property Owner proceeds with development of the Property, the Property Owner is not obligated by the terms of this Agreement to affirmatively act to develop all or any portion of the Project, pay any sums of money, dedicate any land, indemnify any party, or to otherwise meet or perform any obligation with respect to the Project, except and only as a condition of development of any portion of the Project. (b) Development Standards. All development and design requirements and standards applicable to the Project shall conform to the Development Plan and any conditions and mitigation measures imposed on the Project, the Huntington Beach Municipal Code, and any Applicable Rules. 12-3446/84272 -6- (c) Development Impact Fees. In addition to the obligations set forth elsewhere in this Agreement,the Property Owner shall be responsible for paying when due all Development Impact Fees in connection with development of the Project at the rates in effect on the Effective Date. Subject to all applicable laws then in effect, the City shall have the right to charge and apply to the Property all Development Impact Fees as may be in effect on the Effective Date. 5. Affordable Housing. It is the intent of the parties that the Affordable Dwelling Units shall be constructed concurrently with the Market Rate Rental Dwelling Units. The Project is subject to the requirement of providing a total of 39 Affordable Dwelling Units, all of which shall be rental units and must remain Affordable Dwelling Units for at least fifty-five (55) years. The City and the Property Owner agree as a condition precedent to Development that an Affordable Housing Agreement be executed to memorialize the terms and conditions of the affordable housing components (Attached Hereto as Exhibit Q. The Property Owner will provide affordable units for rent, which shall be made available to and occupied by Moderate Income Households. The Property Owner agrees to record said affordability covenant and Deed of Trust in favor of the City to assure that affordability covenant runs with the land and remains in effect for the affordability period. The Property Owner agrees to comply with all terms and provisions of the Affordable Housing Agreement and its attachments and acknowledges that any default thereunder shall also constitute a default under this Agreement. It is contemplated that multiple temporary final inspections (to allow for occupancy) will be sought during the construction of the Project. When each temporary final inspection(to allow for occupancy) is sought, approximately ten percent (10%) of the units for which it is sought will be Affordable Dwelling Units. 6. Extension of Project Approvals. Unless a longer term would result under otherwise applicable state law,the term of any permits approved as part of the Project approvals shall be automatically extended for the term of this Agreement. 7. Subsequent Discretionary Action and Approval. The City agrees not to unreasonably withhold, condition or delay any Discretionary Action or Discretionary Approval or other action or approval by the City which may be required by the Project subsequent to the execution of this Agreement. Upon the filing of a complete application and payment of appropriate processing fees by the Property Owner,the City shall promptly commence and diligently schedule and convene all required public hearings in an expeditious manner consistent with the law and process all Discretionary Actions and Discretionary Approvals in an expeditious manner. 8. Compliance Review. (a) Periodic Review. Pursuant to Government Code section 65865.1,the City Manager or his or her designee shall, not less than once in every twelve (12)months, review the Project and this Agreement to ascertain whether or not the Property Owner is in full compliance with the terms of the Agreement(the "Periodic Review"). 12-3446/84272 -7- (b) Review Procedure. During a Periodic Review, the Property Owner shall provide information reasonably requested by the City Manager or his or her designee that the Project is being developed in good faith compliance with the terms of this Agreement. If, as a result of a Periodic Review, the City finds and determines on the basis of substantial evidence that the Property Owner has not complied in good faith with the terms or conditions of this Agreement, the City shall issue a written "Notice of Non-Compliance" to the Property Owner specifying the grounds therefore and all facts demonstrating such non-compliance. The Property Owner's failure to cure the alleged non-compliance within sixty(60) days after receipt of the notice, or, if such noncompliance is not capable of being cured within sixty (60) days, the Property Owner's failure to initiate all actions required to cure such non-compliance within sixty (60) days after receipt of the notice and completion of the cure of such non-compliance within one hundred twenty(120) days, shall constitute a default under this Agreement on the part of the Property Owner and shall constitute grounds for the termination of this Agreement by the City as provided for below. If requested by the Property Owner, the City agrees to provide to the Property Owner a certificate that the Property Owner is in compliance with the terms of this Agreement, provided the Property Owner reimburses the City for all reasonable and direct costs and fees incurred by the City with respect thereto. (c) Termination or Modification for Non-Compliance. Pursuant to Government Code section 65865.1, if the City Council finds and determines, on the basis of substantial evidence,that the Property Owner has not complied in good faith with the terms or conditions of this Agreement,the City Council may modify or terminate this Agreement. Any action by the City with respect to the termination or modification of this Agreement shall comply with the notice and public hearing requirements of Government Code section 65867 in addition to any other notice required by law. Additionally, the City shall give the Property Owner written notice of its intention to terminate or modify this Agreement and shall grant the Property Owner a reasonable opportunity to be heard on the matter and to oppose such termination or modification by the City. 9. Modification,Amendment, Cancellation or Termination. 9.1. Amendment and Cancellation. Pursuant to Government Code section 65868, this Agreement may be amended or canceled, in whole or in part, by mutual written consent of the City and the Property Owner or their successors in interest. Public notice of the parties' intention to amend or cancel any portion of this Agreement shall be given in the manner provided by Government Code section 65867. Any amendment to the Agreement shall be subject to the provisions of Government Code section 65867.5. 9.2. Modification. The City Planning Director, with the consent of the Property Owner, may make minor modifications to the Agreement without the need for formal action by the City's Planning Commission or City Council as long as such modifications do not alter the Term of this Development Agreement,the permitted uses, density or intensity of uses, the maximum height or size of buildings,provisions for reservations or Dedication of land, conditions, terms, restrictions and requirements relating to Subsequent Discretionary Actions and Approvals, and monetary contributions by the Property Owner. 12-3446/84272 -8- 10. Defaults, Notice and Cure Periods, Events of Default and Remedies. 10.1. Default By the Property Owner. 