HomeMy WebLinkAboutTri-Pointe Homes, Inc. - 2013-03-04 Dept.ID ED 13-05 Page 1 of 2
Meeting Date:3/4/2013
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r CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 3/4/2013
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Bob Hall, Assistant City Manager
SUBJECT: Approve and authorize execution of Inclusionary Housing Agreements between
the City and Tri-Pointe Homes, Inc., for Housing Projects at 9191 Pioneer Drive
and.10251 Yorktown Avenue
Statement of Issue: The City Council is requested to approve two (2) Inclusionary Housing
Agreements for Tri-Pointe Homes Wardlow and Lamb residential projects.
Financial Impact: The inclusionary funds generated in these Agreements are allocated to the
approved AMCAL Oceana Project.
Recommended Action:
A) Approve Inclusionary Housing Agreement by and between City of Huntington Beach, "City"
and Tri-Pointe Homes, LLC. "Developer" for 9191 Pioneer Drive; and,
B) Approve Inclusionary Housing Agreement by and between City of Huntington Beach, "City"
and Tri-Pointe Homes, LLC. "Developer" for 10251 Yorktown Drive; and,
C) Authorize the Mayor and City Clerk to sign Agreements; and,
D) Authorize the City Manager to sign all related documents to effectuate these Agreements.
Alternative Action(s): Do not approve Agreements and direct staff as necessary.
Analysis: On November 19, 2012, the Planning Commission and City Council approved two
residential developments referred to as Wardlow School Site (Wardlow) and Lamb School Site
(Lamb). As part of the Wardlow and Lamb approvals, Tri-Pointe Homes was required to prepare
and submit Affordable Housing Agreements for approval by the City Council. The Conditions of
Approval allowed Tri-Pointe Homes to provide the required units to be offsite that were either new
construction or substantial rehabilitation and provided that the units must have recorded long-term
affordability covenants. The Lamb project, located at 10251 Yorktown, is required to provide 8.1
units. The Wardlow project, located at 9191 Pioneer Drive, is required to provide 4.9 units.
Tri-Pointe.Homes proposed to provide the units as part of the AMCAL Oceana Project located at
18151 Beach.Boulevard. On November 19, 2012, City Council approved an Affordable Housing
Agreement for the Oceana Project which approved $800,000 in HOME Federal Funding and
affordable covenants of 55 years on all 91 affordable units. The 91-unit Oceana Project was
approved by the Planning and Building Department on February 1, 2013.
Item 6. - 1 HB -70
Dept. ID ED 13-05 Page 2 of 2
Meeting Date:3/4/2013
The Inclusionary Agreements require Tri-Pointe to deposit into escrow the funding for the affordable
units for a total of$2 million dollars ($753,846 for Wardlow and $1,246,154 for Lamb). If the
developer, Tri-Pointe, closes escrow on either project, the funds will be transferred to the City and
the City will apply the money to the Oceana Project as discussed in the AIVICAL Affordable Housing
Agreement. Tri-Pointe is responsible for all escrow fees and charges. If Tri-Pointe does not
commence construction of either project, the money will be returned to Tri-Pointe.
Environmental Status: Projects have been approved by the Planning Commission and City
Council.
Strategic Plan Goal:
Enhance Economic Development
Attachment(s):
1. "Inclusionary Housing Agreement by and between City of Huntington Beach, "City" and Tri-
Pointe Homes, LLC. "Developer" for 9191 Pioneer Drive"
2. "Inclusionary Housing Agreement by and between City of Huntington Beach, "City" and Tri-
Pointe Homes, LLC. "Developer" for 10251 Yorktown Drive" .
HB -71- Item 6. - 2
ATTAC H M E N T # 1
INCLUSIONARY HOUSING AGREEMENT
by and between
CITY OF HUNTINGTON BEACH,
"CITY"
and
TRI POINTE HOMES,INC.,
"DEVELOPER".
9191 Pioneer Drive
INCLUSIONARY HOUSING AGREEMENT
This INCLUSIONARY HOUSING AGREEMENT (this "Agreement") is entered into as
of February 14, 2013 ("Effective Date"), by and between THE CITY OF HUNTINGTON
BEACH, a charter city of the State of California ("City"), and TRI POINTE HOMES, INC., a
Delaware corporation ("Developer"). The City and Developer hereby covenant and agree as
follows:
ARTICLE 1. SUBJECT OF AGREEMENT
The Developer seeks to develop a project upon certain real property located at 9191
Pioneer Drive and more particularly described in the legal description attached as Attachment
No. 1 (the "Property"). The proposed development will consist of forty-nine (49) detached
market rate single-family residential units(the"Project").
The City Council of the City approved Tentative Tract Map 17239 on November 19,
2012, imposing conditions of approval on the Project, including a requirement to enter into this
Affordable Housing Agreement. Pursuant to Section 230.26 of the Zoning Code and the
Conditions of Approval, this Agreement provides for the Developer to fund construction for the
development by the City of 4.9 Affordable Units at an offsite location pursuant to this
Agreement.
It is anticipated that the City will utilize the Developer Funds to assist the development of
up to ninety-nine (99) units of affordable rental housing for very low and low income persons
and families and one (1) manager's unit, pursuant to an Affordable Housing Agreement between
the City and Amcal Multi-Housing, Inc., approved by the City on November 19, 2012, and dated
as of November 19,2012.
1.1 Definitions
"Affordable Housing Trust Fund" shall mean the fund held by the City for expenditure in
accordance with paragraph E.6. of Section 230.26 of the Zoning Code.
