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HomeMy WebLinkAboutSDP 2018-0018; Woodside 05S; 2023-0078709; Affordable Housing Agreement/ReleaseRECORDING REQUESTED BY: City of Carlsbad WHENRECORDEDMATLTO: City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: City Clerk DOC# 2023-0078709 1111111 111111111111111 1111111111 11111111111111111111111111111111111111 Mar 28, 2023 09:47 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES $0.00 (SB2 Atkins $0.00) PAGES 12 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 AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY (DEV2017-0178) This AFFORDABLE HOUSING AGREEM!NT IMPOSING RESTRICTIONS ON REAL PROPERTY ("Agreement"), entered into this 1 day of ~ ·z.n .:~ by and between the CITY OF CARLSBAD, a municipal corporation ("City"), and WOODSIDE 05S, LP, a California limited partnership and property owner ("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 95 residential units on the Property ("Development"), consisting of 76 market-rate residential townhome condominiums and 19 stacked flat affordable condominiums units on the Property, which shall be rented to income eligible tenants at restricted affordable rents. Developer has requested and the City has approved a Site Development Plan for the Development and an allocation of residential units from the Excess Dwelling Unit Bank pursuant to City Council Policy 43, and subject to certain conditions of approval ("Conditions of Approval") with respect to affordable housing. One of the Conditions of Approval requires that nineteen (l 9) of the units in the Development (or 20% of the total residential units) are to be affordable to lower-income households w ith incomes not exceeding eighty percent (80%) of the San Diego Area Median Income in fulfillment of the City's Inclusionary Housing Ordinance, Carlsbad Municipal Code, Chapter 21.85 and required by Planning Commission Resolution No. 7 1 14 for an all ocation of excess dwelling units to allow for a rezoning of the Development from office to residential and a 20% requirem ent total for Affordable Units. C. Developer is required by the Conditions of Approval by P lanning Commission Resolution No. 739 l to enter into an Affordable Housing Agreement as required and with the content specified by the City's Inclusionary Housing Ordinance (CMC Chapter 2 1.85). This Agreement is that Affordable Housing Agreement required pursuant to Section 2 1.85.140 of CMC Chapter 2 1.85, 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. CA 5/12/20 I I NOW, THEREFORE, it 1s 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 Site Development Plan 2018-001 8, the requirements of the City's lnclusionary Housing Ordinance (CMC Chapter 21.85) and Planning Commission Resolution No. 7114 (excess dwelling units and rezoning approval) shall not be satisfied unless 19 units of the Development are constructedfor the purpose of providing housing to be affordable to lower-income households according tothe schedule and terms contained herein ("Affordable Units"). A total of 76 market rate unitsand at least 19 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 consist of 19 units in the bedroom count and with the approximate square footages as indicated in the table below, as may be modified in the final construction documents approved by the City. Not less than ten percent (10%) of all Affordable Units shall be three (3) bedroom units in compliance with CMC 2 1.85.010(A)(2). The 19 units (including one unrestricted manager's unit) are expected to be provided in the unit size with the approximate square footages noted in the table below. Number of bedrooms/ Approx. net square feet Total bathrooms 1 bedroom/lbathroom 560 5 2 bedroom/1 bathroom 765 2 2 bedroom/2 bathroom* 775 6 3 bedroom/2 bathrooms 1005 6 Total 19 *Includes I unrestricted manager's unit 2.2. Affordability Requirements. The Affordable Units shall be restricted to occupancy by households with incomes not exceeding 80% of the median incomefor San Diego County, adjusted for actual household size. Monthly rents of the Affordable Units shall not exceed l/ 12 of 30% of 70% of the median household income for San Diego County, adjusted for assumed household size appropriate for the unit pursuant to the Regulatory Agreement. For purposes of this Agreement, "Rent" shall include a uti li ty allowance as established and adopted by the City of Carlsbad Housing Authority, as well as all required monthly payments made 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 (but notincluding fees or charges resulting from any default by the tenant or damage caused by thetenant, 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 2 CA 5/12/2011 Development from time to time, and as published by the California Department of Housing and Community Development. For the purposes of calculating the applicable rents for the affordable housing units, assumed household size shall be: 2 persons for a 1 bedroom unit; 3 persons for a 2 bedroom unit; and, 5 persons for a 3 bedroom unit. With respect to each Affordable Unit, the affordability requirements of this Section 2.2 shal I continue for 55 years from the date of issuance of a Certificate of Occupancy by the City for such unit. The affordability requirements of this Section 2.2 shall continue for fifty-five (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 shall provide the Affordable Units concurrent with the Project's market rate units. In order to satisfy this requirement Developer and/or its successor shall receive a release of bui lding pennits for the market rate and Affordable Units on the schedule set forth below, and outlined in Ex hibi t B. 