10.1.1. Default. If the Property Owner does not perform its obligations under this Agreement in a timely manner, the City may exercise all rights and remedies provided in this Agreement, provided the City shall have first given written notice to the Property Owner as provided in Paragraph 15(a)hereof. 10.1.2. Notice of Default. If the Property Owner does not perform its obligations under this Agreement in a timely manner, the City through the City Manager may submit to the Property Owner a written notice of default in the manner prescribed in Paragraph 15(a) identifying with specificity those obligations of the Property Owner under this Agreement which have not been timely performed. Upon receipt of any such written notice of default, the Property Owner shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of any such written notice of default and shall complete the cure of any such default(s)no later than sixty (60) days after receipt of any such written notice of default, or if such default(s) is not capable of being cured within sixty(60) days, no later than one hundred twenty (120) days after receipt of any such written notice of default, provided the Property Owner commences the cure of any such default(s)within such sixty(60) day period and thereafter diligently pursues such cure at all times until any such default(s) is cured. 10.1.3. Failure to Cure Default Procedure. If after the cure period provided in Paragraph 10.1.2 has elapsed, the City Manager finds and determines the Property Owner, or its successors,transferees and/or assignees, as the case may be, remains in default and that the City intends to terminate or modify this Agreement, or those transferred or assigned rights and obligations, as the case may be, the City's Planning and Building Director shall make a report to the Planning Commission and then set a public hearing before the Planning Commission in accordance with the notice and hearing requirements of Government Code sections 65867 and 65868. If after public hearing, the Planning Commission finds and determines, on the basis of substantial evidence, that the Property Owner, or its successors, transferees and/or assigns, as the case may be, has not cured a default under this Agreement pursuant to this Paragraph 10, and that the City shall terminate or modify this Agreement, or those transferred or assigned rights and obligations, as the case may be,the Property Owner, and its successors,transferees and/or assigns, shall be entitled to appeal that finding and determination to the City Council. Such right of appeal shall include, but not be limited to, an objection to the manner in which the City intends to modify this Agreement if the City intends as a result of a default of the Property Owner, or one of its successors or assigns, to modify this Agreement. In the event of a finding and determination that all defaults are cured,there shall be no appeal by any person or entity. Subject to Paragraph 4(a) above, nothing in this Paragraph 10 or this Agreement shall be construed as modifying or abrogating the City Council's review of Planning Commission actions or limiting the City's rights and remedies available at law or in equity, which shall include (without limitation) compelling the specific performance of the Property Owner's obligations under this Agreement. 12-3446/84272 -9- 10.1.4. Termination or Modification of Aereements. The City may terminate or modify this Agreement, or those transferred or assigned rights and obligations, as the case may be, after such final determination of the City Council or, where no appeal is taken, after the expiration of the applicable appeal periods described herein. There shall be no modifications of this Agreement unless the City Council acts pursuant to Government Code sections 65967.5 and 65868, irrespective of whether an appeal is taken as provided herein. 10.1.5. Lender Protection Provisions. 10.1.5.1. Notice of Default. In addition to the notice provisions set forth in Paragraph 15(a)(2), the City shall send a copy of any notice of default sent to the Property Owner or any of its successors or assigns to any lender that has made a loan then secured by a deed of trust against the Property, or a portion thereof, provided such lender shall have (a) delivered to the City written notice in the manner provided in Paragraph 15(a) of such lender's election to receive a copy of any such written notice of default and (b) provided to the City a recorded copy of any such deed of trust. Any such lender that makes a loan secured by a deed of trust against the Property, or a portion thereof, and delivers a written notice to the City and provides the City with a recorded copy of any such deed of trust in accordance with the provisions of this Paragraph 10.1.5.1 is herein referred to as a "Qualified Lender." 10.1.5.2. Right of a Qualified Lender to Cure a Default. The City shall send a written notice of any Property Owner default to each Qualified Lender. From and after receipt of any such written notice of default, each Qualified Lender shall have the right to cure any such default within the same cure periods as provided to the Property Owner hereunder. If the nature of any such default is such that a Qualified Lender cannot reasonably cure any such default without being the owner of the Property, or the applicable portion thereof, (as reasonably determined by the City), then so long as the Qualified Lender(s) is (are) diligently proceeding (as reasonably determined by the City)to foreclose the lien of its deed of trust against the owner of the Property, or the applicable portion thereof, and after completing any such foreclosure promptly commences the cure of any such default and thereafter diligently pursues the cure of such default to completion,then such Qualified Lender shall have an additional one hundred twenty (120) days following such foreclosure to cure any such default. 10.1.5.3. Exercise of the City's Remedies. Notwithstanding any other provision of this Agreement, the City shall not exercise any right or remedy to cancel or amend this Agreement during any cure period. 10.2. Default by the City. 10.2.1. Default. In the event the City does not accept, process or render a decision in a timely manner on necessary development permits, entitlements, or other land use or building approvals for use as provided in this Agreement upon compliance with the requirements therefore, or as otherwise agreed to by the City and the Property Owner, or the City otherwise defaults under the provisions of this Agreement, subject to Paragraph 10.3,the Property Owner shall have all rights and remedies provided herein or by applicable law, which shall include compelling the specific performance of the City's obligations under this Agreement provided the Property Owner has first complied with the procedures in Paragraph 10.2.2. 12-3446/84272 -10- 10.2.2. Notice of Default. Prior to the exercise of any other right or remedy arising out of a default by the City under this Agreement, the Property Owner shall first submit to the City a written notice of default stating with specificity those obligations which have not been performed under this Agreement. Upon receipt of the notice of default, the City shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of the notice of default and shall complete the cure of such default(s)no later than thirty (30) days after receipt of the notice of default, or such longer period as is reasonably necessary to remedy such default(s), provided the City shall continuously and diligently pursue each remedy at all times until such default(s) is cured. In the case of a dispute as to whether the City is in default under this Agreement or whether the City has cured the default, or to seek the enforcement of this Agreement, the City and the Property Owner may submit the matter to negotiation/mediation pursuant to Paragraph 15(o) of this Agreement. 