"Affordable Unit" means a residential unit restricted for occupancy by qualifying Low
and Moderate Income Households at Affordable Rent, in accordance with California Health and
Safety Code Section 50053(b)(4).
"City"means the City of Huntington Beach.
"City Manalzer" means the City Manager of the City. Unless otherwise provided herein
or unless the City otherwise notifies the Developer, any matter to be approved(or disapproved)
by the City or any action to be taken by the City pursuant to this Agreement, shall be approved
(or disapproved) or shall be taken, as the case may be, by the City Manager or designee.
Page 1
"Developer" means TRI Pointe Homes, Inc., a Delaware corporation, and any of its
successors and assigns to the Property or portion thereof which becomes a Developer pursuant to
this Agreement.
"Developer Funds" shall mean the funds to be provided by the Developer in the amount
set forth in this Agreement as an alternative to the development of inclusionary Affordable Units
on the Property.
"Escrow Account" shall mean the escrow account established with the Escrow Agent for
the Developer's payment of the Developer Funds.
"Escrow Agent" shall mean First American Title Company, or another escrow company,
mutually acceptable to the City and the Developer.
1.2 Parties to the Agreement.
1.2.1 The City
The addresses of the City for purposes of receiving notices pursuant to this Agreement
are:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: City Manager
Tel.No.: (714) 536-5575
Fax No.: (714) 536-5233
with a copy to:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: City Attorney
Tel.No.: (7144) 536-5555
Fax No.: (714) 374-1590
"City" as used in this Agreement includes the City of Huntington Beach and any assignee of or
successor to its rights, powers and responsibilities.
1.2.2 Developer
Developer executing this Agreement is a Delaware corporation. The addresses of
Developer for purposes of receiving notices pursuant to this Agreement are:
Page 2
TRI Pointe Homes, Inc.
19520 Jamboree Road, Suite 200
Irvine, CA 92612
Attn: Tom Grable, Vice President of Project Management
Tel. No. (949)478-8674
Fax.No. (949) 478-8601
with a copy to:
Jackson DeMarco Tidus Peckenpaugh
2030 Main Street, 12t'Floor
Irvine,CA 92614
Attn: Gregory P. Powers,Esq.
Tel.No. (949) 851-7607
Fax.No. (949) 752-0597
"Developer" as used in this Agreement includes Developer and any assignee of or successor to
its rights, powers and responsibilities with regard to the Property under this Agreement as
expressly permitted by this Agreement.
1.3 Assignments and Transfers
1.3.1 Prior to Developer's payment in full of the Developer Funds, Developer's
assignment or transfer of any rights, duties or obligations under this Agreement, shall be subject
to the prior written approval of the City, which shall not be unreasonably withheld, conditioned
or delayed.
ARTICLE 2. PAYMENT OF DEVELOPER FUNDS
2.1 Amount
The amount of the Developer Funds is based upon the total number of new residential
units to be developed upon the Property and the number of Affordable Units to be provided off-
site. The parties agree that the number of Affordable Units to be provided off-site shall be 4.9
and the Developer Funds for the Project shall be SEVEN HUNDRED FIFTY-THREE
THOUSAND EIGHT HUNDRED FORTY-SIX DOLLARS ($753,846).
2.2 Escrow Account
The City will open the Escrow Account with the Escrow Agent. A single Escrow
Account will be established to consummate this Agreement and the Inclusionary Housing
Agreement between the City and Developer pertaining to the property located at 10251
Yorktown Avenue. The provisions of this Article. 2 shall constitute the City's and the
Developer's instructions to the Escrow Agent for the Developer Funds relating to 9191 Pioneer
Page 3
Drive, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon
the opening of the escrow. The City and the Developer shall provide such additional escrow
instructions consistent with this Agreement as shall be necessary. The Escrow Agent hereby is
empowered to act under such instructions, and upon indicating its acceptance thereof in writing,
delivered to the City and the Developer within five (5) days after opening of the escrow, the
Escrow Agent shall carry out its duties as Escrow Agent hereunder.
2.3 Deposit of Developer Funds
Within five (5) business days after the City notifies the Developer that it has opened the
Escrow Account, the Developer shall deposit the entire amount of the Developer Funds with the
Escrow Agent. All funds received in this escrow shall be deposited by the Escrow Agent in a
general escrow account with any state or national bank doing business in the State of California
and reasonably approved by the Developer and the City, and may be combined in such with
other escrow funds of the Escrow Agent.
2.4 Payment to City
Upon receiving written notice from Developer that it has closed escrow on its acquisition
of the Property, the Escrow Agent shall pay the Developer Funds to the City for deposit into the
City's Affordable Housing Trust Fund. Upon the payment of the Developer Funds to the City,
the Developer shall be deemed to have fully performed its obligations under this Agreement and
will have fully satisfied its affordable housing obligations in connection with the Project.
2.5 Release to Developer
Upon receiving written notice from Developer that it has elected not to close escrow on
its acquisition of the Property, the Escrow Agent shall return the Developer Funds to Developer.
In that event, the City's agreement to accept payment of a fee in lieu of including the mandatory
Affordable Units in the Project will be rescinded and of no further force or effect.
2.6 Escrow Fees and Costs
The Developer shall pay all escrow or cancellation fees which may be charged by Escrow
Agent and any other expenses or closing costs to carry out the closing of this transaction.
2.7 Communications
All communications from the Escrow Agent to the City or the Developer shall be directed
to the addresses set forth in Article I of this Agreement, and in the manner set forth in Section
4.1 of this Agreement for notices between the parties hereto.
