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HomeMy WebLinkAbout2010/07/27 Item 4 CITY COUNCIL AGENDA STATEMENT '\\f-" ;$ ~ CITY OF ~ CHULA VISTA July 27, 2010, Item~ ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY MANAGER TO EXECUTE A DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS BY AND BETWEEN THE CITY OF CHULA VISTA AND ROSINA GENPAR. LLC FOR A RENTAL HOUSING DEVELOPMENT TO BE LOCATED ON NEIGHBORHOOD R-30 IN OTAY RANCH VILLAGE 2 IN SATISFACTION OF THE CITY'S BALANCED COMMUNITIES POLICY SUBMITTED BY: ASSISTANT CITY MANAGER6~ DIRECTOR OF DHMENT SERVICES REVIEWED BY: CITY MANAGE~l 4/5THS VOTE: YES D NO I X I SUMMARY Rosina Genpm, LLC proposes to develop a two hundred seventy-eight (278) unit housing project located on Neighborhood R-30 in Otay Ranch Village 2 in the City of Chula Vista, of which twenty-eight (28) units will be operated as affordable rental housing for low and moderate income households, The 28 affordable units are being provided consistent with the Affordable Housing Program of the Otay Ranch Village 2 Sectional Planning Area (SPA) Plan and the City's Balanced Communities Policy, ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposed project was adequately covered in previously adopted Final Second Tier Enviromnental Impact Report, EIR 02-02, Thus, no further CEQA review or documentation is necessary, RECOMMENDATION Council adopt the resolution, 4-1 JULY 27,2010, Item-L Page 2 BOARDS/COMMISSION RECOMMENDA nON On March 3, 2008, the Design Review Committee (DRC) reviewed and approved the proposed site plans and architectural elevations for a 278-unit development known as Rosina Vista Apartments (DRC 07-12). DISCUSSION On May 23, 2006, the City approved the Otay Ranch Village 2 Sectional Planning Area (SPA) Plan by Resolution Number 2006-156. The Affordable Housing Program of the SPA Plan provides for five percent of all newly constructed dwelling units in Village 2 being designated for occupancy and affordability by low-income households and five percent for moderate-income households consistent with the City of Chula Vista Housing Element established Policy 5.1.1 of the City's Housing Element of the General Plan ("Balanced Community Policy") Proposed Proiect Rosina Genpar, LLC ("Developer") proposes to develop a two hundred seventy-eight (278) unit housing project located on Neighborhood R-30 in Otay Ranch Village 2 known as Rosina Vista Apartments (the "Project"). A total of twenty-eight units for low and moderate income households will be intermixed throughout the 278-unit Project. Rosina Vista will provide a mix of I, 2 and 3 bedroom units within 24 3-story buildings. Parking will be provided on-site, with half of the spaces in garages. On-site amenities include a recreation building and pool. Rosina Vista will be located directly adjacent to a mixed use retail commercial site. Directly across the street is a designated park site and Otay Ranch High School. Income and Rent Covenants Fourteen (14) units within Rosina Vista will be operated as affordable rental housing for low income households and fourteen (14) units for moderate income households (the "Affordable Units") in compliance with the Affordable Housing Program. The unit break down, income restrictions and estimated rents (minus a utility allowance) is summarized in the table below. ,. N urriber Y ~':'ofUiiiis : 1 brll ba 1 brll ba 1 brll ba 2 br/2 ba 2 br/2 ba 2 br/2 ba , : "20lO'Estimated ReiitS"",S,. ?_:-,_f"""'3_\,:-_O;_';f'''','''''''.',:r';!''''~''Jf;!~;'''',\:,_;' ~:(Mi1ius:a .Utili ':;4llowance), $ 942 $ 1,170 $ [,300 $ 1,061 $ 1,530 $ 1,700 3 Low Income (80% AMI) Moderate Income (120% AMI) Market Rate/Unrestricted Low Income (80% Alv[J) Moderate Income (120% AMI) Market Rate/Unrestricted o J 50 7 7 124 4-2 JUL Y 27, 2010, Iteml Page 3 2010,Estimated Rehtsi!'L,' i-" ----_,;:'~~!";+;;"" ^"'.,::_i,.--C'"";:",?,"i;;'_<.,,,,: ; ,'(ivfil111S,a'Utilitv Allowance)", $U78 $ 1,800 $ 2,000 3 br/2ba 3 br/2ba 3 br/2ba AFFORDABLE UNITS TOTAL UNITS 4 4 76 28 278 Low Income (80% AA4J) Moderate Income (120%AMJ) Market RatelUnrestricted The income and rent restrictions are incorporated into the Declaration of Covenants, Conditions and Restrictions to be recorded against the property and will be binding on Developer and its successors and assigns in the Property, The Declaration will be maintained for a period of twenty (20) years. The Declaration is provided in substantially final form as Attachment 2. Conclusion As stated in the City's Housing Element of the General Plan, the City has a pressing need for quality affordable housing and in general, more balanced and varied housing, particularly in the eastern area of the City. Rosina Vista Apartments will provide quality affordable housing with an integrated mix of low, moderate and market rate housing, on site amenities, and a desirable location directly adjacent to key neighborhood services, amenities and facilities. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 teet of the boundaries of the property which is the subject of this action. CURRENT YEAR FISCAL IMP ACT No financial assistance and or incentives are required from the City of Chula Vista. Staff support costs are budgeted in the personnel portion of the Housing Authority budget. ONGOING FISCAL IMPACT Staff support costs associated with the ongoing monitoring for compliance with the regulatory restrictions and administration of the Declaration are budgeted in the personnel portion of the Housing Authority budget. A TT ACHMENTS I . Locator Map 2. Declaration of Covenants, Conditions and Restriction Prepared by: Leilani Hincs, Principal Project Coordinator. Devclopment Services Department - HOl/sing Division 4-3 ATTACHMENT 1 Locator Map 4-4 ATTACHMENT 2 Declaration of Covenants, Conditions and Restriction 4-5 NO CHARGE ON THIS DOCUMENT PER CALIFORNIA GOVERNMENT CODE SECTION 6103 Recording Requested By And When Recorded Mail To: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista. CA 91910 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (TENANT RESTRICTIONS) (R30 Otav Ranch Village Two) THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ("Declaration") is dated as of the ~ day of July, 20 I 0, by Rosina Genoar, LLC, a California limited liability company ("Declarant") in connection with that certain parcel of real property ("Property") located in the City of Chula Vista ("City"), County of San Diego, California, described in Exhibit "A" attached hereto and incorporated herein by reference. RECIT ALS A. The City of Chula Vista Housing Element established Policy 5.1.1 of the City's Housing Element of the General Plan ("Balanced Community Policy"), which requires the occupancy and affordability often percent (1 0%) of each housing development of 50 or more units for low and moderate-income households, with at least one half ofthose units (5% of project total units) being designated for low-income households (the "Affordable Housing Obligation"). The Balance Community Policy also allows, under specified circumstances, alternative means of compliance. B. The Property is generally located at in Chula Vista, California (as more particularly described on the Property Legal Description attached hereto as Exhibit "A", the "Property"). Declarant has acquired title to the Property and will be constructing and permanently financing a two hundred seventy-eight (278) unit housing project, ofwhich twenty-eight (28) units will be operated as affordable rental housing for low and moderate income households (the "Affordable Units"). C. To meet the requirements of the Balanced Community Policy, the Declarant has agreed to enter into and record this Declaration. The purpose of this Declaration is to regulate and restrict the rents and occupancy ofthe Affordable Units and to implement controls on the ownership, operation, and management ofthe Affordable Units. The covenants in this Declaration are intended to run with the land and be binding on the Declarant and its successors and assigns in the Property. 1 C:\USERS\LEILANIH\DOCUME:--JTSIRDA-R30 CCR 7-21-10 FINAL DOC 4-6 NOW, THEREFORE, Declarant hereby declares that the Property shall be subject to the covenants, conditions and restrictions set forth below: I. Restrictive Covenants. Declarant agrees and covenants on behalf of itself and its successors and assigns, and each successor in interest to the Property, that at all times during the tenn of this Declaration set forth herein twenty-eight (28) units at the Property shall be set aside and reserved as "Affordable Units." As used herein the term "Affordable Units" shall refer to those residential units at the Property which are owned or held available strictly in accordance with the terms and conditions set forth below. (a) Affordable Unit Restrictions. The following restrictions shall apply to the twenty- eight (28) Atfordable Units. The restrictions set forth in the Table below shall establish the maximum rental rate, when not precluded by state law, from which a utility allowance, as approved by the City, shall be deducted: TABLE I: RENT AND INCOME RESTRICTION CRITERIA UNIT DESCRIPTION N1IMBER OF MAXLMUM % OF MAXIMUM MONTHLY RENTS AS YEARS OF RENT AFFORDABLE AREA MED IAN PERCENT AGE OF AREA MEDIAN RESTRICTION UNITS INCOME OF L~COME ADnJSTED FOR FAMILY ELIGIBLE TENANTS SIZE APPROPRIATE FOR THE UNIT ] brll ha 3 RO'% of AMI 1/12lhof30% of60%of AMI 20 I brll ha 3 120% of AMI 1/12"'of30% of110% of AMI 20 2 brl2 ba 7 XO% of AMI 1/12th of 30% of 60% of AMI 20 2 brl2 ba 7 120%, of AMI 1/12thof30% ofl10% of AMI 20 3 brl2ba 4 t;O%, of AMI 1/12"'000% of60% of AM! 20 3 br/2ba 4 TOTAL 28 AFFORDABLE UNITS (b) "Eligible Tenants" are those tenants whose aggregate gross annual income does not exceed the respective percentages set forth in Table I above of the annual median income, as adjusted for family size. All the units shall be Affordable Units as referenced in the Table. For purposes of this Declaration, the current annual median income shall be the median income defined by the State Department of Housing and Community Development ("HCD") as the then current median income for the San Diego Standard Metropolitan Statistical Area, established periodically by HCD, as adjusted for family size. The rents and the occupancy restrictions shall be deemed adjusted, from time to time, in accordance with any adjustments that are authorized by HCD or any successor agency. In the event HCD ceases to publish an established median income as aforesaid, the City may, in their sole discretions, use any other reasonably comparable method of computing adjustments in area median income. Notwithstanding anything contained herein to the contrary, to the extent any other restrictions applicable to the Property limit the rent and/or occupancy of the Property, the most restrictive shall apply. 