HomeMy WebLinkAboutC-6291 - Affordable Housing Agreement for the BaysPLEASE RECORD AND RETURN TO:
._City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
Attn: City Clerk
WITH A COPY TO:
The Irvine Company LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel's Office
Recording Fee: Exempt
(Cal. Gov. Code §§ 6103 & 27383)
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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AFFORDABLE HOUSING AGREEMENT FOR THE BAYS
THIS AFFORDABLE HOUSING AGREEMENT ("Agreement"), effective as of
G_ , 2015, is between BAYS APARTMENTS NEWPORT LLC, a Delaware limited
liability company ("Bays"), and THE CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"), and is made on the basis of the following facts intentions
and understandings:
A. Bays is the owner of The Bays, an apartment complex located at 1 Baywood Drive,
Newport Beach, California 92660, consisting of three multifamily residential projects commonly
known as Baywood, Bayview and Bayport, each as described in the attached Exhibit "A"
("Property"), which is incorporated by reference herein.
B. The City and an affiliate of Bays, The Irvine Company LLC ("Irvine"), entered into that
certain Zoning Implementation and Public Benefit Agreement pursuant to California
Government Code Sections 65864-65869.5 dated as of January 18, 2008, and recorded in the
Official Records of Orange County ("County Records") as document number 2008000051429
("Initial Zoning Implementation Plan"). The Initial Zoning Implementation Plan was amended
pursuant to that certain Amendment to Zoning Implementation and Public Benefit Agreement
dated as of August 14, 2012 and recorded in the County Records as document number
2012000508849 ("Amended Zoning Implementation Plan", and together with the Initial Zoning
Implementation Plan, "Zoning Implementation Plan"). The Zoning Implementation Plan sets
forth certain affordable housing requirements, as are further set forth in that certain North
Newport Center Planned Community Affordable Housing Implementation Plan, prepared for the
City in June of 2012 ("AHIP").
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C. Irvine is developing another multifamily residential project consisting of 524 dwelling
units located at the southeast corner of Jamboree Road and San Joaquin Hills Road known as the
San Joaquin Plaza Apartments ("Project").
D. In connection with the Project and in accordance with the terms of the Zoning
Implementation Plan and the AHIP, Bays will designate and phase into the Property a total of
105 affordable housing units ("Affordable Units"). The Affordable Units will target moderate
income households.
NOW THEREFORE, in full satisfaction of the affordable housing requirements set forth in
the Zoning Implementation Plan and the AHIP ("Affordable Housing Requirements") relating to -
the provision of Affordable Units, it is agreed as follows:
1. Before a certificate of occupancy for the applicable number of housing units in
the Project, Bays will designate and make the Affordable Units available for occupancy in
complete and full satisfaction of the conditions to the Affordable Housing Requirements all as
provided in this Agreement. The Affordable Units will be made available for occupancy as
follows: 35 Affordable Units will be made available before or concurrent with the occupancy of
the first 100 units in the Project; 35 additional Affordable Units will be made available before or
concurrent with the occupancy of the 200th unit in the Project; and the balance of the Affordable
Units will be made available before or concurrent with the occupancy of the 300th unit in the
Project. Bays shall designate the specific units that will constitute Affordable Units in written
notice to the City. From time to time, and with the City's prior written permission, Bays may
designate one or more unrestricted units as an Affordable Unit and for each such unit Bays may
designate Affordable Unit of similar size to no longer be restricted hereunder. Leases for the
Affordable Units shall prohibit subleasing and transient occupancy and shall require that the
Affordable Unit is the occupants' principal place of residence. In addition, leases for the.
Affordable Units shall include the following occupancy limits:
Bec�irooms } tiUccgpncy
Studio I Minimum 1 person, Maximum 2 persons
1 Bedroom I Minimum 1 person, Maximum 3 persons I
12 Bedroom I Minimum 2 persons, Maximum 5 persons
2. Prior to the initial leasing of the Affordable Units to an Qualifying Tenant, each
unit shall be inspected by the City and corrections shall be made by the Bays, if required, to
ensure life -safety (e.g. egress windows, GFCI protected receptacles, smoke/ carbon dioxide
detectors, etc.) and proper maintenance issues (e.g. condition of kitchen and bath cabinets,
fixtures, appliances, and floor finishes) have been addressed to the satisfaction of the City.
