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HomeMy WebLinkAboutSDP 2018-0022; BNR INVESTMENT & DEVELOPMENT LLC; 2022-0089722; Affordable Housing Agreement/ReleaseRECORDING REQUESTED BY: City of Carlsbad WHEN RECORDED MAIL TO: City of Carlsbad Housing and Homeless Services Deparlmt:nt 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: City Clerk DOC# 2022-0089722 11111111111111111111111111I111111111111111 /flll lflll lllll 1111111111111 Feb 28, 2022 02:32 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr .. SAN DIEGO COUNTY RECORDER FEES: $0 00 (SB2 Atkins: $000) PAGES: 8 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 2017-0225) This AFFORDABLE HOUSING AND DENSITY BONUS AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY (''Agreement"), entered into this 1 /-A day of -1)-e..eeA~ . 2 o 2-{ by and between the CITY Of CARLSBAD, a municipal corporation ("City"), and BNR Investment & Development, LLC. a California Limited L iability Company ("Developer") is made with reference to the following: A. Developer is the owner of certain real property in the C ity of Carlsbad, in the County of San Diego, Califomia CProperty"') described in Exhibit ''A", which is attached hereto and incorporated herein by this reference. B. Developer currently intends to construct a total of 26 residential units on the Property ("Dcvc1opment"), consisting of 22 market rate and four (4) affordable apartments. The City has approved the Site Development Pl an and Hillside Development P Ian for the Development, which said approval specifics the granting of increased density, additional units from the City's excess dwelling unit bank, and incentives, concessions and waivers, subject to certain conditions in Planning Commission Resolution No. 7358 ("Conditions of Approval"). One of the Conditions of Approval requires that four (4) of the units in the Development are to be affordable to low-income households with incomes up to eighty percent of the San Diego Area Median Income (80% AMI) in fulfillment of the City's Inclusionary Housing Ordinam:e, Carlsbad Municipal Code, Chapter 21.85, and the Residential Density Bonus Ordinance and Incentives or Concessions, Carlsbad Municipal Code, Chapter 21. 86. C. Developer requested and received from City a thirty-five percent (35%) density bonus and incentives or concessions to provide fifteen percent (20%) of the development (exclusive of the bonus units) for housing affordable to low-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 1 CA 2/5/2013 Incentives or Concessions Ordinance (CMC Chapter 21.86). This Affordable Housing and Density Bonus Agreement satisfies the requirements ofCMC 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 Aft<>rdable Housing Obligation and Conditions of Approval. Jn order to satisfy the Conditions of Approval of the pennits 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 four (4) units of the Development are constructed for the purpose of providing housing to be affordable to low-income households according to the schedule and terms contained herein ("Affordable Units"). A total of 22 market rate units and four (4) 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 three units in the numbers and with the square footages indicated in the table below. Unit Size Number of Units by Income Level Total (% AMI) Number of Approx. square Low bedrooms feet 60% One bedroom 590-592 s.f. 3 3 Two bedroom 992 s.f. 1 1 TOTALS 4 4 2.2 Affordabilitv Requirements. four (4) Affordable Units shall be restricted to occupancy by households vvith incomes not exceeding 80% of the area median income (AMI) for San Diego County, adjusted for actual household size. Monthly rents of the Affordable Units shall not exceed 1112th of 30% of 60% of the household Al\.11 for San Diego County, adjusted for assumed household s ize appropriate for the unit pursuant to the Regulatory Agreement. 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 req uired 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 CA 5/ I 2/20 I 12 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-familv Units. Developer shall provide the Affordable Units concurrent \Vith the Project's market rate units. 3. City ApprovaJ 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 detetmining the eligibility of tenants of the Affordable Units. 3.2 A form of Rental Agreement. 3.3 A Property Ylanagement Plan. 3.4 A form of regulatory a&rreement between the Developer and the City (''Regulatory Agreement"), following a fonnat designated by the City. 4. Compliance Report. Following completion of construction of the Affordable Units, a Compliance Report meeting the rcqui remenls 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 Services Manager, commencing on the first Report Date that is twelve (12) months from the completion of construction of the Affordable Units. 