2 C:\USERS\LEILANll-I\DOCUMENTS\RDA-R-10 CCR 72] 10 FINAL.DOC 4-7 (c) An adjustment of rents may be performed annually in accordance with the rents contained in the applicable City or HCD rent schedules published by the City for the affected unit type and updated from time to time. Further, the rents charged shall be further limited as set forth in Section 14, hereof. 2. Affordable Marketing Plan Compliance: Selection of Residents. Declarant shall utilize the City's standardized management and marketing plan for rental of all of the Affordable Units. Declarant's marketing of thc Affordable Units shall be in compliance with federal and state fair housing laws. The marketing plan, at a minimum, requires publicizing the availability of the Atfordable Units within the City, such as notices in any City-sponsored newsletter, advertising in local newspapers, and notice in City offices, In the event the City implements a master waiting list for affordable housing in the City ("Master List"), then Developer shall provide notices to persons on the Master List of the availability of the Affordable Units, prior to undertaking other forms of marketing. Developer shall give the persons on the Master List not fewer than fifteen (15) days after receipt of such notice to respond by submitting application forms for rental ofthe Affordable Units. Selection of residents shall be made based upon the Master List, rather than on a first-come, first- serve basis. Provided, however. (i) all tenants of each Affordable Unit shall meet the income requirements set forth herein and tenancy and eligibility shall be in conformance with the tcnns and standards set forth in the management marketing plan and no preference may be used for the purpose or elfect of delaying or otherwise denying admission to the Property or unit based on the race, color, ethnic origin, gender, religion, disability, or age of any member of an applicant household; and (ii) nothing herein shall restrict Declarant from screening tenants through the application of criteria which is lawful and customary in apartment management in San Diego County and otherwise consistent with federal, state and local regulations and restrictions related to the financing tor the Project. 3. Determination; Annual Requalification. Declarant shall obtain from each person to whom Declarant leases an Affordable Unit a "Supplemental Rental Application" ("Application") in the form of Exhibit "8", attached hereto (or such other form as City may from time to time adopt). Declarant shall be entitled to rely on the Application and supporting documents thereto in determining whether a household is an "Eligible Tenant". Declarant shall retain the Application and supporting documents for a period of not less than three (3) years after the household ceases to occupy an Affordable Unit. An Affordable Unit occupied by an Eligible Tenant, shall be treated as an Eligible Tenant until a recertification of such tenant's income demonstrates that such tenant no longer qualifies as an "Eligible Tenant." 4. Increased Income of Tenants. (a) Increase from Low to Moderate. If, upon recertification of the income ofa Tenant of an Aftordable Unit, the Declarant determines that a former Low Income Household's Annual Income has increased and exceeds the qualifying income for a Low Income Household set forth in Section 1 (b), but does not exceed the maximum qualifying income for a Moderate Income Household, then, upon expiration of the Tenant's lease: (I) Such Tenant's Unit shall be considered a Moderate Income Unit; 3 C:\USERS\LEILANIHIDOCU\1ENTS\RDA-R30 eCR 721-10 FINAL.DQC 4-8 (2) Such Tenant's Rent may be increased to the Affordable Rent for a Moderate Income Unit, upon sixty (60) days written notice to the Tenant; and (3) The Owner shall rent the next available Unit to a Low Income Household, as applicable, at a rent not exceeding the Affordable Rent for a Low Income Household, as applicable, to comply with the requirements of Sections I (a) above, (b) Non-Qualifying Household. If, upon recertification of the income ofa Tenant of an A ffordable Unit, the Declarant determines that a former Low Income Household or Moderate Income Household has an Annual Income exceeding the maximum qualifying income for a Moderate Household set forth in Section I (b), such Tenant shall bc permitted to continue to occupy the Unit at the market rate rent, and the Owner shall rent the next available Unit to a Low Income Household or a Moderate Income Household, as applicable, to meet the requirements of Sect ion I above. Declarant shall maintain the occupancy requirements set forth in Section I (a) above. 