HomeMy WebLinkAbout2021-10-12; City Council; Resolution 2021-235RESOLUTION NO. 2021-235
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING AN AFFORDABLE HOUSING AGREEMENT TO
SATISFY THE INCLUSIONARY HOUSING REQUIREMENT FOR THE MARJA
ACRES DEVELOPMENT (DEV 16-038)
EXHIBIT 2
WHEREAS, the developer of Marja Acres has proposed to construct 46 apartment units
affordable to low and very low-income households as a means to satisfy their inclusionary housing
obligation as permitted by Carlsbad Municipal Code Chapter 21.85 and Section 21.53.120; and
WHEREAS, in exchange for providing additional affordable housing, the project received
approval to increase the density on the project over what would normally be allowed and modifications
to development standards, including for height, setbacks and parking as allowed in Carlsbad Municipal
Code Section 21.53.120, were granted;
WHEREAS, Carlsbad Municipal Code Chapter 21.85 requires the developer of a project to
receive approval of an Affordable Housing Agreement which details how the requirements of the
lnclusionary Housing Ordinance shall be met.
WHEREAS, the City Council approved said housing development on November 3, 2020.'
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the project is consistent with the goals and objectives of the City of Carlsbad's
Housing Element, and the General Plan. The project will provide 46 apartment homes
affordable to low and very low-income households. The project, therefore, can
effectively serve the city's housing needs and priorities expressed in the Housing
Element.
3. That the Affordable Housing Agreement (Attachment A) is hereby approved.
4. That the City Council authorizes the City Manager, or designee, to prepare and execute
all documents related to the provision of the,Affordable Housing Agreement, subject to
review and approval by the City Attorney.
Oct. 12, 2021 Item #8 Page 10 of 111
EXHIBIT 2
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on
the 12th day of October2021, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
Hall, Blackburn, Bhat-Patel, Acosta, Norby.
None.
None.
MATT HALL, Mayor
Oct. 12, 2021 Item #8 Page 11 of 111
RECORDING REQUESTED BY: City of Carlsbad
WHEN RECORDED MAIL TO: City of Carlsbad Housing and Homeless Services Department 1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: City Clerk
This document is recorded at the request and for the benefit of the City of Carlsbad, and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103,
27383, and 27388.1
(Space above for Recorder's Use)
AFFORDABLE HOUSING AND DENSITY BONUS AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY (DEV 16-038)
This AFFORDABLE HOUSING AND DENSITY BONUS AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY ("Agreement"), entered into this
__________ day of _________________, ____, by and between the CITY OF CARLSBAD, a municipal corporation (“City”), and NUWI Carlsbad, LLC, a limited liability corporation, “Developer”) is made with reference to the following:
A.Developer is the owner of certain real property in the City of Carlsbad, in the
County of San Diego, California (“Property”) described in Exhibit "A", which is attached hereto and incorporated herein by this reference.
B.Developer currently intends to construct a total of 295 residential units on theProperty (“Development”), consisting of 248 market rate townhomes, and 46 affordable senior
apartments plus a manager’s unit. The City has approved the Site Development Plan for the Development. On November 3, 2020, City certified a final environmental impact report and adopted Candidate Findings of Fact and a Mitigation Monitoring and Reporting Program (EIR 2017-0001), and issued approvals for a tentative tract map (CT 16-07), residential planned development permit (PUD 16-09), non-residential planned unit development (PUD 2018-0007),
site development plan (SDP 2018-0001), coastal development permit (CDP 16-33), hillside development permit (HDP 16-02), and special use permit (SUP 16-02), which said approvals specify therein the granting of increased density, additional units from the City’s excess dwelling unit bank, and related standards modifications, subject to certain conditions of approval (Planning Commission Resolution No. 7382 "Conditions of Approval"). One of the Conditions of Approval
requires that 37 of the units in the Development are to be affordable to senior households with incomes up to fifty percent of the San Diego Area Median Income (50% AMI), and nine (9) of the units in the Development are to be affordable to senior households having incomes up to sixty percent of the San Diego Area Median Income (60% AMI), in fulfillment of the City's Inclusionary Housing Ordinance, Carlsbad Municipal Code (“CMC”) Chapter 21.85, and Planning Commission
Resolution 7114.