Page 4
ARTICLE 3. DEFAULTS AND REMEDIES
3.1 Defaults- General
3.1.1 Failure or delay by City or Developer to perform any term or provision of
this Agreement to be performed by such party constitutes a default under this Agreement. The
party in default must immediately commence to cure, correct or remedy such failure or delay and
shall complete such cure, correction or remedy with reasonable diligence.
3.1.2 The complaining party shall give written notice of default to the party in
default. Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default. Any failures or delays by either party in asserting any of its
rights and remedies as to any default shall not operate as a waiver of any default or of any such
rights or remedies. Delays by either party in asserting any of its rights and remedies shall not
deprive either party of its right to institute and maintain any actions or proceedings which it may
deem necessary to protect assert or enforce any such rights or remedies.
3.1.3 If a monetary event of default occurs, prior to exercising any remedies
hereunder, the aggrieved party shall give the party in default written notice of such default. The
party in default shall have a period of fifteen (15) days after such notice is given within which to
cure the default.
3.1.4 If a non-monetary event of default occurs,prior to exercising any remedies
hereunder, the aggrieved party shall give the party in default notice of such default. If the default
is reasonably capable of being cured within sixty (60) days, the party in default shall have such
period to effect a cure prior to exercise of remedies by the aggrieved party. If the default is such
that it is not reasonably capable of being cured within sixty (60) days, and the party in default (i)
initiates corrective action within said period, and (ii) diligently, continually, and in good faith
works to effect a cure as soon as possible, then the party in default shall have such additional
time as is reasonably necessary to cure the default, not to exceed one hundred and twenty (120)
days.
3.2 Institution of Legal Actions
Subject to the notice and cure provisions of Section 3.1, in addition to any other rights or
remedies, either party may institute legal action to cure, correct or remedy any default, to obtain
the specific performance of obligations hereunder, to enjoin, abate or prevent any further
violation or default, or to obtain any other remedy allowed at law or equity consistent with the
purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the
County of Orange, State of California, in any other appropriate court of that county, or in the
United States District Court for the Central District of California.
Page 5
3.3 Applicable Law
The internal laws of the State of California, without reference to the principles governing
conflicts of laws, shall govern the interpretation and enforcement of this Agreement.
3.4 Rights and Remedies Are Cumulative
The rights and remedies of the parties are cumulative, and the exercise by either party of
one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
3.5 Damages
If either party defaults with regard to any of the provisions of this Agreement, the non-
defaulting party shall serve written notice of such default upon the defaulting party. If the
default is not cured within the time provided in Section 3.1, the defaulting party shall be liable to
the non-defaulting party for any damages caused by such default,.and the non-defaulting party
may thereafter (but not before) commence an action for damages against the defaulting party
with respect to such default. '
3.6 Specific Performance
If either party defaults with regard to any of the provisions of this Agreement, the non-
defaulting party shall serve written notice of such default upon the defaulting party. If the
default is not cured within the time provided in Section 3.1, the non-defaulting party, at its
option,may thereafter(but not before) commence an action for specific performance of the terms
of this Agreement pertaining to such default.
3.7 Attorney's Fees and Costs
If any action or proceeding is brought by either party against the other under this
Agreement,whether for interpretation, enforcement or otherwise, each party shall pay for its own
costs and expenses, including the fees of its attorney and any expert witnesses in such action or
proceeding. This provision shall also apply to any post judgment action by either party,
including without limitation efforts to enforce a judgment.
ARTICLE 4. GENERAL PROVISIONS
4.1 Notices
Formal notices, demands and communications between the City and Developer shall be
sufficiently given if delivered personally, or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the respective addresses of the City and Developer, as
provided in Section 1.2 hereof. Such notices, demands and communications, if given in person,
shall be deemed given when delivered, and, if given by mail, shall be deemed given three (3)
Page 6
business days after deposit in the mail. Such written notices, demands and communications may
be sent in the same manner to such other addresses as either parry may from time to time
designate by mail as provided in this Section 4.1.
4.2 Conflicts of Interest
4.2.1 No member, official or employee of the City shall have any personal
interest, direct or indirect, in this Agreement; nor shall any such member, official or employee
participate in any decision relating to this Agreement which affects his personal interests or the
interests of.any corporation, partnership or association in which he is, directly or indirectly,
interested.
4.2.2 Developer warrants that it has not paid or given, and will not pay or give,
any third parry any money or other consideration for obtaining this Agreement, other than
normal fees paid to Developer's independent contractors, attorneys, and consultants.
4.3 Non-liability of City/City Officials and Employees
No member, official, employee, attorney or consultant of the City shall be personally
liable to Developer, or any successor in interest of Developer, in the event of any default or
breach by the City or for any amount which may become due to Developer or to its successor, or
on any obligations under the terms of this Agreement.
4.4 Consents and Approvals
Except where this Agreement expressly provides that a party may withhold its approval
in its sole and absolute discretion, approvals required of the City or the Developer shall not be
unreasonably withheld or delayed.
Except as otherwise expressly provided in this Agreement, approvals or consents required
of the City shall be deemed granted by the written approval of the City Manager or designee.
Notwithstanding the foregoing, the City Manager or designee may, in his or her sole and
absolute discretion, refer to the governing board of the City any item requiring City approval.
ARTICLE 5. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
All waivers of the provisions of this Agreement must be in writing and signed by the
appropriate authorities of the City or the Developer, and all amendments hereto must be in
writing and signed by the appropriate authorities of the City and the Developer. This Agreement
and any provisions hereof may be amended by mutual written agreement by Developer and City
and such amendment shall not require the consent of any other fee owner, tenant, lessee,
easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other
person or entity having an interest in the Property, except as otherwise expressly provided in this
Agreement.