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, "commencement of construction" shall mean certification of building pads and initiation of framing construction activity consistent with the approved building permit(s) for the Affordable Units and which results in at least one approved inspection by the City. 2.3.1 Initial Release of Building Permits. Building Permits for the Affordable U nits may be released at any time following execution and recordation of this Agreement. Following execution and recordation of this Agreement, the Developer may begin to obtain building permits for the market rate units, with no more than 34% (or 26 units total) of the market rate unit building permits released by the city in this phase. 2.3.2 Second Release of Building Permits. Upon submittal to the City of Carlsbad Housing and Homeless Services Director of a copy of the Recorded Deed confirming full transfer of ownership of the identified property for the Affordable Units from the Developer and/or its successor to Mirka Investments, LLC, a California limited liability company, the Affordable Housing Developer, Developer may obtain building permits for an additional 41 % of the market rate units (or an additional 31 market rate building permits). 2.3.3 Final Release of Building Permits. Developer may obtain a final release of building permits from the city for the remaining market rate units (19 total) upon commencement of construction of the Affordable Units on the property. However, there shall be no certificate of occupancy or occupancy otherwise granted on the final 19 market rate units until such time as the construction of the Affordable Units is complete and the units are ready for occupancy. 3 CA 5/12/201 l 2.4 Occupancy Standards -Minimum/Maximum. The occupancy standards set forth below shall apply to the 19 Affordable Units at all ti mes: Number of bedrooms Minimum Occupancy Maximum Occupancy 0 I 2 I I 3 2 2 5 3 3 7 2.5 Additional Documents. Prior to issuance of the certificate of occupancy for the first affordable unit, Developer shall prepare and submit for review by the City the fo llowing additional documents to ensure compliance with the terms of this Agreement: 2.5.1 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. 2.5.2 2.5.3 A form of Rental Agreement. A Property Management Plan. 2.5.4 A form of regulatory agreement between the Developer and the City ("Regulatory Agreement"), consistent with the terms of this Agreement following a format designated by the City, which shall be recorded against the property containing the affordable units. 3. Compliance Report. Following completion of construction of the Affordable Units, a Compliance Report meeting the requirements of CMC Section 2 1.85.140 of the Tnclusionary Ordinance, verifying compliance of all completed Affordabl e 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 (1 2) 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, thosereports may be deemed satisfactory for the purpose of this section by the Housing and Homeless Services Director, with respect to the Affordable U nits 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. 4. 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 having or acquiring any right, title or interest in or to any part of the Property and shall run with and burden the Property until terminated in accordance with the provisions of Section 11 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 the Property. 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. Notwithstanding the foregoing, the 4 CA 5/12/20 1 l burdens and liabilities of Developer under this Agreement shall automatically terminate as to each of the 57 individual market-rate residential units identified in the first two phases identified in section 2.3 upon City's issuance of a certificate of occupancy, or equivalent final inspection, and conveyance of the unit to a homebuyer. Tn order to effectuate termination of this Agreement as to such individually sold market-rate units, upon the request of Developer or the escrow officer for the initial sale of each such market-rate unit, City agrees to execute and deliver to the escrow officer an appropriate partial release document to be recorded at the closing of the sale if such unit. For the avoidance of doubt, such partial release as to any individual market-rate units shall not release Developer of any of its obligations or liabilities under the Agreement, and as to the final 19 individual market rate units, the release will not occur until after the affordable units have received certificates of occupancy, consistent with the Phasing Schedule set forth in Exhibit B. 5. 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 curedwithin 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 fai lure 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 Approvalwith respect to the Property and the requirements of Chapter 2 1.85 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, thewithholding of further building permits for the market rate units within the Development until such cure is completed. 6. 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 performthe City's obligations under this Agreement. 7. 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. 8. Insurance Requirements. Developer shall obtain, at its own expense, commercial general liability insurance for development of the Property naming lndemnitees as additional named insureds with aggregate limits of not less than two million dollars ($2,000,000), 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. 5 CA 5/12/2011 9. 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 Departmen t 1200 Carl sbad Village Drive Carlsbad, CA 92008 Attn: Housing and Homeless Services Director Email: Housing@carJsbadca.gov Fax : 760-720-2037 TO THE DEVELOPER: WOODSIDE 05S, LP Attn : President/Executive Director 1250 Corona Pointe Court, Suite 500 Corona, Ca. 928 79 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. J 0. 