10.3. Monetary Damages. The Property Owner and the City acknowledge that neither the City nor the Property Owner would have entered into this Agreement if either were liable for monetary damages under or with respect to this Agreement or the application thereof. Both the City and the Property Owner agree and recognize that, as a practical matter, it may not be possible to determine an amount of monetary damages which would adequately compensate the Property Owner for its investment of time and financial resources in planning to arrive at the kind, location, intensity of use, and improvements for the Project,nor to calculate the consideration the City would require to enter into this Agreement to justify such exposure. Therefore, the City and the Property Owner agree that neither shall be liable for monetary damages under or with respect to this Agreement or the application thereof and the City and the Property Owner covenant not to sue for or claim any monetary damages for the breach of any provision of this agreement. This foregoing waiver shall not be deemed to apply to any fees or other monetary amounts specifically required to be paid by the Property Owner to the City pursuant to this Agreement, including, but not limited to, any amounts due pursuant to Paragraph 15(g) and 15(m). The foregoing waiver shall also not be deemed to apply to any fees or other monetary amounts specifically required to be paid or credited by the City to the Property Owner pursuant to this Agreement, including, but not limited to any fee credits specifically required to be credited by the City to the Property Owner or its assignee(s). 11. Administration of Agreement and Resolution of Disputes. The Property Owner shall at all times have the right to appeal to the City Council any decision or determination made by any employee, agent or other representative of the City concerning the Project or the interpretation and administration of this Agreement. All City Council decisions or determinations regarding the Project or the administration of this Agreement shall also be subject to judicial review pursuant to Code of Civil Procedure section 1094.5, provided that,pursuant to Code of Civil Procedure section 1094.6, any such action must be filed in a court of competent jurisdiction not later than ninety(90) days after the date on which the City Council's decision becomes final. In addition, in the event the Property Owner and the City cannot agree whether a default on the part of the Property Owner, or any of its successors or assigns, under this Agreement exists or whether or not any such default has been cured, then the City or the Property Owner may submit the matter to negotiation/mediation pursuant to Paragraph 15(o). 12-3446/84272 -11- 12. Recordation of this Agreement. Pursuant to Government Code section 65868.5, the City Clerk shall record a copy of this Agreement in the Official Records of the County within ten(10) days after the mutual execution of this Agreement. 13. Constructive Notice and Acceptance. Every person or entity who now or hereafter owns or acquires any right,title or interest in or to any portion of the Property is, and shall be, conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property. 14. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the City and the Property Owner and their respective successors and assigns. No other person or entity shall have any right of action based upon any provision of this Agreement. 15. Miscellaneous. (a) Notices. All notices which are allowed or required to be given hereunder shall be in writing and (1) shall be deemed given and received when personally delivered or (2) shall be sent by registered or certified mail or overnight mail service, addressed to the applicable designated person by one party to the other in writing, and shall be deemed received on the second business day after such mailing. If to the City: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attn: City Manager Tel. No.: (714) 536-5575 Fax No.: (714) 536-5233 If to the Property Owner: Red Oak Investments 2101 Business Center Drive, Suite 230 Irvine, CA 92612 Attn: Alex Wong Tel.No.: (714) 342-2502 Fax No.: (949) 733-2005 Archstone Huntington Beach College Park LLC 3 MacArthur Place, 6th Floor Santa Ana, CA 92707-5902 Attn: Ken Keefe Tel.No.: (714) 689-7014 Fax No.: (714) 460-8571 12-3446/84272 -12- Archstone Huntington Beach College Park LLC c/o Archstone 9200 East Panorama Circle, Suite 400 Englewood, CO 80112 Attn: Michael Shomo Tel. No.: (303) 708-6954 Fax No.: (720) 873-6358 Allen Matkins Three Embarcadero Center, 12th Floor San Francisco, California 94 1 1 1-4074 Attn: Sonia J. Ransom Tel.No.: (415) 837-1515 Fax No.: (415) 837-1516 .(b) Severability. If any part of this Agreement is declared invalid for any reason, such invalidity shall not affect the validity of the remainder of the Agreement unless the invalid provision is a material part of the Agreement. The other parts of this Agreement shall remain in effect as if this Agreement had been executed without the invalid part. In the event any material provision of this Agreement is determined to be invalid, void or voidable,the City or the Property Owner may terminate this Agreement. (c) Entire Agreement; Conflicts. This Agreement represents the entire agreement between the City and the Property Owner with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written, between the City and the Property Owner with respect to the matters contained in this Agreement. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Applicable Rules or the Subsequent Applicable Rules,then the provisions of this Agreement shall govern and prevail. (d) Further Assurances. The City and the Property Owner agree to perform, from time to time, such further acts and to execute and deliver such further instruments reasonably to effect the intents and purposes of this Agreement, provided that the intended obligations of the City and the Property Owner are not thereby modified. (e) Inurement and Assignment. This Agreement shall inure to the benefit of and bind the successors and assigns of the City and the Property Owner, may be assigned by either the City or the Property Owner to any party or parties purchasing all or any part of the Property, or any interest therein pursuant to the provisions of this Paragraph 15(e). The specific rights and obligations of this Agreement shall be deemed covenants running with the land that concern and affect the Property Owner's interest in the Property. Prior to the Property Owner's assignment of any rights, duties or obligations under this Agreement, the Property Owner shall present such information required by the City in its commercially reasonable discretion to demonstrate to the City's satisfaction that the proposed successor and/or assignee has the financial ability and experience to fulfill those specific rights, duties and obligations under the Agreement that the successor and/or assignee would assume. The City shall have the right to approve the proposed successor and/or assignee, provided that the City's approval may not be 12-3446/84272 -13- unreasonably withheld, conditioned or delayed. The provisions of this Paragraph 15(e) shall be self-executing