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3. For a period of 30 years after the date that the first unit within the Property is
rented as an Affordable Unit under Section 1 above ("Affordability Period"), the Affordable
Units shall be rented to persons or families earning up to one hundred twenty percent (120%) of
the County's area median income adjusted for family size, but no less than eighty one percent
(81%) of the County's area median income adjusted for family size as published from time to
time by the California Department of Housing and Community Development ("HCD") pursuant
to the requirements of California Health and Safety Code Section 50093(c) ("Qualifying
Tenants"). If HCD no longer publishes the data referred to above, then such equivalent source as.
the parties may agree upon shall be substituted. The annualized rents chargeable for occupancy
of the Affordable Units shall not exceed 30% of the qualifying income limits upon which the
eligibility of the renting person or family was based, as adjusted for household size.
4. Bays will be responsible for ensuring that persons or families who rent the
Affordable Units properly qualify to occupy the units under the terms of this Agreement.
Selection of the tenants of the Affordable Unit shall be made on the basis of criteria that are
neutral as to race, religion, creed, color, ethnic group identification, sex, sexual preference, age,
source of income (e.g., Temporary Assistance for Needy Families ("TANF"), or Supplemental
Security Income ("SSI")), mental or physical disability, national origin or marital status or any
other Constitutionally impermissible standard. Bays shall discharge its responsibility under this
Section 3 as follows:
a. Bays shall require each applicant for occupancy of an Affordable Unit
("Applicant") to certify that the gross income of the occupants of the Affordable
Unit does not exceed the qualifying income limits specified in Section 2 above
(an "Income Certification"), and Bays may rely upon such Income Certification in
conjunction with verifiable income eligibility documentation in qualifying that
Applicant.
b. Bays shall reserve the right under the lease for each Affordable Unit to terminate
the tenancy for the Affordable Unit upon 60 -days' written notice upon the
occurrence of any or all of the following: (i) the discovery of any
misrepresentation as to income available to the tenant, (ii) the tenant is unable to
provide an Income Certification demonstrating that such tenant is a Qualifying -
Tenant on a Qualification Date, or (iii) the tenant is otherwise in default under the
terms of the lease.
c. On each anniversary date of this Agreement (or such other date as agreed upon
by City and Bays) ("Qualification Date"), Bays shall submit to the City electronic
copies of the Income Certifications with supporting income eligibility
documentation, tenant lease agreements, and project status summary report
reflecting unit and tenant data in a format established by the City. Once a tenant
is qualified for occupancy of an Affordable Unit as provided above, that tenant
shall be deemed to have qualified for occupancy until the next Qualification Date.
Thereafter, each tenant must be requalified on each Qualification Date by having
to provide a current Income Certification and related supporting income eligibility
documentation, and such Income Certification and income eligibility
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documentation shall be provided to the City in electronic form as soon as
practicable following re -certification. Notwithstanding anything else contained in
this Agreement, Bays shall not be in default of its obligations to lease the
Affordable Units to Qualifying Tenants (i) in the event it leases an Affordable
Unit to a tenant that is not a Qualifying Tenant in good faith reliance on an
Income Certification that indicates such tenant is a Qualifying Tenant but that
contains misrepresentations by the tenant or (ii) in the event that an updated
Income Certification from an existing tenant indicates that the tenant is no longer
a Qualifying Tenant, provided, in each case, that Bays promptly takes steps to
evict such tenant pursuant to the terms of such tenant's lease, or designate another
suitable unit pursuant to Section 1 of this Agreement..