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. I I. Duration of Agreement. This Agreement shaJI remain in effect for fifty- five (55) years following the date on which certificates of occupancy, or equivalent final inspections, have been issued for all AffordableUnits. 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. I 2. 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. 13. Assignment/Successors and Assigns. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Developer shall have the right and obligation to assign its rights and obligations under this Agreement to any successor who acquires fee title to the Property ("Successor Developer"), and upon any such conveyance, Developer shall deliver to the City an 6 CA 5/12/20 11 Assignment and Assumption Agreement verifying that Successor Developer is assuming and agreeing to perform all of Developer's obligations and li abilities under this Agreement. Upon City approval of said Assignment and Assumption Agreement, Developer shall be relieved of its obligations hereunder. 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. TN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above written. CITY OF CARLSBAD By: {LL~ Signature /tMo...v...d.t>-lA NS Title: Housing and Homeless Services Director Dated: __ l-__ }_J-_f!_J_;.,_0_2_J __ Dated: 3/, / ~~ ---~--------- (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 Cindie McMahon, City Attorney By:4-1--=~:;.__=--~t=---Dated: __ ~_/_,_/_z.._3 ____ _ ' 7 CA 5/12/20 11 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 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 County of R, v-<:X::::':>\<1.Q } On ~, a.@3 before me, l;en\5e J~ t\)o\Q(Ll_ \JUJQ\~c_, Date Here Insert Name and Title ofthe Officer personally appeared __ LX\.,,_, 1 ""'-'--'._,._X---"l"S--'-'C...jU.....,__""'p "'-'bL..L.>-ef..a.... _ _:~....w-""'=::..i........,'-'-\---=C;=--~-=-----=----------- Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islar/ sybscribed, to the within instrument and acknowledged to me that he/~/th9¢ executed the same in his/h.Eef'/tl'feir authorized capacity(ies), and that by his/hef,'tt,Jir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. DENISE JOVE Notary Publtc • California I_ ~ R1Verslde County Commission # 236 7232 11.y Comm. Expires Jul 22, 2025 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. Place Notary Seal and/or Stamp Above s;gnature [k .p ~ ~DA", Signature of Notry Public 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: □ Corporate Officer -Title(s): ______ _ □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Trustee □ Attorney in Fact □ Guardian or Conservator □ Individual □ Trustee □ Attorney in Fact □ Guardian or Conservator □ Other: □ Other: Signer is Representing: _________ _ Signer is Representing: _________ _ BO 0:001 ~DR000:8:QOOOOUU ROIJO B 001:Dl0080:ooo:8'l08oa mm £880080 0 ID HffllJ:e:o BC~ D)000@8J[J@OI) 0:01III80 ©2019 National Notary Association CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT 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 Countyo~ ~o ) On -d)r,_,, afi '7i dD~~efore 1, k Jfl,,,.j}----rl'J__~ , (here ,nsert name and P'J~ ,t)u-k:,l..c._. personally appeared C.t ~ ~) 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 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. Optional Information TAMARA R~ CLOUD-MCMINN [ COMM. #2407464 z Notary Public • California ~ San Diego County - ~~!{'"¥' My Comm. Ex ires June 8, 2026 (Seal) Although the information in this section is not required by law, it could prevent fraudu lent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. The prece · Certificate of Acknowledgment is attached to a document titled/for the purpo containing The signer(s) capacity or authority is/are as: D lndividual(s) D Attorney-in-Fact D Corporate Officer(s) --------~,.C....---------~ D Guardian/Conservator D Partner -Limited/General D Trustee(s) .,,,. D Other: _________________________ _ Name(s) of Person(s) or Ent1ty(1es) Signer i; Representing Additional Information Method of Signer Identification isfactory evidence: otarial event is detailed in notary journal on: Page# Entry# Notary contact: ___________ _ Other D Additional Signer(s) D Signer(s) Thumbprint(s) C Copyright 2007-2021 Notary Rotary. PO Box 4 I 400, Des Moines, IA 503 I 1-0S07. All Rights Reserved Item Number 101 772. Please contact your Authorized Reseller to purchase copies of this form. EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Parcel 3 of City of Carlsbad Minor Subdivision No. 04-08 recorded by the County Recorder of the County of San Diego on July 11 , 2012 as Parcel Map No. 20982 8 CA 2/5/2013 EXHIBITB PHASING SCHEDULE FOR LA COSTA TOWN SQUARE RESIDENTIAL, PARCEL 3 Schedule of Market Rate Number of Certificate of Construction Building Market Rate Occupancy Activities/Triggers Permits Building for Release of Released Permits Building Permits (76 total) Affordable Grading 0 Housing permits Agreement recorded Building concurrent with Permits for 0 recording of Final Affordable Map Units (19 total) Building Permit for 0 Club House No restriction Building 26 total (34%) on Certificate Permits for 26 of Occupancy market rate units Copy of Recorded Deed to City of Building 31 total (41 %) No restriction Carlsbad Permits for 31 on Certificate documenting market rate of Occupancy formal transfer of units property ownership for Affordable Unit parcel of land from Developer to Affordable Unit Developer/Builder Commencement of Construction of 19 total (25%) 9 CA 2/5/2013 -- the Affordable Building Market rate Units, which Permits for units may means final 19 proceed with certification of market rate construction, pads and building units will not be framing approved for construction certificate of activity underway occupancy, or and at least one equivalent approved final inspection is inspection, complete until affordable housing units complete construction and receive certificate of occupancy or equivalent final inspection IC CA 2/5/2013