and shall not require the execution or recordation of any further document or instrument. The City's approval rights over a successor or assignee of the Property Owner shall terminate upon issuance of the final inspection for the project. (f) Negation of Agency. The City and the Property Owner acknowledge that, in entering into and performing under this Agreement, each is acting as an independent entity and not as an agent of the other in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as making the City and the Property Owner joint venturers, partners or employer/employee. (g) Attorney's Fees. In the event of any claim, dispute or controversy arising out of or relating to this Agreement, including an action for declaratory relief, the prevailing party in such action or proceeding shall not be entitled to recover its court costs and reasonable out-of-pocket expenses. (h) Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. (i) Force Majeure. Performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to one or more of the following events, providing that any one or more of such event(s) actually delays or interferes with the timely performance of the matter to which it would apply and despite the exercise of diligence and good business practices and such event(s) are beyond the reasonable control of the party claiming such interference: war, terrorism, terrorist acts, insurrection, strikes, lock-outs, unavailability in the marketplace of essential labor,tools, materials or supplies, failure of any contractor, subcontractor, or consultant to timely perform (so long as the Property Owner is not otherwise in default of any obligation under this Agreement and is exercising commercially reasonable diligence of such contractor, subcontractor or consultant to perform), riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, a Recession or unusually severe weather. An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of actual knowledge of the commencement of the cause. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until the party claiming such delay and interference delivers to the other party written notice describing the event, its cause, when and how such party obtained knowledge,the date and the event commenced, and the estimated delay resulting therefrom. 0) Paragraph Headings. The paragraph headings contained in this Agreement are for convenience and identification only and shall not be deemed to limit or define the contents to which they relate. 12-3446/84272 -14- (k) Time of Essence. Time is of the essence of this Agreement, and all performances required hereunder shall be completed within the time periods specified. Any failure of performance shall be deemed as a material breach of this Agreement. (1) Counterparts. This Agreement and any modifications hereto may be executed in any number of counterparts with the same force and effect as if executed in the form of a single document. (m) Indemnification. The Property Owner agrees, as a condition of approval of this Agreement,to indemnify, defend and hold harmless at the Property Owner's expense,the City, the City Council, and the City's agents, officers and employees from and against any claim, action or proceeding to attack, review, set aside, void or annul the approval of this Agreement to determine the reasonableness, legality or validity of any provision hereof or obligation contained herein. The Property Owner also agrees to indemnify the City, the City Council, and the City's officials, agents and employees for any claims, acts or proceedings relating to the Property Owner's failure to comply with the Project's affordable housing requirements. The indemnity described in this section is not subject to the provisions of paragraph 4.a. providing that obligations cease if the Project does not go forward; provided, however,that the indemnity described in the first sentence of this section shall terminate when the applicable statute of limitations for the legal challenges described therein terminates. The City shall promptly notify the Property Owner of any such claim, action or proceeding of which the City receives notice, and the City will cooperate fully with the Property Owner in the defense thereof. The Property Owner shall provide a defense to the City with counsel reasonably selected by the Property Owner and the City to defend both the City and the Property Owner, and shall reimburse the City for any court costs which the City may be required to pay as a result of any such claim, action or proceeding. The City may, in its sole discretion, participate in the defense of any such claim, action or proceeding at its own expense, but such participation shall not relieve the Property Owner of the obligations of this Paragraph 15(m). (n) hold harmless Agreement. The City and the Property Owner mutually agree to, and shall hold each other and each of the other's elective and appointed councils, boards, commissions, directors, officers,partners, agents, representatives and employees harmless from any liability for damage or claims for personal injury, including death, and from claims for property damage which may arise from the activities of the other or the other's contractors, subcontractors, agents, or employees which relate to the Project whether such activities be by the City or the Property Owner, or by any of the City's or the Property Owner's contractors, subcontractors, or by any one or more persons indirectly employed by, or acting as agent for the Property Owner, any of the Property Owner's or the City's contractors or subcontractors. The City and the Property Owner agree to and shall defend the other and each of the other's elective and appointive councils, boards, directors, commissioners, officers,partners, agents, representatives and employees from any suits or actions at law or in equity for damage caused or alleged to have been caused by reason of the aforementioned activities which relate to the Project. 12-3446/84272 -15- (o) Alternative Dispute Resolution Procedure. (1) Dispute. If a dispute arises concerning whether the City or the Property Owner or any of the Property Owner's successors or assigns is in default under this Agreement or whether any such default has been cured or whether or not a dispute is subject to this Paragraph (a "Dispute"), then such dispute shall be subject to negotiation between the parties to this Agreement, and if then not resolved shall be subject to non-binding mediation, both as set forth below, before either party may institute legal proceedings. (2) Negotiation. If a Dispute arises, the parties agree to negotiate in good faith to resolve the Dispute. If the negotiations do not resolve the Dispute to the reasonable satisfaction of the parties within 15 days from a written request for a negotiation, then each party shall give notice to the other party identifying an official or executive officer who has authority to resolve the Dispute to meet in person with the other party's designated official or executive officer who is similarly authorized. The designated persons identified by each party shall meet in person for one day within the 20-day period following the expiration of the 15-day period and the designated persons shall attempt in good faith to resolve the Dispute. If the designated persons are unable to resolve the Dispute,then the Dispute shall be submitted to non-binding mediation. (3) Mediation. (i) Within 15 days following the designated persons' meeting described in paragraph 15(o)(2), above, either party may initiate