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 Services Manager, 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 Services Manager with a third party certification addressed to the City. 5. Release of Subject Propertv from A2rccmcnt. The covenants and conditions herein contained shall apply to and bind the Developer and its heirs, executors, administrators, successors, transferees, and assignees having or acquiring any right, title or interest in o r to any part of Property and shall run vvith and burden the Property until terminated in accordance with the provisions of Section 12 hereof. The Developer shall expressly make the condit ions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in such propetty. The burdens of this Agreement, except for such burdens as may be released as set forth above, CA 5/12/20113 shall remain in full force and effect and recorded against the Development for the 55-year duration of this Agreement. 6. Default. Failure of the Developer to cure any default in the Developer's obligations under the terms of this Agreement vvithin 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 constitute a failure to satisfy the Conditions of Approval with respect to the Property and the requirements of Chapters 21.85 and 21.86 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 Chapters 21.85 and 21.86 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 ,,.·ill indemnify and hold harmless (without limit as to amount) City and its elected officials, officers, employees and agents in their official capacity (hereinafter collectiveJy 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, derr.ands, 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 Property 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 Services Manager prior to the issuance of any building permit for the Property. 10. Notices. All notices required pursuant to this Agreement shall be in \\Ti ting 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 f011h below: TO THE CITY OF CARLSBAD: City of Carlsbad Housing and Homeless Services Department Housing Services Division CA 5/12/20114 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: Housing Services Manager Email: Housing@car1sbadca.gov Fax: 760-720-203 7 TO THE DEVELOPER: },,i-C r3 j../ 12. :t:.,µ 11"-tY.JTYf\ f:,'-{ T a D -(!,.._y"e,,{o/l /1°'1 oA--; .J-3 J>c7d 1/2 tJ. [) el. {2;e7 Y,?"rb4 t.-,'f\./1:Jlt I CA q ),,,;f'f'.7 'f-1 r-/tt, D 17.s ~4--1. Al De=:.J/1.:L {OFU :r AL Gr,, V fY1 pv.,y..; 7Jtt-692-q; 2-,_.::;' 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 Services Manager. 13. Recording of Agreement. The parties hereto shal I 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 j urisdiction, the remaining portions of this Agreement shall nevertheless be and remain in full force and effect. IN WITNESS WHERE Or, the parties hereto have caused this agreement to be executed as of the day and year first above written. DEVEL 01~::· • By: II /4-~~A. r ~ By: Signature . Title: [l}Pl-ltl-(fr7Jj Jf).Mi,t{Jd._ Title: M#Mfh/, /2, i2t<(f/!fU'J>f: !Jtflilk, Dated: /?~2l.-Dated: I J-/ 1/2c J/ I St~:,, of Caurornfa County of Q {kg., .L csutiscribea end swom (or afftnnldJ to befo/i me this ~day~ ~oa by N~ L~~a;, proved to me O'} the bal1 of Htllfactory evidence to CA 5/12/70 11-bethepemon~me. ' · · -) Slgnature,_ ... ~-=::iii:::::;;,...==--==---- 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 ojfice(s) signing to bind the corporation.) ({l 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 FOR.1\11 Celia A. Brewer, City Attorney CA 5/12/20116 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE§ 1189 8803@ l);ll..Al :@IOI ~Effllli!llY a a ft~lifllOlH O Ol:~ ~ 1Hllfinu1 llfilffl!I l)fJl !110@611Hllltffi A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California } ~~- Here Insert Name and Title of the personally appeared _____ r,___._Jf ............... ~...._...-fdJ""--'-"+---'-kt___._.U._..W~...,h.........,.~----------- .!3me(s) orsJ,;er(sJ} who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. AMBER MOLIFUA Notary Public -California San Diego County ! , Commission It 2306534 "' My Comm. Expires Sep 24, 2023 Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ___________________________ _ Document Date: _____________________ Number of Pages: ____ _ Signer(s) Other Than Named Above: _______________________ _ Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: □ Corporate Officer -Title{s): ______ _ □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □ Other: □ Other: Signer is Representing: _________ _ Signer is Representing: _________ _ ; ]IIJ1_ □ □ □ □ □ □ ! ! 2 GU11Q : ™6 □ □ l [l" [JOO l J0018@81fJ"O □ E E Mn Jlll@ ©2018 National Notary Association EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOVv' lS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN Df EGO, STATE OF CALIFORNIA, AND TS DESCRIBED AS FOLLOWS: LOTS 35 AND 36 OF LA COSTA SOUTI I UNIT NO. 1, TN THE CITY Of CARLSBAD, COUNTY OF SAN DIEGO, STA TE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 6117, FILED IN THE OFFICE OF THE COU).!TY RECORDER OF SAN DIEGO COUNTY, JUNE 3, 1968. APN: 216-170-14-00 and, 216-170-15-00 7 CA 2/5/2013