Attachment A
Oct. 12, 2021 Item #8 Page 12 of 111
C. Developer requested and received from City a thirty-five percent (35%) density bonus and incentives or concessions to provide twenty percent (20%) of the development
(exclusive of the bonus units) for housing affordable to lower income households.
D. Developer is required by the Conditions of Approval to enter into an Affordable Housing and Density Bonus Agreement as required and with the content specified by the City’s Inclusionary Housing Ordinance (CMC Chapter 21.85) and in the Residential Density Bonus and
Incentives or Concessions Ordinance (CMC Chapter 21.86). This Affordable Housing and
Density Bonus Agreement satisfies the requirements of CMC Sections 21.85.140 and 21.86.130, and shall be executed and recorded prior to the approval of any final or parcel map for the Property or, where a map is not being processed, prior to issuance of building permits.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows: 1. Satisfaction of Affordable Housing Obligation and Conditions of Approval. In order to satisfy the Conditions of Approval of the permits described in Recital B above, and the
requirements of the City's Inclusionary Housing Ordinance (CMC Chapter 21.85) and Residential
Density Bonus and Incentives or Concessions Ordinance (CMC Chapter 21.86) shall not be satisfied unless forty-six (46) units of the Development are constructed for the purpose of providing housing to be affordable to lower-income senior households according to the schedule and terms contained herein (“Affordable Units”). A total of 248 market rate units, one unrestricted
manager’s unit and at least 46 Affordable Units may be constructed with approval of this
Agreement. 2. Terms Governing Provision of Affordable Units. Provision of the Affordable Units shall be governed by the following terms:
2.1 Size and Bedroom Count. The Affordable Units in the Development shall include 47 units (including one unrestricted manager’s unit) in the numbers and with the square footages indicated in the table below.
Unit Size Number of Units by Income Level (% AMI) Total
Number of bedrooms Approx. net square feet Very Low Low
50% 60%
One bedroom 524-545 s.f. 37 9 46
Two bedroom 757 s.f. 1*
TOTALS 37 9 47
*Unrestricted manager’s unit
2.2 Affordability Requirements. Thirty-seven (37) Very Low Income Affordable Units shall be restricted to occupancy by households with incomes not exceeding 50% of the area median income (AMI) for San Diego County, adjusted for actual household size.
Oct. 12, 2021 Item #8 Page 13 of 111
Monthly rents of the Very Low Income Affordable Units shall not exceed 1/12th of 30% of 50% of the household AMI for San Diego County, adjusted for assumed household size appropriate for
the unit pursuant to the Regulatory Agreement. Nine (9) Low Income Affordable Units shall be
restricted to occupancy by households with incomes not exceeding 60% of the area median income (AMI) for San Diego County, adjusted for actual household size. Monthly rents of the Low Income Affordable Units shall not exceed 1/12th of 30% of 60% of the household AMI for San Diego County, adjusted for assumed household size appropriate for the unit pursuant to the Regulatory
Agreement. One manager’s unit shall be unrestricted as to income or rent limitations. For
purposes of this Agreement, “Rent” shall include a utility allowance as established and adopted by the City of Carlsbad Housing Authority, as well as all required monthly payments made by the tenant to the lessor in connection with use and occupancy of a housing unit and land and facilities associated therewith, including any separately charged fees, utility charges, or service charges
assessed by the lessor and payable by the tenant (but not including fees or charges resulting from
any default by the tenant or damage caused by the tenant, or fees or charges paid by the tenant to third party utilities or other providers). Median income figures shall be those determined by the United States Department of Housing and Urban Development from time to time, and as published by the California Department of Housing and Community Development. For purposes of this
Agreement, “assumed household size appropriate for the unit” shall mean a household of two
persons in a one-bedroom unit, and three persons in a two-bedroom unit, unless the requirements of another funding source require an alternate method of calculating assumed household size. With respect to each Affordable Unit, the affordability requirements of this Section 2.2 shall continue for 55 years from the date of issuance of a Certificate of Occupancy by the City for such unit or
another comparable unit based upon substitution provisions pursuant to the Regulatory Agreement.
The affordability requirements of this Section 2.2 shall be set forth in the Regulatory Agreement between the Developer or its successors and the City, provided for below, which shall supersede this Agreement upon recordation of the Regulatory Agreement.