non-binding mediation(the "Mediation"), conducted by Judicial Arbitration& Mediation Services, Inc. ("JAMS") or other agreed upon mediator. Either party may initiate the Mediation by written notice to the other party. (ii) The mediator shall be a retired judge or other mediator, selected by mutual agreement of the parties, and if they cannot agree within 15 days after the Mediation notice, the mediator shall be selected through the procedures regularly followed by JAMS. The Mediation shall be held within 15 days after the Mediator is selected, or a longer period as the parties and the mediator mutually decide. (iii) If the Dispute is not fully resolved by mutual agreement of the parties within 15 days after completion of the Mediation,then either party may institute legal proceedings. (iv) The parties shall bear equally the cost of the mediator's fees and expenses, but each party shall pay its own attorneys' and expert witness fees and any other associated costs. (4) Preservation of Rillhts. Nothing in this Paragraph shall limit a party's right to seek an injunction or restraining order from a court in circumstances where such equitable relief is deemed necessary by a party to preserve such party's rights. (p) Reference of California Law. Unless expressly stated to the contrary, all references to statutes herein are to the California codes. 12-3446/84272 -16- (q) Interpretation. The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each party has independently reviewed this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the party preparing it, and instead other rules of interpretation and construction shall be utilized. IN WITNESS WHEREOF, the City and the Property Owner have each executed this Agreement as of the date first written above. ARCHSTONE HUNTINGTON BEACH CITY OF HUNTINGTON BEACH, COLLEGE PARK LLC, a Colorado a California municipal co ration limited liability company ay r By: 6�4 nila a4- "City C print name 61 ITS: (circle one)Chairman/Presiden ice President AND APPROVED AS TO FORM: B print name J City Att (4 V- -.Lq_ a ITS: Asst. Secretary—.4ea-4wr Thomas S. Reif INITIATE D APPROVED: Assistant Secretary Director of Planning and Building REVIEWEP AND APPROVED City Manager 12-3446/84272 -17- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of MrlC On Spkrvx6Cr- 00i 2DIZ before me, &V�a4an if�a \ Date Here Insert Name and Title of the Officer personally appeared f' !"1/ l,61 4 LA_� Name(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. KALI GOGLANIAN capacity(ies), and that by his/her/their signature(s) on the `` Commission# 1924860 a instrument the person(s), or the entity upon behalf of Notary Public-California z which the person(s) acted, executed the instrument. Orange County M Comm.Expires Mar 9,2015 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my ha d and official eal. Sign k Place Notary Seal Above Sig to of Notary Public OPTIOIV�4L Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document 1 Title or Type of Document: ��pp ,�.. Document Date: �� (Jl� Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s)Signer's Name: WG A. Eaf�tWaalt Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General _ ❑ Attorney in Fact • ❑Attorney in Fact • ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91 31 3-2 402•www.NationalNotaryorg Item#5907 Reorder:Call Toll-Free 1-800-876-6827 ACKNOWLEDGEMENT STATE OF COLORADO COUNTY OF ARAPAHOE On this l,? day of in the ye �, before me, JOaw M. personally appeared 7&m -s S , toeiI personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. N " ary Public ` JpAN •°n M. • My commission expires ••'cARANNAs a a `CIO qTF OF c�`-°� ��SSit�nt EXPP�es Seal ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On October 16, 2012, before me, P. L. Psparza, Notary Public, personally appeared Joan L. Flynn and Donald F. Hansen, Jr. who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons 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. P. L. ESPARZA WITNESS my hand and official seal. Commission # 1857021 to Notary Public-California z Orange County My Comm. Expires Aug 4,2013 (Seal) (Notary Sigriatu EXHIBIT A LEGAL DESCRIPTION PARCEL 1, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 211, PAGES 25 AND 26 OF PARCEL MAPS, RECORDS OF ORANGE,COUNTY, CALIFORNIA. EXCEPTING THEREFROM A PORTION 'THEREOF 50% OF A 100% OF ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER HYDROCARBON SUBSTANCES IN, UNDER, OR THAT MAY BE PRODUCED OR RECOVERED FROM THAT PORTION OF SAID LAND BELOW A DEPTH OF 500 FEET FROM ITS SURFACE, WITH AND INCLUDING IN SUCH EXCEPTION AND RESERVATION, FOR THE BENEFIT OF THOSE ENTITLED THERETO, THE RIGHT AT ANY AND ALL TIMES TO ENTER UPON AND INTO ANY AND ALL PARTS OF THE PORTION OF SAID LAND BELOW SUCH DEPTH OF 500 FEET FROM ITS SURFACE FOR THE PURPOSE OF EXPLORING AND DRILLING FOR, MINING, DEVELOPING, REMOVING AND EXTRACTING ANY AND ALL SUCH SUBSTANCES BY SLANT OR DIRECTIONAL DRILLING OR OTHER OPERATIONS FROM OTHER LAND, ENTERING INTO AND PENETRATING THE LAND THE SUBJECT HEREOF, ONLY BELOW SUCH DEPTH OF 500 FEET FROM ITS SURFACE BUT WITH (AND THERE SHALL BE) NO RIGHT UNDER SUCH EXCEPTION AND RESERVATION OF ENTRY UPON OR USE OF THE SURFACE OR SUBSURFACE TO A DEPTH 01, 500 FEET BELOW THE SURFACE, AS RESERVED BY DORO'THY THAYER PECK, IN DEED RECORDED OCTOBER 1, 1959, IN BOOK 4907, PAGE 389 OF OFFICIAL. RECORDS, CHARLES H. THATCHER AND TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA CORPORATION, ALL AS TRUSTEES OF THE TRUST UNDER WRITTEN DECLARATION THEREOF BY CARRIE A. PECK, DATED DECEMBER 18, 1936, AS TO AN UNDIVIDED 25% OF SAID 100% INTEREST, AND BY DOROTHY T. PECK, A WIDOW, IN HER INDIVIDUAL CAPACITY, AS TO AN UNDIVIDED 25%OF SAID 100% INTEREST. ALSO EXCEPTING FROM THAT PORTION THEREOF LYING BELOW A DEPTH OF 500 FEET MEASURED VERTICALLY FROM THE CONTOUR OF THE SURFACE WITHOUT, ILOWEVER, THE RIGHT OF ANY PURPOSE WHATSOEVER TO ENTER UPON, INTO OR 'THROUGH THE SURFACE OF SAID PROPF_,RTY OR ANY PART THEREOF LYING BETWEEN SAID SURFACE OF 500 FEET BELOW SAID SURFACE, AS EXCEPTED IN THE GRANT DEED FROM SOUTHERN PACIFIC TRANSPOR"TATION COMPANY RECORDED JUNE 30, 1986 AS INSTRUMENT NO. 86-277355 OF OFFICIAL RECORDS. EXHIBIT B This Document was electronically recorded by City of Huntington Beach Recorded in Official Records, Orange County RECORDING REQUESTED BY Tom Daly, Clerk-Recorder AND WHEN RECORDED MAIL TO: IIO01111111111911111611111191SIIIIII1III101111911SIII11IIIOIIe1111111101N® FEE City of Huntington Beach 2012000632650 10:29am 10/17/12 2000 Main Street 65 404 Al 13 Huntington Beach, California 92648 0.00 0.00 0.00 0.00 36.00 0.00 0.00 0.00 Attention: City Clerk (Space Above For Recorder's Use) AFFORDABLE HOUSING AGREEMENT RESTRICTIONS—RENTAL (DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS FOR PROPERTY) This Affordable Housing Agreement and Declaration of Conditions, Covenants and Restrictions for Property (the "Declaration") is made as of 2012, by and between ARCHSTONE HUNTINGTON BEACH COLLEGE PARK LLC, a Colorado limited liability company (the "Property Owner" or"Covenantor") and THE HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH, a California municipal corporation (the "Housing Authority" or"Covenantee"). RECITALS : A. Property Owner is the owner of record of that certain real property located at 7302-7400 Center Avenue (the "Subject Property"), in the City of Huntington Beach, County of Orange, State of California legally described in the attached"Exhibit A." B. The Property Owner seeks to develop a project on the Property consisting