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HomeMy WebLinkAboutSDP 2018-0004; BNR INVESTMENT & DEVELOPMENT LLC; 2022-0089709; Affordable Housing Agreement/ReleaseRECORDING 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 DOC# 2022-0089709 1111111 11111 lllll 11111111111111111111 lllll 1111111111111111111111111111 Feb 28, 2022 02:29 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: SO.DO (S82 Atkins: $0.00) 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 2017-0151) This AFFORDABLE HOUSI~G AND DENSITY BONUS AGREEMENT IMPOSING REST~CTIONS ON REAL P~OPERTY (''Agreement"), entered into this '1 ff\ day of J).e,e&h'\. b..,..-1.. , '2~2j by and between the CITY OF CARLSBAD, a municipal corporation ("City"), and BNR Investment & Development, LLC, a California Limited Liability Company ("Developer") is made with reference to the follov.,ing: A. D~~eloper 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 23 residential units on the · Property ("Development"), consisting of 20 market rate and three (3) affordable apartments. The City has approved the Site Development Plan for the Development. On July 15, 2020, the Planning Commission approved a site development plan and residential density bonus (SDP 2018-0004), which said approval was upheld by the City Council on appeal on Nov. 17, 2020 (City Council Resolution No. 2020-223). The Planning Commission approval specifies the grm1ting of increased density, additional units from the City's excess dwelling unit bm1k, and incentives, concessions m1d waivers, subject to certain conditions in Planning Commission Resolution No. 7377 ("Conditions of Approval''). One of the Conditions of Approval requires that three (3) of the units in the Development are to be affordable to very low-income households with incomes up to fifty percent of the San Diego Area Medim1 Income (50% AMI) in fulfillment of the City's Inclusionary Housing Ordinance, 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 (15%) of the development (exclusive of the bonus units) for housing affordable to very low-income households. CA 2/5/2013 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 fnclusionary Housing Ordinance (CMC Chapter 21.85) and in the Residential Densily Bonus and Incentives or Concessions Ordinance (CVfC 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: I. 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 Donus and Incentives or Concessions Ordinance (CMC Chapter 21.86) shall not be satisfied unless three (3) units of the Development arc constructed for the purpose of providing housing to be affordable to very low-income households according to the schedule and terms contained herein ("Affordable Units"). A total of 20 market rate units and three (3) 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 Hedroom 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 lncome Level Total (% AMI) Number of Approx. square Very Low bedrooms feet 50% One bedroom 641-678 s.f 3 3 TOTALS 3 3 2.2 Affordability Requirements. Three (3) 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. Monthly rents of the Affordable Units shall not exceed I/12th of 30% of 50% of the household AMI for San D iego County, adjusted for assumed household size appropriate for the unit pursuant to the Regulatory Agreement. For purposes of this Agreement, "Rent" shall indude 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 frorn any default by the tenant or damage caused by the tenant, or fees or charges paid by the tenant to CA 5/12/201 12 third party utilities or other providers). Median income figures shall be those determined by the United States Department of Housing and Urban Development from t ime 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 unless the rcqui rcmcnts 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 Mult i-family Units. Developer shall provide the Affordable Units concun-cnt with the Project's market rate units. 3. City Approval of Documents. The fo llowing documents, to be approved in V-.'fiting by the City, shall be used in connection vdth the rental of Affordable Units. 3 .1 A marketin g plan consistent with the terms of this Agreement, establishing the process for seeking, selecting and determining the eligibility of tenants of the Affordable Units. 3 .2 A fonn o{ Rental Agreement. 3 .3 A Property l\danagement Plan. 3.4 A form ofregulatory agreement between the Developer 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 Tnclusionary 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 Repmi Date that is t\'-/elve (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 ce1iification addressed to the City. 5. Release of Subject Propertv from Agreement. 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 or to any part of Property and shall run with and burden the Properl)' until tenninated in accordance with the provisions of Section 12 hereof. 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 such property. CA 5/12/2011 3 The burdens of this Agreement, except for such burdens as may be released as set forth above, 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 lhe Developer's obligations under the terms of thi s 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 whhin 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 requfrements 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 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" lndemnitees"), 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 Indemnitccs, 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 prope11y damage, including coverage for contractual liability and projeci.s 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 13est's Key Rating of not less than A-:VII, such insurance to be evidenced by an endorsement which so provides and delivered to the J lousing Services Manager prior to the issuance of any building pennit 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 ce1tified 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 CA 5/12/20 I 14 [ lousing Services Di vision 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: l lousing Services Manager Email: Housing@,carl sbadca.1rnv Fax: 760-720-203 7 TO THE DEVELOPER: r?,i..JJ)._ T.A.J~Srfht?JJT d D-e-vero/11)~\i'/I UC .?-3 f ac1 1/iA--~~ /2.ro N oc~.11--:1--tf) F c.Y.r..JJe-r., e,_om Fi!-¥'. '7 It/ -6~ 2--9 I 2 5 Any party may change the address to \Vhich 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 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. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above vvritten. DEVELOPER 17. By: /Llf ~ .. Si~ature Title: / [li1-fa/f?Ji?J ~Jl!.< Dated: [:2 / 7 / )-o l-( CA 5/12/20115 l I S /\, Signature . / Q Title: )/4_£cJ. ~ UL--:'., (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.) ({f 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: Al2.J Ron Kemp, Assistant Ci Dated: ~ ff '1 lo-Ir= ---,,....--,.....r, ------ CA 5/12/20116 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 09tl!O( II( : -~~:Mfflffi)iij.,12 DDDDCHt 2 @ [MfflJ~IOfWlillaro»@DDOjl(J(J O □ J j j dtUOOORRi l(J~fttOUJ80R 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. who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted, executed the instrument ········i AMBER MOLIFUA Notary Pu_blic • California 2 San Diego County 1: Commis5iOn # 2306 534 - y 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(ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ D Corporate Officer -Title(s): _______ _ □ Corporate Officer -Title(s): ______ _ o Partner -□ Limited □ General □ Partner -o Limited D General o Individual o Attorney in Fact □ Individual D Attorney in Fact o Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator D Other: □ Other: Signer is Representing: _________ _ Signer is Representing: _________ _ ©2018 National Notary Association EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STA TE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOTS 393 AND 394 OF LA COSTA SOUTH UNIT NO. 5, fN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALifORNIA, ACCORDING TO MAP THEREOF NO. 6600, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCI-I 10, 1970. APN: 216-300-12-00 and, 216-300-13-00 7 CA 2/5/2013