5. Relationship with Declarant. The term "Eligible Tenant" shall not include Declarant or any individuals who are partners or shareholders in Declarant or in any entity having an interest in Declarant or in the Property, or officer, employee, agent or consultant of the owner, developer or sponsor. 6. No Student Dependents. No Affordable Unit shall be occupied or leased to any person who is a full-time student, or a household comprised exclusively of persons who are full-time students, unless such persons are married and eligible to file ajoint federal income tax return. The term "full- time student" shall be defined as any person who will be or has been a full-time student during five calendar months of the calendar year in question at an educational institution (other than a correspondence school) with regular faculty and students and or a student dependent as defined in the U.S. Internal Revenue Code, unless the taxpayer (upon whom the student in question is dependent) resides in the same dwelling unit. 7. Income of Co-tenants. etc. The income of all co-tenants and/or non-dependent occupants shall be taken into account in determining whether a household is an Eligible Tenant hereunder. 8. Eviction. (a) Any Reason Other Than Over Income. In the event that a tenant who was properly certified as an Eligible Tenant at the commencement of such tenant's occupancy ceases to be eligible, for any reason other than being over income, Declarant shall give sixty (60) days written notice to such tenant to vacate the Affordable Unit. The vacated Affordable Unit shall thereafter be rented to an Eligible Tenant. 9. Maintenance. (a) Phvsical Condition of Affordable Units. After completion of the Affordable Units, Declarant shall continually maintain the Affordable Units in a condition which satisfies the Housing 4 C-\USERS'LEILANIH\DOCUMENTS\RDA-R30 CCR 721 10 FINAL-DOC 4-9 Quality Standards promulgated by HUD under its Section 8 Program, as such standards are interpreted and enforced by City under their normal policies and procedures. City shall have the right to inspect the Affordable Units from time to time, on reasonable notice and at reasonable times, in order to verify compliance with the foregoing maintenance covenant. Further, each Affordable Unit shall be requalified annually, as to the foregoing maintenance covenant, as part of the annual tenant requalification process described in Section 3 above. Any deficiencies in the physical condition of an Affordable Unit shall be corrected by Declarant at Declarant's expense within thirty (30) days ofthc identification of such deficiency by City and delivery of written notice of the same to Declarant (unless such deficiency is not capable of being cured within such thirty (30) day period, then such amount of time as City determines is needed, not to exceed one hundred twenty (120) days, provided Declarant commences cure within such thirty (30) day period and continues to diligently pursue cure). (bl Crime-Free Project. At all times during the term of this Declaration, the Declarant shall participate in thc City's Crime-Free Multifamily Housing Program, or any successor or similar program established by the City. 10. Monitoring. It is contemplated that, during the term of this Declaration, the City will perform the following monitoring functions: (a) preparing and making available to Declarant any general information that the City possess regarding income limitations and restrictions which are applicable to the Affordable Units; (b) reviewing the documentation submitted by Declarant in connection with the annual certification process for Eligible Tenants described in Section 3, above; and (c) inspecting the Affordable Units to verify that they are being maintained in accordance with Section 9, above. Notwithstanding the foregoing description of City functions, Declarant shall have no claim or right of action against the City based on any alleged failure to perform such function. Tn addition, the Declarant shall cooperate with and utilize such forms, software, websites and third-party vendors as may be reasonably required by the City. 1]. Lease Provisions. Declarant agrees that it will include in all of its leases, and cause its successors in interest to include in all of their leases, the following provision: Lessee agrees, upon written request from the Landlord, City ofChula Vista ("City"), to certify under penalty of perjury the accuracy of all information provided in connection with the examination or reexamination of annual income of the tenant's household. Further, tenant agrees that the annual income and other eligibility requirements are substantial and material obligations of the tenancy and that the tenant will comply promptly with all requests for information with respect to the tenancy from the Landlord, City. Further, tenant acknowledges that tenant's failure to provide accurate information regarding such requirements (regardless of whether such inaccuracy is intentional or unintentional) or the refusal to comply with the request for information with respect thereto, shall be deemed a violation ofthis lease provision, and a material breach of the tenancy and shall constitute cause for immediate termination of the tenancy. 