Page 7
This Agreement may be executed in counterparts and when so executed, each such
counterpart will constitute an original document and such counterparts will constitute one and
the same agreement.
[SIGNATURES ON NEXT TWO PAGES]
Page 8
IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of
the date first set forth hereinabove.
CITY OF HUNTINGTON BEACH
Date: By:
Mayor
ATTEST:
jv�
Cit V lerk
2'K6U
REVIEWED AND
APPROVED AS TO FORM:
City Attorney
By: rn
cvlennifer McGrath
APPROVED AS TO FORM:
KANE, BALLMER& BERKMAN
By: ALZ
City Special Counsel
Page S-1
TRI POINTE HOMES, INC., a Delaware
corporation
Date: Z I ( LA I ( � By:
Nam : I h omas J. Mitchell
Its: sident
2- L r
Date: l / �3 By:
Nam: THOMAS G. (.RARI f=
Its: VICE PRESIDPNIT
Page S-2
ATTACHMENT NO. 1
LEGAL DESCRIPTION AND MAP
[Immediately Follows This Page]
BEING A PORTION OF LOT 8G OF TRACT NO. 4493, AS SHOWN ON A MAP FILED IN BOOK 159, PAGE5
7 THROUGH 11 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
ORANGE COUNTY,CALIFORNIA.AND A PORTION Of THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4 OF
SECTION G. IN TOWNSHIP G SOUTH, RANGE•10 WEST, IN'THE RANCHO LA5 BOLEA5, IN THE CITY OF
HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF GALftRNIA, AS PER'MAP FILED IN BOOK 51, PAGE
14 OF MISCELLANEOUS MAPS, IN THE, OFFICE OF THE GOUNTY'RECORDER 0f SAID COUNTY DESCRIBED
A5'FOLLOWS:
COMMENCING AT THE SOUTHWEST GONER OF SAID LOT 8G; THENCE NORTH 89'31'53' EAST A
U15TANCE OF 433.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00'30'50' WEST A
015TANGE OF GO3.06 FEET TO THE NORTH LINE OF THE LAND DESCRIBED IN THE DEED RECORDED
DEGEMBER 28, 19G2 IN BOOK G375, PAGE 253 IN OFFICIAL RECORDS SAID LINE AL50 BEING.THE
SOUTH LINE OF TRACT NO, GO80 A5 SHOWN ON THE MAP FILED IN BOOK 330, PAGES 3 THROUGH 4
INGLU5[VE OF MISCELLANEOUS MAPS IN THE OFFICE OF'SAID COUNTY IzEGORDER; THENCE NORTH
89'32'5G' EAST ALONG THE NORTH LINE OF SAID DEED A V15TANGE OF G.08.03 FEET TO THE WEST
LINE OF THE LANQ 1)E50RIBED IN THE DEED TO THE ORANGE GOLNTY FLOOD CONTROL D15TRIGT
RECORDED MARCH IG, 19G1 IN BOOK 5G57, PAGE G74 OF OFFICIAL RECORDS 5AID LINE.ALSO BEING
THE EAST LINE'OF SAID LOT SG; THENCE ALONG SAID WEST AND EAST LINES THE FOLLOWING
GOUR5E5 50UTH 094018' EAST A DISTANCE OF 193.15 FEET: THENCE SOUTH OO'3G'OS' EA51 A
015TANGE OF 319.92 FEET: THENCE SOUTH B97352' WEST'A DISTANCE OF 5.00 FEET: THENCE 5OUTH
OO'3G'08' EAST A DI5TANCE or.39.59 FEET TO THE NORTHERLY CORNER OF LOT 14 .OF SAID.TRACT
4493; THENCE SOUTH G07958' WEST ALONG THE NORTH LINE OF SAID LOT 14 A D15TANCE OF
125IG FEET TO A POINT ON A NON TANGENT CURVE,GONGAVE SOUTHERLY HAVING A RADIUS OF
70.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 44.5278' EAST SAID POINT BEING ON THE
50UTH LINE OF SAID LOT 8G, SAID LINE AL50 BEING THE NORTH RIGHT OF WAY LINE OF PIONEER
DRIVE BEING GO FEET IN WIDTH; THENCE ALONG THE SAID SOUTH LINE THE FOLLOWING GOUR5E5
NORTHWESTERLY ALONG SAID CURVE THROUGH AN ANGLE OF 55'02'33' A D15TANDE OF G725 FEET;
THENCE SOUTH 79'4945' WE5T A DISTANCE OF 50.00 FEET TO THE BEGINNING OF A TANGENT CURVE
CONCAVE NORTHERLY HAVING A RADIUS OF 40.00 FEET; THENCE ALONG SAID CURVE THROUGH AN
ANGLE OF O9'42'08' A DISTANCE OF G.77 FEET;THENCE SOUTH 89'31'53' WEST A DISTANCE OF
37G,49 FEET TO THE TRUE POINT OF BEGINNING.
SAID DE5GRIPTION CONTAINS 8.354 ACRES MORE OR LE55
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CIVIL ENGINEERS•LAND SURVEYORS-PLANNERS
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(949)660.0110 FAX:6604418 Engr. J.W. Chk'd " J.W. Sheet 1 Of 1
221
TRACT 6079 fAD LINED IV TRACT 6080
2 2 2 4 M.A. 2 0 -4 M.M. 22
25 26 27 28 29 30 31 32 33 31 30 . 29 28 27 26 25 24 23•
N 89'3 '56" E 1(41.5 '
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1N BOOK 6375, PAGE 253, O.R.