of 384 dwelling units, and approximately 7,000 square feet of resident recreation area, lobby and leasing office area. The project also includes approximately 10,000 square feet of commercial/retail uses, as more particularly set forth in the Development Plan(collectively, the "Project") approved by Conditional Use Permit("CUP") 07-043, attached as Exhibit B and incorporated herein, all in accordance with the General Plan, as it may be amended from time to time (the "General Plan") adopted by the City Council of the City (the "City Council"), the Zoning Code and CUP 07-043. C. The City imposed conditions of approval on the Project, in part that the Property Owner provide affordable housing. As part of the plan to provide affordable housing,the City and the Property Owner entered into a Development Agreement which requires as a condition that an Affordable Housing Agreement be executed requiring the Property Owner to provide affordable rental units for a certain period of time. Specifically, the Property Owner is required to/has agreed to provide 39 units within the Project available for rent to households earning Moderate-Income (as that term is defined in the Development Agreement) for a period of 55 Tft dwwwt Is so*for the bushno of the City of Hund SeacK as oontemptated under nt Code Sec.6103 sW 12-3446/84271 d=M b9 recorded free of dwM years as further defined herein. The execution and recordation of this Declaration is intended to fully satisfy that condition. NOW, THEREFORE, the parties hereto agree and covenant as follows: 1. Affordability Covenants. Covenantor agrees for itself and its successors and assigns, and every successor to Covenantor's interest in the affordable unit, or any part thereof that the Project approved by CUP 07-043 located at 7302-7400 Center Avenue, which consists of 384 units, 39 of which shall be designated as affordable and shall be held subject to this Declaration for fifty-five years from the date final inspection has been approved by the City as follows: (a) Qualified Households. Covenantor agrees to make available, restrict occupancy to, and to lease 39 units for the duration of the Affordability Period as defined herein. These 39 units may sometimes be referred to as an"Affordable Unit" or, collectively, the "Affordable Units." Each Affordable Unit shall be occupied by Moderate-Income Households as that term is defined in the Development Agreement adjusted for the actual number of persons in the Household that will reside in the Affordable Unit. As used in this Declaration,the term "Household" shall mean one or more persons, whether or not related, living together in an Affordable Unit that rent or lease any portion of the Affordable Unit. As used in this Declaration, the term "Covenantor" shall mean the Property Owner, its successors and assigns, and every successor to the Property Owner's interest in the Project, or any part thereof. (b) Duration. The term of this agreement shall commence on the date that the Final Inspection for the twentieth affordable unit is approved by the City and will continue for 55 years thereafter("Affordability Period"). The covenant contained in this Section 1 shall run with the Project and shall automatically terminate and be of no further force or effect upon the expiration of the Affordability Period. (c) Income Qualification. Prior to the lease of an Affordable Unit to any Household, Covenantor shall submit to the Covenantee a completed income computation and certification form, in such form as is generally used by City in administering its affordable housing program as may be amended from time to time. Covenantor shall certify that,to the best of its knowledge, each Household is a Moderate-Income Household that meets the eligibility requirements established for the particular Affordable Unit occupied by such Household. Covenantor shall obtain an income certification from each adult member of the Household and shall certify that, to the best of Covenantor's knowledge, the income of the Household is truthfully set forth in the income certification form. Furthermore the Covenantor shall, on renewal of the annual lease for the particular Affordable Unit, again obtain income certification from each adult member of the Household and submit to the Covenantee a recertification form that shall certify,to the best of Covenantor's knowledge, each Household is a Moderate-Income Household that meets the eligibility requirements established for the particular Affordable Unit 12-3446/84271 -2- occupied by such Household. Covenantor shall verify the income certification of the Household in one or more of the following methods: (1) Obtain two (2)paycheck stubs from two (2)most recent pay periods for each adult member of the Household. (2) Obtain a copy of an income tax return certified to be true and complete for the most recent tax year in which a return was filed, for each adult member of the Household. (3) Obtain an income verification certification from the employer of each adult member of the Household. (4) Obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the Household receives assistance from such agencies. (5) Obtain an alternate form of income verification reasonably requested by Covenantee, if none of the above forms of verification is available to Covenanter. If, at the time of the annual lease renewal of an Affordable Unit to an eligible Household, the Covenantor learns that Household's income increases above the income level permitted for that unit, the Household shall continue to be permitted to reside in such Affordable Unit, for no more than one year. Notwithstanding the foregoing, Covenantor, at the City's discretion, shall have the option, in its commercially reasonable discretion,to designate another dwelling unit as an Affordable Unit during that one year period so that the Household may continue to occupy a unit in the Project, if the Household and the Covenantor so agree. (d) Determination of Affordable Rent for the Affordable Units. The rent for each Affordable Unit(the "Affordable Rent") shall be adjusted annually by the following formula established by California Health and Safety Code Section 50053 upon the publication of the revised Area Median Income. This methodology sets the moderate income rent at 1/12 of thirty percent (30%) of one-hundred ten percent(110%) of the Area Median Income adjusted for family size appropriate to the unit. As used herein, for the purpose of calculating the Affordable rent, "adjusted for family size appropriate to the unit" shall mean a household of one person in the case of a studio Affordable Dwelling Unit, two persons in the case of a one-bedroom Affordable Dwelling Unit, and a household of three persons in the case of a two-bedroom Affordable Dwelling Unit. The income limits and Affordable Rents in effect as of the date of this Agreement are attached hereto as Exhibit "C" and incorporated herein by this reference. COVENANTOR UNDERSTANDS AND KNOWINGLY AGREES THAT THE MAXIMUM RENTAL PAYMENTS TO BE ESTABLISHED BY THIS FORMULA ARE NOT NECESSARILY EQUAL TO THE FAIR MARKET RENT FOR THE AFFORDABLE UNITS, AND MAY BE ESTABLISHED AT A LEVEL SUBSTANTIALLY BELOW THE FAIR MARKET RENT LEVELS. 12-3446/84271 -3- COVENANTOR HEREBY AGREES TO RESTRICT THE AF ORDABLE UNITS ACCORDINGLY. CovENAN-MIS INrrIAI.s In the event state law referenced herein is amended,the terms of this Agreement shall automatically be amended to remain consistent with State law. (e) Annual Repo Within sixty(60)days after the end of each calendar year during the Affordability Period,Covenantor shall submit to Covenantee a report verifying Covenantor's compliance with the provisions of this Declaration.