5 C:\USERSILEILANIH\DOCUMENTS\RDA R30 CCR 7-21-10 FfNAL.DOC 4-10 12. Non-Discrimination. (a) Obligation to Refrain from Discrimination. Declarant covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed. religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Declarant or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property or the rental, lease sale of the Property and any dwelling unit thereon. The foregoing covenants shall run with the Property. (b) Nondiscrimination Covenants. Declarant shall refrain from restricting the rental, lease and sale of the Property and any dwelling unit thereon on the basis of race, color, creed, religion. sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or non segregation clauses: (I) Deeds. In deeds "The grantee herein 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, disability, medical condition, familial status, source of income, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee 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, lessees, subtenants, sub1essees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (2) Leases. In leases "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, 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, disability, medical condition, familial status, source of income, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." 6 C:\USERS\LEILANIH\DOCUMENTS\RD~\-R30 CCR 721-10 FINAL,DOC 4-11 (3) Contracts. In contracts 'There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, sexual orientation, disability, medical condition, familial status, source of income, marital status, national origin or ancestry in the sale, lease. sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee 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, lessees, subtenants, sublessees or vendees of the land." 13. Successors Bound. Declarant covenants, for itself and its successors and assigns, not to sell, transfer, assign or otherwise dispose of ownership of the Property, without the express written consent of the City, whose consent shall not be unreasonably withheld. Any prospective purchaser, transferee or assignee shall expressly promise in writing to be bound by all of the provisions hereof, including the covenant in this Section 13 to require successors to expressly assume the obligations herein. 14. Maximum Rent To Be Collected by Declarant. In no event, shall all of the rent, including the portion paid hythe Eligible Tenant and any other person or entity, collected by Declarant (the "Total Rent") for any rent restricted unit exceed the amount of rent set forth in Table I. Total Rent includes all payments made by the Eligible Tenant and all subsidies received by Declarant. Tn the case of persons receiving Section 8 benefits, who are Eligible Tenants, Declarant acknowledges that it shall not accept any suhsidy or payment that would cause the Total Rent received for any restricted unit to exceed the maximum rents allowed in Table I, for any Affordable Unit. Should Declarant receive Total Rent in excess of the allowable maximum rent set forth in Table 1, Declarant agrees to immediately notify City and reimburse the City for any such overpayment. Acceptance by Declarant or its successors in interest, of Total Rent in excess of the maximum rent set forth in Table I shall constitute a material breach of this Declaration. The City, in its sole and unfettered discretion, may waive a breach of this paragraph ifit determines and informs Declarant in writing that Declarant's actions to immediately notify City of the overpayment and reimbursement to City for such overpayment has satisfactorily cured the breach of this paragraph. 15. Term. This Declaration and the covenants and restrictions contained herein shall be effective on the date this Declaration is recorded and shall remain in full force and effect for a period of twenty (20) years from the date of issuance of the certificate of occupancy for the 278th residential unit at the Property. 16. Enforcement. Declarant expressly agrees and declares that the City or any successor public entity or agency is a proper party and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such default may have actually been suffered by some other person or the public at large. Further, the City or any successor public entity or agency shall be the proper party to waive, relinquish, release or modify the rights, covenants, obligations or restrictions contained in or arising under this Declaration. 7 C:\USERS\LEILANIl-fIDOCU!