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N 89 31'S3 E 809.99' _ 14
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30 29 28 27 26 25. 24 23 22 21 20 19 18 17 16 15 12
UNE BEARING DISTANCE ��ypL LA�yp
Li S 00'40'18" E 193.15'
l2 S 00'36'08" E 319.92
L3 S 89'23V' W 5.00'
L4 S 0935'08" E 39,59'
L5 S 60'29'58" W •125.76' No, 7914
L5 S 79'49'45' W 50,00' J, Exp. 12-31-05
CURVE DELTA RADIUS LENGTH
C1 55'02'33" 70.00' 67.25'
C2 ' 09'42'08" 40.00' 6.77,
SCALE:1"=200'
ALDEN&
SsoakTES SKETCH TO ACCOMPANY
A LEGAL DESCRIPTION
CIVIL ENGINEERS-LAND SURVEYORS•PLANNERS Date 09--28-05
2552 WHITE ROAD,SUITE BHRVINE,CA 92614-6236 W.0. NO. 1498-202-'-001
(949)660-0116 FAX:660-0418 Engr, J.W, Chk'd • J.W. Sheet 1 Of 1
ATTACHMENT #2
INCLUSIONARY HOUSING AGREEMENT
by and between
CITY OF HUNTINGTON BEACH,
"CITY"
and
TRI POINTE HOMES, INC.,
"DEVELOPER"
10251 Yorktown Avenue
INCLiJSIONARY HOUSING AGREEMENT
This INCLUSIONARY HOUSING AGREEMENT(this "Agreement") is entered into as
of February 14,2013 ("Effective Date"), by and between THE CITY OF HUNTINGTON
BEACH, a charter city of the State of California("City"), and TRI POINTE HOMES, INC., a
Delaware corporation ("Developer"). The City and Developer hereby covenant and agree as
follows:
ARTICLE 1. SUBJECT OF AGREEMENT
The Developer seeks to develop a project upon certain real property located at 10251
Yorktown Avenue and more particularly described in the legal description attached as
Attachment No. 1 (the "Property"). The proposed development will consist of eighty-one (81)
detached market rate single-family residential units (the "Project").
The City Council of the City approved Tentative Tract Map 17238 on November 19,
2012, imposing conditions of approval on the Project, including a requirement to enter into this
Affordable Housing Agreement. Pursuant to Section 230.26 of the Zoning Code and the
Conditions of Approval, this Agreement provides for the Developer to fund construction for the
development by the City of 8.1 Affordable Units at an offsite location pursuant to this
Agreement.
It is anticipated that the City will utilize the Developer Funds to assist the development of
up to ninety-nine (99) units of affordable rental housing for very low and low income persons
and families and one (1) manager's unit, pursuant to an Affordable Housing Agreement between
the City and Amcal Multi-Housing, Inc., approved by the City on November 19, 2012, and dated
as of November 19,2012.
1.1 Definitions
"Affordable Housing Trust Fund" shall mean the fund held by the City for expenditure in
accordance with paragraph E.6. of Section 230.26 of the Zoning Code.
"Affordable Unit" means a residential unit restricted for occupancy by qualifying Low
and Moderate Income Households at Affordable Rent, in accordance with California Health and
Safety Code Section 50053(b)(4).
"Liff"means the City of Huntington Beach.
"City Manager" means the City Manager of the City. Unless otherwise provided herein
or unless the City otherwise notifies the Developer, any matter to be approved (or disapproved)
by the City or any action to be taken by the City pursuant to this Agreement, shall be approved
(or disapproved)or shall be taken, as the case may be, by the City Manager or designee.
Page 1
"Developer" means TRI Pointe Homes, Inc., a Delaware corporation, and any of its
successors and assigns to the Property or portion thereof which becomes a Developer pursuant to
this Agreement.
"Developer Funds" shall mean the funds to be provided by the Developer in the amount
set forth in this Agreement as an alternative to the development of inclusionary Affordable Units
on the Property.
"Escrow Account" shall mean the escrow account established with the Escrow Agent for
the Developer's payment of the In Lieu Fee.
"Escrow Agent" shall mean First American Title Company, or another escrow company
mutually acceptable to the City and the Developer.
1.2 Parties to the Agreement.
1.2.1 The City
The addresses of the City for purposes of receiving notices pursuant to this Agreement
are:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: City Manager
Tel.No.: (714) 536-5575
Fax No.: (714) 536-5233
with a copy to:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: City Attorney
Tel.No.: (714) 536-5555
Fax No.: (714) 374-1590
"City" as used in this Agreement includes the City of Huntington Beach and any assignee of or
successor to its rights,powers and responsibilities.
1.2.2 Developer
Developer executing this Agreement is a Delaware corporation. The addresses of
Developer for purposes of receiving notices pursuant to this Agreement are:
Page 2
TRI Pointe Homes, Inc.
19520 Jamboree Road, Suite 200
Irvine, CA 92612
Attn: Tom Grable,Vice President of Project Management
Tel.No. (949)478-8674
Fax.No. (949) 478-8601
with a copy to:
Jackson DeMarco Tidus Peckenpaugh
2030 Main Street, 12th Floor
Irvine, CA 92614
Attn: Gregory P. Powers, Esq.