2.3 Schedule for Developing Affordable Multi-family Units. Developer
and/or its successor shall provide the Affordable Units on the following schedule: (i) Developer may obtain building permits for no more than 82 of the market rate townhomes prior to Developer and/or its successor obtaining a building permit for and commencing construction on the Affordable Units, (ii) Developer may obtain building permits for no more than an additional 83 of
the market rate townhomes prior to completion of the Affordable Units, as evidenced by issuance
of certificates of occupancy, and (iii) Developer may obtain building permits for the remaining market rate townhomes after completion of the Affordable Units, as evidenced by issuance of certificates of occupancy. For purposes of this section, “building permit” shall mean a permit issued in accordance with the requirements of the California Building Code, California Code of
Regulations, Title 24, Part 2, Volumes 1 and 2, Section 105, and as amended by Carlsbad
Municipal Code Section 18.04.020. For purposes of this section, “commencing construction” shall mean initiation of construction activity in reliance on the building permit for the Affordable Units and which results in at least one approved inspection by the City.
3. City Approval of Documents. The following documents, to be approved in writing
by the City, shall be used in connection with the rental of Affordable Units. 3.1 A marketing plan consistent with the terms of this Agreement, establishing the process for seeking, selecting and determining the eligibility of tenants of the
Affordable Units.
Oct. 12, 2021 Item #8 Page 14 of 111
3.2 A form of Rental Agreement.
3.3 A Property Management Plan. 3.4 A form of regulatory agreement between the Developer (and/or its successor) and the City ("Regulatory Agreement"), following a format designated by the City.
4. Compliance Report. Following completion of construction of the Affordable Units, a Compliance Report meeting the requirements of CMC Section 21.85.140 of the Inclusionary Ordinance, verifying compliance of all completed Affordable Units with the terms of this Agreement and certified as correct by a third-party, shall be submitted annually to the Housing
and Homeless Services Director, commencing on the first Report Date that is twelve (12) months
from the completion of construction of the Affordable Units. In addition, said annual reports shall contain an updated list of the tenants and their ages, in compliance with CMC Section 21.84.110, monitoring and reporting requirements for housing for senior citizens. If similar reports on some or all of the Affordable Units are required for regulatory compliance with other financing
programs, those reports may be deemed satisfactory for the purpose of this section by the Housing
and Homeless Services Director, with respect to the Affordable Units covered by such reports, provided that copies of those reports are provided on an annual basis to the Housing and Homeless Services Director with a third party certification addressed to the City.
5. Release of Subject Property from Agreement. The covenants and conditions herein
contained shall apply to and bind the Developer and its heirs, executors, administrators, successors, transferees, and assignees of all the parties having or acquiring any right, title or interest in or to any part of the Property to be developed and shall run with and burden the Property until expiration in accordance with Section 12 hereof. This Agreement shall not burden or encumber non-
residential portions of the Property and shall not preclude development or issuance of non-
residential permits in any manner. Until residential portions of the Property are released from the burdens of this Agreement pursuant to this Section 5, the Developer shall expressly make the conditions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in the Subject Property. Notwithstanding anything to the contrary set forth
in this Agreement, individual purchasers of single-family residential units pursuant to an approved
public report in compliance with the California Subdivided Lands Act, and mortgage lenders holding deeds of trust on such individual units after sale to such purchasers, shall not be subject to the terms of this Agreement; and the terms of this Agreement shall be of no further force or effect and automatically released without further action with respect to such completed unit on the date
of the recordation of a deed to the individual purchaser. As market rate units are eligible for
release, this Agreement shall be fully released for those eligible market rate residential units as designated in writing by Developer. The Agreement shall be fully released as to the entire Property upon issuance of certificates of occupancy for all Affordable Units.