\IE>JTS\RDA RJO CCR 7-::1-10 FfNALDOC 4-12 17. Attornevs' Fees. In the event that any litigation for the enforcement or interpretation of this Declaration, whether an action at law or arbitration or any manner of non-judicial dispute resolution to this Declaration by reason of the breach of any condition or covenant, representation or warranty in this Declaration, or otherwise arising out of this Declaration, the prevailing party in such action shall be entitled to recover from the other reasonable attorneys' fees to be fixed by the court which shall render a judgment, as well as the costs of suit. 18. Severabilitv. In the event that any provision or covenant of this Declaration is held by a court of competent jurisdiction to be invalid or unenforceable, then it shall be severed from the remaining portions of this Declaration which shall remain in full force and effect. 19. Covenants to Run With the Land. The covenants contained herein shall constitute "covenants running with the land", and shall bind the Property and every person having an interest therein during the term ofthis Declaration. Declarant agrees for itself and its successors that, in the event that, for any reason whatsoever, a court of competent jurisdiction determines that the foregoing covenants do not run with the land, such covenants shall be enforced as equitable servitudes against the Property. 20. Recordation: Waiver and Amendment: Pavment of Fees. This Declaration shall be recorded in the Office of County Recorder of San Diego, California. No provision of this Declaration, or breach of any provision, can be waived except in writing. Waiver of any provision or breach shall not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or other provision. Except as otherwise provided herein, this Declaration may be amended, modified or rescinded only in writing signed by Declarant and the City. In the event the City consents to such an amendment, modification or rescission, the same shall be conditioned upon Declarant's payment of all fees and costs incurred by the City with respect to the same, including without limitation attorneys fees. The City may waive the aforementioned costs and fees if the amendment, modification, or rescission is required solely because of City action. 2 l. Remedies. (a) Contract Governed bv Laws of State of California. This Declaration, its performance, and all suits and special proceedings under this Declaration, shall be constituted in accordance with the laws of the State of California and Federal law, to the extent applicable. In any action, special proceeding, or other proceeding that may be brought arising out of, under or because of this Declaration, the laws of the State of California and the United States, to the extent applicable, shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which the action or special proceeding may be instituted. (b) Standing, Equitable Remedies: Cumulative Remedies. Declarant expressly agrees and declares that City or any successor or public entity or agency shall be the proper party and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such a default may have actually been suffered by some other person or by the public at large. Further, Declarant expressly agrees that receivership, 8 C:\USERSILEILANlI!\DOCUMENTSIRDA-R30 CCR 7-21-]0 FINALDOC 4-13 injunctive relief and specific performance are proper pre-trial and/or post-trial rcmedics hereunder, and that, upon any default, and to assure compliance with this Declaration. Nothing in this subparagraph, and no recovery to the City, shall restrict or limit the rights or remedies of persons or entitics other than City, against Declarant in connection with the same or related acts by Declarant. The remedies set forth in this Section are cumulative and not mutually exclusive, except the extent that their award is specifically determined to be duplicative by final order of a court of competent jurisdiction. (c) Remedies at Law for Breach of Tenant Restrictions. [n the event of any material default under Sections I through 19 hereof regarding restrictions on the operation and the transfer of the Property, the City shall be entitled to, in addition to any and all other remedies availablc at law or in equity, recover compensatory damages. [fthe default in question involves the collection of rents in excess ofthe rents permitted hereunder, the amount of such compensatory damages shall be the product of multiplying: (a) the number of months that the default in question has continued until the time of trial by (b) the result of subtracting the rents properly chargeable hereunder for the Atfordable Units in question from the amount actually charged for those Atfordable Units. Declarant, the City agrees that it would be extremely difficult or impracticable to ascertain the precise amount of actual damages accruing to City as a result of such a default and that the foregoing formula is a fair and reasonable method of approximating such damages. The City shall be entitled to seek and to recover damages in separate actions for successive and separate breaches which may occur. Further, interest shall accrue on the amount of such damages from the date of the breach in question at the rate of ten percent (10%) per annum or the maximum rate than allowed by law, whichever is less. Nothing in this Section shall preclude the award of exemplary damages as allowed by law. (d) Expert Witness, Attornevs' Fees, and Costs. The parties agree that the prevailing party in litigation for the breach and/or interpretation and/or enforcement of the terms of this Declaration shall be entitled to their expert witness fees, if any, as part of their costs of suit, and reasonable attorneys' fees as may be awarded by the court, pursuant to California Code of Civil Procedure CCCP") !)1033.5 and any other applicable provisions of California law, including, without limitation, the provisions of CCP !)998. 