Tel.No. (949) 851-7607
Fax.No. (949) 752-0597
"Developer" as used in this Agreement includes Developer and any assignee of or successor to
its rights, powers and responsibilities with regard to the Property under this Agreement as
expressly permitted by this Agreement.
1.3 Assignments and Transfers
1.3.1 Prior to Developer's payment in full of the Developer Funds, Developer's
assignment or transfer of any rights, duties or obligations under this Agreement, shall be subject
to the prior written approval of the City, which shall not be unreasonably withheld, conditioned
or delayed.
ARTICLE 2. PAYMENT OF DEVELOPER FUNDS
2.1 Amount
The amount of the Developer Funds is based upon the total number of new residential
units to be developed upon the Property and the number of Affordable Units to be provided off-
site. The parties agree that the number of Affordable Units to be provided off-site shall be 8.1
and the Developer Funds for the Project shall be ONE MILLION TWO HUNDRED FORTY-
SIX THOUSAND ONE HUNDRED FIFTY-FOUR DOLLARS ($1,246,154).
2.2 Escrow Account
The City will open the Escrow Account with the Escrow Agent. A single Escrow
Account will be established to consummate this Agreement and the Inclusionary Housing
Agreement between the City and Developer pertaining to the property located at 9191 Pioneer
Drive. The provisions of this Article 2 shall constitute the City's and the Developer's instructions
to the Escrow Agent for the Developer Funds relating to 10251 Yorktown Avenue, and a
duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of
Page 3
the escrow. The City and the Developer shall provide such,additional escrow instructions
consistent with this Agreement as shall be necessary. The Escrow Agent hereby is empowered to
act under such instructions, and upon indicating its acceptance thereof in writing, delivered to the
City and the Developer within five (5) days after opening of the escrow, the Escrow Agent shall
carry out its duties as Escrow Agent hereunder.
2.3 Deposit of Developer Funds.
Within five (5) business days after the City notifies the Developer that it has opened the
Escrow Account, the Developer shall deposit the entire amount of the Developer Funds with the
Escrow Agent. All funds received in this escrow shall be deposited by the Escrow Agent in a
general escrow account with any state or national bank doing business in the State of California
and reasonably approved by the Developer and the City, and may be combined in such with
other escrow funds of the Escrow Agent.
2.4 Payment to City
Upon receiving written notice from Developer that it has closed escrow on its acquisition
of the Property, the Escrow Agent shall pay the Developer Funds to the City for deposit into the
City's Affordable Housing Trust Fund. Upon the payment of the Developer Funds to the City,
the Developer shall be deemed to have fully performed its obligations under this Agreement and
will have fully satisfied its affordable housing obligations in connection with the Project.
2.5 Release to Developer
Upon receiving written notice from Developer that it has elected not to close escrow on
its acquisition of the Property,the Escrow Agent shall return the Developer Funds to Developer.
In that event, the City's agreement to accept payment of a fee in lieu of including the mandatory
Affordable Units in the Project will be rescinded and of no further force or effect.
2.6 Escrow Fees and Costs
The Developer shall pay all escrow or cancellation fees which may be charged by Escrow
Agent and any other expenses or closing costs to carry out the closing of this transaction.
2.7 Communications
All communications from the Escrow Agent to the City or the Developer shall be directed
to the addresses set forth in Article I of this Agreement, and in the manner set forth in Section
4.1 of this Agreement for notices between the parties hereto.
Page 4
ARTICLE 3. DEFAULTS AND REMEDIES
3.1 Defaults-General
3.1.1 Failure or delay by City or Developer to perform any term or provision of
this Agreement to be performed by such party constitutes a default under this Agreement. The
party in default must immediately commence to cure, correct or remedy such failure or delay and
shall complete such cure, correction or remedy with reasonable diligence.
3.1.2 The complaining party shall give written notice of default to the party in
default. Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default. Any failures or delays by either party in asserting any of its
rights and remedies as to any default shall not operate as a waiver of any default or of any such
rights or remedies. Delays by either party in asserting any of its rights and remedies shall not
deprive either party of its right to institute and maintain any actions or proceedings which it may
deem necessary to protect assert or enforce any such rights or remedies.
3.1.3 If a monetary event of default occurs, prior to exercising any remedies
hereunder, the aggrieved party shall give the party in default written notice of such default. The
party in default shall have a period of fifteen (15) days after such notice is given within which to
cure the default.
3.1.4 If a non-monetary event of default occurs, prior to exercising any remedies
hereunder,the aggrieved party shall give the party in default notice of such default. If the default
is reasonably capable of being cured within sixty (60) days, the party in default shall have such
period to effect a cure prior to exercise of remedies by the aggrieved party. If the default is such
that it is not reasonably capable of being cured within sixty (60) days, and the party in default (i)
initiates corrective action within said period, and (ii) diligently, continually, and in good faith
works to effect a cure as soon as possible, then the party in default shall have such additional
time as is reasonably necessary to cure the default, not to exceed one hundred and twenty (120)
days.
3.2 Institution of Legal Actions
Subject to the notice and cure provisions of Section 3.1, in addition to any other rights or
remedies, either party may institute legal action to cure, correct or remedy any default, to obtain
the specific performance of obligations hereunder, to enjoin, abate or prevent any further
violation or default, or to obtain any other remedy allowed at law or equity consistent with the
purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the
County of Orange, State of California, in any other appropriate court of that county, or in the r
United States District Court for the Central District of California.
Page 5
3.3 Applicable Law
The internal laws of the State of California, without reference to the principles governing
conflicts of laws, shall govern the interpretation and enforcement of this Agreement.