("Annual Report'). Covenantor's-final.Annual Report shall-be submitted to Covenantee within sixty 9)days after the end of the Affordability Period.-Each Annual Report shall identify the location of the Affordable Units for the applicable reporting period,the.identity of each Household member occupying an Affordable Unit during anyportion of such period,the:income and household.size of each such Household,the Affordable Rent for each of the Affordable Units,and the rent actually charged pursuant to the lease or rental agreement. If Covenantee prescribes a particular form to be utilized by Covenantor in preparing the Annual Report,Covenantor shall utilize said form,provided that it complies substantially with the foregoing requirements. 2. Non-Dlssa imination Covenants. Covenantor covenants by and for itself,its successors and assigns;and all persons claiming under or through them that there shall be'no discrimination against or segregation of any person or group of persons on account of race,color, religion,sex,sexual orientation,creed,ancestry,national or ethnic origin,age,family or marital status,handicap or disability,in the use,occupancy,tenure,or enjoyment of the Affordable Unit, nor shall Covenantor itself or any person claiming under or through it,establish.or permit any such practice or practices of discrimination or segregation with reference to the selection, location,number,use or occupancy of tenants,subtenants,or vendees in the Affordable Unit. Covenantor and its successors and assigns shall refrain from restricting the leasing of the Affordable Unit on the basis of race,color,religion,sex,sexual orientation,creed,ancestry, national or ethnic origin,age,family or marital status,handicap or disability,of any person. All such leases shall contain or be subject to substantially the following nondiscrimination or nonsegregation clause: "Tyne lessee herein covenants by and for himself or herself,his or her heirs,executors, administrators,and assigns,and all persons claiming under or through him or her,and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons,on account of race,color,religion,sex, . sexual-orientation,creed,ancestry,national or ethnic origin,age, family or marital status,handicap or disability in the leasing, subleasing,transferring,use, occupancy,tenure,or enjoyment of the premises herein leased nor shall the lessee himself or herself,or any person claiming under or through him or her,establish or permit any such practice or practices of discrimination or segregation with reference to the selection,location,number,use, 12-3446/94271 -4- or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." 3. Use Restrictions. During the Affordability Period, Covenantor shall be required to take all reasonable steps necessary to ensure that each Household renting an Affordable Unit has knowledge of all terms and conditions of this Declaration by including in each and every lease and rental agreement a clause which incorporates this Declaration by reference and makes this Declaration a part of an attachment to such lease or rental agreement. In addition, during the Affordability Period, each lease or rental agreement for any of the Affordable Units shall contain provisions that the Affordable Unit shall be occupied, used, and maintained as follows: (a) The Affordable Unit shall be used only for private dwelling purposes, with appurtenant facilities, and for no other purposes; provided, however, that home occupation businesses conducted in compliance with the City's Municipal Code and other City regulations shall be considered an appropriate use for private dwelling purposes; (b) Household Size. The maximum number of persons that may occupy an Affordable Unit shall be based on unit size: Unit Size Household Size 0 bedroom(studio) 2 persons 1 bedroom 3 persons 2 bedrooms 5 persons (c) the Household shall not permit or suffer anything to be done or kept upon the premises which will increase the rate of insurance on any building, or on the contents thereof, and shall not impair the structural integrity thereof obstruct or interfere with the rights of other occupants, or annoy such occupants by unreasonable noises or otherwise, nor shall any Household commit or permit any nuisance on the premises or fail to keep the premises free of rubbish, clippings, and trash or commit or suffer any illegal act to be committed thereon; (d) The Household shall not sublease any or all parts of the Affordable Unit without prior written approval from Covenantor and Covenantee; (e) The Household shall comply with all of the lawful requirements of all governmental authorities with respect to the premises; (f) No person shall be permitted to occupy the premises for transient or hotel purposes; and (g) The Household shall comply in all respects with this Declaration and any failure by the Household to comply with the terms of this Declaration shall be a default under the Household's lease or rental agreement. 12-3446/84271 -5- 4. Covenants for Benefit of Housing Authority. All covenants without regard to technical classification or designation shall be binding for the benefit of the Covenantee and such covenants shall run in favor of Covenantee for the entire period during which time such covenants shall be in force and effect. The Covenantee, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any such action at law or suits in equity or other proper legal proceedings to enforce and to cure such breach to which it or any other beneficiaries of these covenants may be entitled during the term specified for such covenants, except the covenants against discrimination which may be enforced at law or in equity at any time in perpetuity. 5. Binding on Successors and Assigns. The covenants and agreements established in this Declaration shall, without regard to technical classification and designation, be binding on Covenantor and any successor to Covenantor's right, title, and interest in and to all or any portion of the Project, for the benefit of and in favor of the Housing Authority of the City of Huntington Beach. All the covenants contained in this Declaration shall remain in effect for the Affordability Period, and shall automatically terminate and be of no further force or effect after such time. Upon expiration of the Affordability Period, Covenantee agrees to cooperate with Covenantor, at no cost to Covenantee in removing this Declaration of record from the Subject Property. 6. Counterparts. This Agreement may be executed in a number of counterparts, each of which shall be an original, but all of which shall constitute one and the same document. 