22. Mortgagees Protection. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Declaration shall defeat or render invalid or in any way impair the lien or charge of any permitted deed oftrust recorded on the Property provided, however, that any subsequent owner of the Property shall be bound by the covenants, conditions, restrictions, limitations and provisions of this Declaration, whether such owner's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 23. Conversion to Condominiums. Tn the event Declarant has expressed its intent to convey, transfer or sell of any portion of the Property as a condominium, Declarant shall cause to be executed and recorded covenants and/or a regulatory agreement, as mutually agreed upon, restricting the sale and affordability of required Affordable Units and shall provide tenants with the required notices of the intent to terminate tenancy and conversion of the Affordable Units in accordance with this Section. 9 C:\USERSILEILANIH\DOCUMENTS\RDA-R30 CCR 7-21-10 FINA.LDOC 4-14 (a) Restriction of Sale to Eligible Buvers. Prior to submittal of an application to the California Department of Real Estate for a public report, Declarant shall record against the real property, a covenant and/or an individual regulatory agreement, in a form and content approved by the City, restricting the sale and affordability of fourteen (14) of the total units to Moderate Income Households and fourteen (14) of the total units to Low Income Households as required in this Declaration. Declarant agrees that the conveyance, transfer or sale of any portion of the Property as a condominium prior to the execution and recordation of such covenant and/or regulatory agreement for the sale of Affordable Units, shall be a breach of this Declaration, entitling the City to immediately exercise any and all of their rights and remedies under this Declaration. (b) Notice to Tenants and Citv. Declarant shall be responsible to give each tenant and each prospective and new tenant of an Affordable Unit all notices and documents required by this Section. A copy of all notices sent to tenants shall be furnished to the City's Development Services Department. (I) Each tenant shall receive written notice of intention to convert the development to condominium ownership at least 180 days prior to termination of tenancy due to the conversion ofthe development to individual ownership ofthe Affordable Units. Following, delivery of such written notice, all prospective and new tenants of an Affordable Unit shall be provided with a copy of such notice. (2) Each tenant shall be given 10 days written notice that an application for a public report will be submitted to the California Department of Real Estate, and that a copy of this report will be available on request, as required by state statutes. (3) Each tenant shall receive written notification of the receipt of the Public Report from the California Department of Real Estate within 5 days of receiving this report, as required by State statutes. (4) No later than sixty (60) days preceding the anticipated date of application for a public report to be submitted to the California Department of Real Estate, Declarant shall provide the City with written notice of the availability of the Affordable Units for sale, including the type (detached or attached), size (square footage and number of bedrooms), location, and required income level of the unit, with specific reference to this Agreement by date and name of the Declarant who executed the Agreement and location of the Property described in Exhibit A of this Agreement. (5) Tagalog, or another language. If the original rental agreement with the tenant was negotiated in Spanish, language, all written notices required by this Chapter shall be issued in that (6) All notices shall be sent by first-class mail postage prepaid. 24. Noticing Requirements Prior to Tennination. Prior to termination of this Declaration, Declarant shall comply with any and all noticing requirements required under any applicable laws or 10 C-\USERS\LEILANIH\DOCUMENTSIRDA-R30 CCR 7-21-l0 FINAL.DOC 4-15 __t_ regulations, including without limitation, the requirements of California Government Code Sections. 65863.10 and 65863.11. 