3.4 Rights and Remedies Are Cumulative
The rights and remedies of the parties are cumulative, and the exercise by either party of
one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
3.5 Damages
If either party defaults with regard to any of the provisions of this Agreement, the non-
defaulting party shall serve written notice of such default upon the defaulting party. If the
default is not cured within the time provided in Section 3.1, the defaulting party shall be liable to
the non-defaulting party for any damages caused by such default, and the non-defaulting party
may thereafter (but not before) commence an action for damages against the defaulting party
with respect to such default.
3.6 Specific Performance
If either party defaults with regard to any of the provisions of this Agreement, the non-
defaulting party shall serve written notice of such default upon the defaulting party. If the
default is not cured within the time provided in Section 3.1, the non-defaulting party, at its
option, may thereafter(but not before) commence an action for specific performance of the terms
of this Agreement pertaining to such default.
3.7 Attorney's Fees and Costs
If any action or proceeding is brought by either party against the other under this
Agreement,whether for interpretation, enforcement or otherwise, each party shall pay for its own
costs and expenses, including the fees of its attorney and any expert witnesses in such action or
proceeding. This provision shall also apply to any post judgment action by either party,
including without limitation efforts to enforce a judgment.
ARTICLE 4. GENERAL PROVISIONS
4.1 Notices
Formal notices, demands and communications between the City and Developer shall be
sufficiently given if delivered personally, or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the respective addresses of the City and Developer, as
provided in Section 1.2 hereof. Such notices, demands and communications, if given in person,
shall be deemed given when delivered, and, if given by mail, shall be deemed given three (3)
Page 6
business days after deposit in the mail. Such written notices, demands and communications may
be sent in the same manner to such other addresses as either party may from time to time
designate by mail as provided in this Section 4.1.
4.2 Conflicts of Interest
4.2.1 No member, official or employee of the City shall have any personal
interest, direct or indirect, in this Agreement; nor shall any such member, official or employee
participate in any decision relating to this Agreement which affects his personal interests or the
interests of any corporation, partnership or association in which he is, directly or indirectly,
interested.
4.2.2 Developer warrants that it has not paid or given, and will not pay or give,
any third party any money or other consideration for obtaining this Agreement, other than
normal fees paid to Developer's independent contractors, attorneys, and consultants.
4.3 Non-liability of City/City Officials and Employees
No member, official, employee, attorney or consultant of the City shall be personally
liable to Developer, or any successor in interest of Developer, in the event of any default or
breach by the City or for any amount which may become due to Developer or to its successor, or
on any obligations under the terms of this Agreement.
4.4 Consents and Approvals
Except where this Agreement expressly provides that a party may withhold its approval
in its sole and absolute discretion, approvals required of the City or the Developer shall not be
unreasonably withheld or delayed.
Except as otherwise expressly provided in this Agreement, approvals or consents required
of the City shall be deemed granted by the written approval of the City Manager or designee.
Notwithstanding the foregoing, the City Manager or designee may, in his or her sole and
absolute discretion, refer to the governing board of the City any item requiring City approval.
ARTICLE 5. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
All waivers of the provisions of this Agreement must be in writing and signed by the
appropriate authorities of the City or the Developer, and all amendments hereto must be in
writing and signed by the appropriate authorities of the City and the Developer. This Agreement
and any provisions hereof may be amended by mutual written agreement by Developer and City
and such amendment shall not require the consent of any other fee owner, tenant, lessee,
easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other
person or entity having an interest in the Property, except as otherwise expressly provided in this
Agreement.
Page 7
This Agreement may be executed in counterparts and when so executed, each such
counterpart will constitute an original document and such counterparts will constitute one and
the same agreement.
[SIGNATURES ON NEXT TWO PAGES]
Page 8
IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of
the date first set forth hereinabove.
CITY OF HUNTINGTON BEACH
' L