7. Notices. All notices which are allowed or required to be given hereunder shall be in writing and (1) shall be deemed given and received when personally delivered or(2) shall be sent by registered or certified mail or overnight mail service, addressed to the applicable designated person by one party to the other in writing, and shall be deemed received on the second business day after such mailing. If to the Housing Authority: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attn: City Manager Tel.No.: (714) 536-5575 Fax No.: (714) 536-5233 If to the Property Owner: Red Oak Investments 2101 Business Center Drive, Suite 230 Irvine, CA 92612 Attn: Alex Wong Tel.No.: (714) 342-2502 Fax No.: (949) 733-2005 12-3446/84271 -6- Archstone Huntington Beach College Park LLC 3 MacArthur Place, 6th Floor Santa Ana, CA 92707-5902 Attn: Ken Keefe Tel.No.: (714) 689-7014 Fax No.: (714) 460-8571 Archstone Huntington Beach College Park LLC c/o Archstone 9200 East Panorama Circle, Suite 400 Englewood, CO 80112 Attn: Michael Shomo Tel.No.: (303) 708-6954 Fax No.: (720) 873-6358 Allen Matkins Three Embarcadero Center, 12th Floor San Francisco, California 94111-4074 Attn: Sonia J. Ransom Tel.No.: (415) 837-1515 Fax No.: (415) 837-1516 8. Applicable Law. (a) If any provision of this Agreement or portion thereof, or the application of any provision to any person or circumstances, shall to any extent be held invalid, inoperative, or unenforceable,the remainder of this Agreement, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby and it shall not be deeded that any such invalid provision affects the consideration for this Agreement; and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (b) This Agreement shall be construed in accordance with the laws of the State of California and all applicable HUD Housing Quality Standards and City Codes. [Signatures and Jurats to Follow] 12-3446/84271 -7- IN WITNESS WHEREOF, the Covenantee and Covenantor have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized as of the date set forth above. PROPERTY OWNER: COVENANTEE: ARCHSTONE HUNTINGTON BEACH THE HOUSING AUTHORITY OF THE COLLEGE PARK LLC, a Colorado CITY OF HUNTINGTON BEACH, limited liability company a California municipal corpo tion Mayor / ai rperson By: 60414- 1+. EPP"t,U4 print name ITS: (circle one)Chairman/Presiden ice President City 1 rk/ Housing Authority Clerk AND APPROVED AS TO FORM: By: C pr' name ITS: reer/ "CiAtom�y/Housing uthority Counsel (� Asst. Secretary der �yw Thomas S Reif INITIA AND APPROVED: Assistant Secrets .1) D ecto of larming and Building REVIEW D AND APPROVED 4 City manager/Exec uti ve Officer 12-3446/84271 -g- ACKNOWLEDGMENT State of California ) County of Cy ran ) On mtw-f jp, ?-p j Z , before me, Ali Gtx�lc� �niarl, �ukal+� (insert name of notary) Notary Public, personally appeared e.�j rrKniQL 1+ Eppe1dd uer- 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 thatli/"she/they—executed the same in ier/thoir-authorized capacity(ies);and that by k g er/their signature(a)-on the instrument the person(s�,—or the entity upon behalf of which the person(s)-tteted, 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. KALI GOGLANIAN Commission# 1924860 a -s Notary Public-California Z Orange County M Comm.Ex Tres Mar 9,2015 Signat e ACKNOWLEDGMENT Cv/o�c�la State of Ca�� ) County of G,,V4A6& ) On �, e�feyn dPi' before me, (insert name of notary) Notary Public,personally appeared nemm 4 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. 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. V '• JOAN `sue Signatur - '��e- � M' (Seal) m;CARNA AN /o �r ........ o.•:off, °oy F OF•CO�- /SS1ON EX %?F' 12-3446/84271 -9- ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On October 16, 2012, before me, P. L. Esparza, Notary Public, personally appeared Joan L. Flynn and Donald F. Hansen, Jr. who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons 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. P. L. ESPARZA WITNESS my hand and official seal. Commission# 1857021 Zre Notary Public-CaliforniazZOrange County My Comm.Expires Aug4,2013 f (Seal) (Notary Sign re) EXHIBIT A LEGAL DESCRIPTION PARCEL 1, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 211, PAGES 25 AND 26 OF PARCEL MAPS, RECORDS OF ORANGE, COUNTY, CALIFORNIA. EXCEPTING THEREFROM A PORTION THEREOF 50% OF A 100% OF ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER. HYDROCARBON SUBSTANCES IN, UNDER, OR THAT MAY BE PRODUCED OR RECOVERED FROM THAT PORTION OF SAID LAND BELOW A DEPTH OF 500 FEET FROM ITS SURFACE, WITH AND INCLUDING IN SUCH EXCEPTION AND RESERVATION, FOR THE BENEFIT OF THOSE ENTITLED 'THERETO, THE RIGHT AT ANY AND ALL TIMES TO ENTER UPON AND INTO ANY AND ALL PARTS OF THE PORTION OF SAID LAND: BELOW SUCH DEPTH OF 500 FEET FROM ITS SURFACE FOR THE PURPOSE OF EXPLORING AND DRILLING FOR, MINING, DEVELOPING, REMOVING AND EXTRACTING ANY AND ALL SUCH SUBSTANCES BY SLANT OR DIRECTIONAL DRILLING OR OTHER OPERATIONS FROM OTHER LAND, ENTERING INTO AND PENETRATING THE LAND THE SUBJECT HEREOF, ONLY BELOW SUCH DEPTH OF 500 FEET FROM ITS SURFACE BUT WITH (AND THERE SHALL BE) NO RIGHT UNDER SUCH EXCEPTION AND RESERVATION OF ENTRY UPON OR USE OF THE SURFACE OR SUBSURFACE TO A DEPTH OF 500 FEET BELOW THE SURFACE, AS RESERVED BY DORO'1 HY THAYER PECK, IN DEED RECORDED OCTOBER 1, 1959, IN BOOK 4907, PAGE 389 OF OFFICIAL RECORDS, CHARLES H. THATCHER AND TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA CORPORATION, ALL AS TRUSTEES OF THE TRUST UNDER WRITTEN DECLARATION THEREOF BY CARRY A. PECK, DATED DECEMBER 18, 1936, AS TO AN UNDIVIDED 25% OF SAID 100% INTEREST, AND BY DOROTHY T. PECK, A WIDOW, IN HER INDIVIDUAL CAPACITY, AS TO AN UNDIVIDED 25%OF SAID 100% INTEREST. ALSO EXCEPTING FROM THAT PORTION THEREOF LYING BELOW A DEPTH OF 500 FEET MEASURE,D VERTICALLY FROM THE CONTOUR OF THE SURFACE WITHOUT, HOWEVER, THE RIGHT OF ANY PURPOSE WHATSOEVER TO ENTER UPON, INTO OR 'THROUGH THE SURFACE OF SAID PROPERTY OR ANY PAR"I' THEREOF LYING BETWEEN SAID SURFACE OF 500 FEET BELOW SAID SURFACE, AS EXCEPTED IN THE GRANT DEED FROM SOUTHERN PACIFIC TRANSPORTATION COMPANY RECORDED JUNE 30, 1986 AS INSTRUMENT NO. 86-277355 OF OFFICIAL RECORDS. EXHIBIT B SITE PLAN rr k18rh,�t1"'• 1•�,u I I v� 9:"uR mr.lxn Lvaby RGOA -- -- Jew 3T -- �PNiik'!1 Reul&3uea::'asiing _ _ _ , FFFFI Fri �. G rl►ct. a� �: 4ll qe. I 4�tico rr 1�m I Resiid?67.i PaAing ' I P_jV l i I 42r. r I Tr•�t—n t ® 1N� �Vryh I I j N - Uli I j a ----- --� ,.w - 1 1 1 1 J-lJ �c % �• I 11 up, 2 44 rk a 4 r- =cc Iti,1N_ir R I e c L p y� Pry ?! II A pp -------------------- ' 6 VFHICa.s< �F.55�7RI'k'E R�_V.Z. (( x:s1+ o-s r EXHIBIT C 2012 QUALIFYING INCOME AND RENT SCHEDULE THE LOFTS APARTMENT PROJECT HUNTINGTON BEACH,CALIFORNIA I. 2012 Orange County Income Information Household Size HCD Median HUD Median 1 Person $59,700 2 Persons 68,250 3 Persons 76,750 4 Persons 85,300 85,300 5 Persons 92,100 II. Household Income Limits as Defined by the California Health&Safety Code Moderate Income (Section 50093) 1 Person $53,950 - $71,650 2 Persons 61,650 - 81,900 3 Persons 69,350 - 92,100 4 Persons 77,050 - 102,350 5 Persons 83,250 - 110,550 III. California Health&Safety Code Section 50053 Affordable Housing Cost Calculations Moderate Income Studio 1-Bdrm 2-Bdrm Benchmark Household Size 1 2 3 %of HCD Median Income 110% 110% 110% Household Income for Rent Calculation $65,670 $75,075 $84,425 %of Income Allotted to Gross Rent 30% 30% 30% Allowable Gross Rent $1,642 $1,877 $2,111 (Less)Utilities Allowance 28 39 47 Allowable Net Rent $1,614 $1,838 $2,064 Based on utilities published by OCHA 10/1/2011. Includes Gas: Cooking, Heating,Water Heater. Electric: Basic. Prepared by:Keyser Marston Associates,Inc. File name:Lofts Exh B 8 31 12;Inc Rent Ord. No. 3962 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on October 15,2012, and was again read to said City Council at a Regular meeting thereof held on November 5,2012, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Shaw, Harper, Dwyer, Hansen, Carchio, Bohr, Boardman NOES: None ABSENT: None ABSTAIN: None I,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on November 15,2012. In accordance with the City Charter of said City er^' Joan L. Flynn,Ci Clerk City Clerk and ex-officio Clerk hhk&b—A-Senior Deputy City Clerk of the City Council of the City of Huntington Beach, California