6. Default. Failure of the Developer to cure any default in the Developer's obligations
under the terms of this Agreement within ninety (90) days after the delivery of a notice of default from the City (or where the default is of the nature which cannot be cured within such ninety (90) day period, the failure of the Developer to commence to cure such default within the ninety (90) day period or the Developer's failure to proceed diligently to complete the cure of such a default
within a reasonable time period but in no event greater than one-hundred eighty (180) days) will
Oct. 12, 2021 Item #8 Page 15 of 111
constitute a failure to satisfy the Conditions of Approval with respect to the Property and the requirements of Chapter 21.85 of the CMC. The City may exercise any and all remedies available
to it with respect to the Developer's failure to satisfy the Conditions of Approval and Chapter 21.85
of the CMC, including but not limited to, the withholding of further building permits for the market rate units within the Development until such cure is completed. 7. Appointment of Other Agencies. At its sole discretion, City may designate, appoint
or contract with any other public agency, for-profit or non-profit organization to perform the City's
obligations under this Agreement. 8. Hold Harmless. Developer will indemnify and hold harmless (without limit as to amount) City and its elected officials, officers, employees and agents in their official capacity
(hereinafter collectively referred to as "Indemnitees"), and any of them, from and against all loss,
all risk of loss and all damage (including attorneys’ fees and expenses) sustained or incurred because of or by reason of any and all claims, demands, suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of or relating in any manner to Developer's actions or defaults pursuant to
this Agreement, and shall protect and defend Indemnitees, and any of them with respect thereto.
This provision shall survive the term of this Agreement. 9. Insurance Requirements. Developer shall obtain, at its own expense, commercial general liability insurance for development of the Affordable Units naming Indemnitees as
additional named insureds with aggregate limits of not less than five million dollars ($5,000,000),
for bodily injury and death and property damage, including coverage for contractual liability and projects and completed operations, purchased by Developer or its successor or assigns from an insurance company duly licensed to engage in the business of issuing such insurance in the State, with a current Best's Key Rating of not less than A-:VII, such insurance to be evidenced by an
endorsement which so provides and delivered to the Housing and Homeless Services Director prior
to the issuance of any building permit for the Property. 10. Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to
the party to receive such notice at the addressed set forth below:
TO THE CITY OF CARLSBAD: City of Carlsbad
Housing and Homeless Services Department
1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: Housing and Homeless Services Director
Email: Housing@carlsbadca.gov
Fax: 760-720-2037 TO THE DEVELOPER: __________________________________
__________________________________
Oct. 12, 2021 Item #8 Page 16 of 111
__________________________________ __________________________________
__________________________________
Any party may change the address to which notices are to be sent by notifying the other parties of the new address in the manner set forth above.
11. Integrated Agreement. This Agreement constitutes the entire Agreement
between the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. 12. Duration of Agreement. This Agreement shall remain in effect for fifty-
five (55) years following the date certificates of occupancy have been issued for all Affordable
Units. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of the Developer and the Housing and Homeless Services Director.
13. Recording of Agreement. The parties hereto shall cause this Agreement to
be recorded against the Property in the Official Records of the County of San Diego. 14. Severability. In the event any limitation, condition, restriction, covenant, or provision contained in this Agreement is to be held invalid, void or unenforceable by any
court of competent jurisdiction, the remaining portions of this Agreement shall nevertheless be
and remain in full force and effect. 15. Tax Credit Financing. The City agrees and acknowledges that the development of the Affordable Units may be financed, in part, with federal and/or state low
income housing tax credits (“Tax Credits”) administered by the California Tax Credit Allocation
Committee (“CTCAC”). To the extent the Affordable Units are financed in whole or in part with Tax Credits, (A) the Area Median Income, occupancy limitations and rental rates contemplated in Section 2 of this Agreement shall be calculated in accordance with the methodologies, policies and procedures of CTCAC and (B) in the event of any conflict between the provision of this
Agreement and the methodologies, policies and procedures of CTCAC, the methodologies,
policies and procedures of CTCAC shall prevail.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above written. DEVELOPER CITY OF CARLSBAD
By: ___________________________ By: _____________________________ Signature Signature Title: _________________________ Title: _____________________________
Dated: ________________________ Dated: ____________________________
Oct. 12, 2021 Item #8 Page 17 of 111
By: ___________________________ Signature Title: _________________________
(Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant
treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the office(s) signing to bind the corporation.)
(If signed by an individual partner, the partnership must attach a statement of partnership
authorizing the partner to execute this instrument.) (Proper notarial acknowledgment of execution by Developer must be attached.)
APPROVED AS TO FORM Celia A. Brewer, City Attorney
By: Dated: Ron Kemp, Assistant City Attorney
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EXHIBIT A
ADDRESS:
ASSESSOR PARCEL NO.: LEGAL DESCRIPTION OF PROPERTY
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