Date: 7 , O /3 By: e4xo�j
Mayor
ATTEST:
dify Clerk �go
REVIEWED AND
APPROVED AS TO FORM:
City Attorney
f r
By: -
,re%Jennifer McGrath
APPROVED AS TO FORM:
KANE, BALLMER& BERKMAN
By: �1 �
City Special Counsel
Page S-1
TRI POINTE HOMES, INC., a Delaware
corporation
Date: By:
Name: Thomas
I Mitchell
Its: President
Date: y
Name: THOMAS G. GRABLE
Its: VICE PRESIDENT
Page S-2
ATTACHMENT NO. 1
LEGAL DESCRIPTION AND MAP
[Immediately Follows This Page]
BEING A PORTION OF'THE SOUTHEAST 1/4 AND THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF
SECTION 5, IN TOWNSHIP G SOUTH, RANGE 10 WEST, IN THE RANCHO LA5 BOL5A5, IN THE CITY OF
HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF-CALIFORNIA, AS PER MAP FILED IN BOOK 51, PAGE
12 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED
AS FOLLOWS:
COMMENGING AT THE WE5T 1/4 CORNER OF SAID 5EGTION 5, SAID POINT AL50 BEING THE
GENTERLINE INTER5EGTION OF BROOKHUR5T STREET AND YORKTOWN AVENUE; THENCE NORTH 88'5451'
EAST ALONG THE SOUTH LINE OF SAID NORTHWEST 1/4, A DISTANCE Of 722.01 FEET TO THE
SOUTHEAST GORIER OF TRACT 4305 AS SHOWN ON THE MAP FILED IN BOOK 1G4, PAGES 12
THROUGH 18 INGLU51VE OF MI5GELLANEOU5 MAPS IN THE OFFICE OF THE GOUNTY RECORDER-OF SAID
COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENGE NORTH 0119'35" WEST ALONG THE
EAST LINE OF SAID TRACT 4305, A D151ANGE OF 40.00 FEET TO A LINE THAT 15 PARALLEL WITH-
AND 40.00 FEET NORTHERLY OF SAID SOUTH LINE Or THE NORTHWEST 1/4; THENCE NORTH 865451'
EAST 228.00 FEET ALONG SAID PARALLEL LINE TO A LINE THAT 15 PARALLEL WITH AND 22 m FEET
EASTERLY OF THE EAST LINE OF SAID TRACT 4305; THENGE NORTH 0119'35' WEST 49G.45 FEET
ALONG SAID PARALLEL LINE, TO A LINE THAT IS PARALLEL WITH AND 2GO.00 FEET SOUTHERLY.OF THE
SOUTHERLY LINE OF SAID TRAGT 4305; THENCE SOUTH 88'52'DB' WEST 22B.DO FEET ALONG SAID
PARALLEL LINE TO THE EAST LINE OF SAID TRACT 4305; THENCE NORTH 0119'35'. WEST ALONG SAID
EAST LINE A DISTANCE OF 20.00 FEET TO SAID SOUTHERLY LINE; THENCE NORTH 88'52'08' EAST
ALONG SAID SOUTHERLY LINE A DISTANCE OF G01.57 FEET TO THE WESTERLY LINE OF TRACT 4705
FILED IN BOOK P-A.'PAGE5 10 THROUGH 12 OF M15GELLANEOU5 MAPS IN THE OFFIGE OF THE GOUNTY
RECORDER OF SAID COUNTY; THENCE 50UTH 017421' EAST A DISTANCE OF 0.11 FEET TO THE
SOUTHWESTERLY CORNER OF SAID TRACT 4708; THENCE ALONG THE SOUTHERLY AND WESTERLY LINES
Of 5AID TRACT 470E THE FOLLOWING TWO COURSES; NORTH 88'54'51' EAST A DISTANCE OF 215.45
FEET; SOUTH 01'24'2O' EAST 79G.G4 FEET TO THE SOUTH LINE OF SAID NORTHWEST 1/4; THENCE
SOUTH 8854'51' WEST ALONG SAID SOUTH LINE A 0I5TANGE OF 82113 FEET TO THE TRUE POINT OF
BEGINNING.
I
SAID DE50RIPTION CONTAINS 12.407 ACRES MORE OR LE55
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No. 7914
s Exp. 12-31--05 Q
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ALDEN &
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CIVIL ENGINEEP.S-- LAND SURVEYORS - PLANNERS
2552 W TE ROAD. SUITE B 'IRVINE, CA 92614-6236 W.O. No. 1498-202-001 date 11-02-05'
(949) 660-0110 FAX: 660-0418 1 Engr. J.W. Chk'd J.W. Sheet 1 Of 1
I
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SECTION 5, T6S, R10W
IN THE RANCHO LAS BOLSAS
P.O.C. QNpL LAND
LINE BEARING. DISTANCE No. 7914
L1 S 88'52'0T W 228.00' Ezp, 12--31-05
L2 N 8954*51" E 228.00' tp �Q
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SCALE:1"=260'
V% DEN & -
SSOCIATES SKETCH TO ACCOMPANY
A LEGAL DESCRIPTION
CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
2552 WHITE ROAD, SUITE B •IRVINE, CA 92614-6236 W.O. No. 1498-•202-001 Date 1 1—02-05
(949) 660-OIiO RAY.: 660-0418 , En r, J.W. • Chk'd J.W. Sheet 1 Of 1
City of Huntington Beach
2000 Main Street ♦ Huntington Beach, CA 92648
1
(714) 536-5227 ♦ www.huntingtonbeachca.gov
Office of the City Clerk
Joan L. Flynn, City Clerk
March 5, 2013
TRI Pointe Homes, Inc.
19520 Jamboree Road, Suite 200
Irvine, CA 92612
Attn: Tom Grable, Vice President of Project Management
Dear Mr. Grable:
Enclosed for your records are duly executed duplicate originals of the "Inclusionary
Housing Agreement" between the City of Huntington Beach and Tri Pointe Homes for 9191
Pioneer Drive and 10251 Yorktown Avenue.
Sincerely,
n. L. Flynn, CMC
ty Clerk
JF:pe
Enclosure
G:fo11owup:agnnt1tr
Sister Cities: Anjo,Japan ♦ Waitakere, New Zealand
City Of Huntington Beach
M
2000 Main Street ♦ Huntington Beach, CA 92648
(714) 536-5227 o www.huntingtonbeachca.gov
e-rz ,909 P Office of the City Clerk
/ Joan L. Flynn, City Clerk
March 15, 2013
AMCAL Multi-Housing, Inc.
Attn: Mario Turner, VP Development
2082 Michelson Drive, Ste. 306
Irvine, CA 92612
Dear Mr. Turner:
Enclosed for your records is a copy of "Inclusionary Housing Agreement by and between
City of Huntington Beach and Tri Pointe Homes, Inc. for 9191 Pioneer Drive" and
"Inclusionary Housing Agreement by and between City of Huntington Beach and Tri Pointe
Homes, Inc. for 10251 Yorktown Avenue."
Sincerely,
Jo L. Flynn, CIVIC
City Clerk
JF:pe
Enclosure
&followup:agrmthr
Sister Cities: Anjo, Japan ♦ Waitakere,New Zealand