25. Signature Authority. . All individuals signing this Declaration for a party which is a c~rporation, a partnership or other legal entity, or signing under a power of attorney, or as a trustee, gUardian, conservator, or in any other legal capacity, covenant to. the City that they have the necessary capacity a~d authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. Declarant: Rosina Genpar LLC, a'California limited r .9- By:~V .Ie:- By: By: Its: By: LLC, a CalifBrnia limited lialJililj' eOffij3aa,', , LLC, a California limited liability company, 11 J:\REDEVELOPMENT-HQUSING\HOUSING (0670)\HQUSfNG HOMEROQM'DEVELOPME!'IT\OTAY RANCH V2_R30\RDA-RJO CCR 7-21-10 FINAL.DOC 4-16 reguJations, including without limitation, the requirements of California Government Code Sections 65863.10 and 65863.11. 25. Signature Authoritv. All individuals signing this Declaration for a party which is a corporation, a partnership or other legal entity, or signing under a power of attorney, Or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the City that they have the necessary capacity and authority to act for. sign and bind the respective entity or principal on whose behalf they are signing. Declarant: Rosina Genpar LLC, a California limited liability company By: G.A. Ranglas, Manager 11 C:\USERS\LEILANIl-I'DO(U!\.IENTS\RDA-R30 CCR 7-21-10 FINAL.DOC 4-17 ACKNOWLEDGMENT State of California ) ) ) County of San Diego On ,2010 before me, , personally appeared 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 hislher/their authorized capacity(ies), and that by his/herltheir 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. Signature (Seal) 12 C:\lISERSILEILANIH\DOCUMENTS\RDA-RJO CCR 7-21-10 FINAL.DOC 4-18 Exhibit "A" Property Description All that certain real property situated in the City of Chula Vista, County of San Diego, State of California, described as follows: LOT 3 OF CHULA VISTA TRACT NO. 06-05, OT A Y RANCH VILLAGE 2 AND PORTIONS OF VILLAGE 4 "A" MAP, N THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 15350, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 26, 2006 AND AS CORRECTED BY CERTIFICATE OF CORRECTION RECORDED FEBRUARY 22, 2008 AS INSTRUMENT NO. 2008-91336, OF OFFICIAL RECORDS. APN: 644-310-04 13 C:\USERS\LE1LANIH\DOCUMENTS\RDA-RJO CCR 7-21-10 FINAL.DOC 4-19 Exhibit "B" Supplemental Rental Application 14 C:\USERS\LEILANIH\DOCUMENTSIJUJA-RJO eCR 7-21-10 FINAL.DOC 4-20 RESOLUTION NO. 2010- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY MANAGER TO EXECUTE A DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS BY AND BETWEEN THE CITY OF CHULA VISTA AND ROSINA GENPAR, LLC FOR A RENTAL HOUSING DEVELOPMENT TO BE LOCATED ON NEIGHBORHOOD R-30 IN OTAY RANCH VILLAGE 2 IN SATISFACTION OF THE CITY'S BALANCED COMMUNITIES POLICY WHEREAS, on May 23, 2006, the City approved the Otay Ranch Village Two Sectional Planning Area (SPA) Plan by Resolution Nwnber 2006-156; and WHEREAS, the Affordable Housing Program of the SPA Plan provides for five percent of all newly constructed dwelling units being designated for occupancy and affordability by low- income households and five percent for moderate-income households consistent with the City of Chula Vista Housing Element established Policy 5.1.1 of the City's Housing Element of the General Plan ("Balanced Communities Policy"); and WHEREAS, Rosina Genpar, LLC ("Developer") proposes to construct and permanently finance a two hundred seventy-eight (278) unit housing project located on Neighborhood R-30 in Otay Ranch Village 2 in the City ofChula Vista (the "Project"), of which twenty-eight (28) units will be operated as affordable rental housing for low and moderate income households (the "Affordable Units"); and WHEREAS, a Declaration of Covenants, Conditions and Restrictions (the "Declaration") has been prepared to regulate and restrict the rents and occupancy of the Affordable Units and to implement controls on the ownership, operation, and management of the Atfordable Units. The covenants in this Declaration are intended to run with the land and be binding on Developer and its successors and assigns in the Property; and WHEREAS, Developer has agreed to enter into, record and comply with this Declaration, in satisfaction of the Affordable Housing Program of the Otay Ranch Village Two SPA Plan and the Balanced Communities Policy; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposed project was adequately covered in previously adopted Final Second Tier Environmental Impact Report, EIR 02-02. Thus, no further CEQA review or documentation is necessary. 4-21 Council Resolution No. 2010-_ Page 2 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA does hereby authorize the City Manager to execute the Declaration of Covenants, Conditions and Restrictions by and between the City and the Developer, in substantially the form presented to the City, and make such modifications, changes or additions to the Declaration and other documents, in consultation with the Office of the City Attorney, as may be necessary or advisable. The approval of any modification, change or addition to the Declaration and any related document shall be evidenced conclusively by the execution and delivery thereof by the City Manager. Presented by Approved as to form by Gary Halbert, AICP, PE Deputy City Manager/Director of Development Services .~-1JI1 /J1 Bart C. Miesfeld City/Agency Attorney 4-22