5. The parties agree that any breach of this Agreement by Bays will irreparably injure the.
City and that monetary damages, or any other legal remedy, would be inadequate to
remedy such a breach. The parties further agree that the City, in the event of a breach of
this Agreement by Bays, may obtain an Order of the Superior Court, requiring Bays to
specifically perform in accordance with this Agreement, and that the City may seek
interim injunctive relief pending the issuance of such an Order.
6. If either party is required to initiate litigation to enforce the terms and conditions of this
Agreement or to seek damages by reason of the breach of the terms and conditions of this
Agreement, each party shall bear its own attorneys' fee and costs.
7. Notices required or permitted under this Agreement shall be sufficiently given if made in
writing and delivered either personally or by registered or certified mail, postage prepaid,
to the following addresses, or to such other address as may be designated for formal
notice:
If to the City:
City of Newport Beach
City Manager
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
If to Bays:
Bays Apartments Newport LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attention: Treasurer
With a Copy to:
Such property manager as designated by Bays
2225_4 lrvine_Bays - Affordable Housing Covenant:2225_4
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and to:
The Irvine Company LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attention: General Counsel
Either party may designate a different mode or address for notice to it by written direction to the
other.
8. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
9. No change in or addition to all or any part of this Agreement except as provided in this
Agreement shall be valid unless in writing and signed by or on behalf of each of the
parties.
10. If any portion of this Agreement is held by a court or arbitrator of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the provisions of this Agreement
shall be remain in full force and effect and shall in no way be affected, impaired or
invalidated.
11. This Agreement constitutes the entire understanding between the parties as to the subject
matter of this Agreement, superseding all negotiations, prior discussions and preliminary
agreements or understandings, written or oral.
12. This Agreement shall be governed by, and construed and enforced under the laws of the
State of California. Venue shall be in Orange County.
13. The parties shall each execute and deliver or cause to be executed and delivered any
further instruments and documents and shall take any other action as may be reasonably
required to more effectively carry out the intent and purpose of this Agreement. This
Agreement may be executed in multiple counterparts, all of which shall constitute one
and the same instrument, and each of which shall be deemed to be an original
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[Signature Page to Follow]
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written.
WHEREFORE, this Agreement has been made and entered into as of the date first above
BAYS APARTMENTS NEWPORT LLC,
a Delaware limited liability company
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Name:
Title:
[Additional Signature Page to Follow]
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WHEREFORE, this Agreement has been made and entered into as of the date first above
written.
«CIt,»
City of Newport Beach,
a California municipal corporation
By:
Dave Kiff
City Manager
ATTEST:
LeiL- i I. Brown
City Clerk -.ddff1ENW�
g
APPROWASBy:
aron C. Harp CA to ra It t
City Attorney
2225_4 Irvine—Bays - Affordable Housing Covenant:2225_ 4
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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 ORANGE )
On L1 t,t--4 5 20 15,, before me, YYte� S4zar►da Notary Public,.
personaltV appeared YLaro, , 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.
PAMELA STANDISH
Commission # 2087703
(SEAL) z '� Notary Public • California
Orange County
MY Comm. Expires Oct 26 ,20181
Notary Public
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 ORANGE )
On c U 5 S O is befor me, Vk� LAISH a Notary Public,
person y 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/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.
Notary Public
(SEAL)
PAMELA STANDISH
Comedtslon #t 2037703
ZWWOMM.W
Notary Public •California Z
Orange County
res Oct 26, 2018
2225_4 Irvine_Bays - Affordable Housing Covenant:2225_4
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to in this Grant Deed is situated in the City of Newport Beach, County of
Orange, State of California, and is described as follows:
PARCEL]:
PARCEL 1, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 35, PAGE 1 OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE
COUNTY.
PARCEL 2:
PARCEL 1, AS SHOWN ON A PARCEL MAP FILED IN BOOK 35, PAGE 2 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 3:
PARCELS 1 AND 2 AS SHOWN ON PARCEL MAP NO. 84-705 FILED IN BOOK 189,
PAGES 6 THROUGH 16, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPTING FROM A PORTION OF SAID LAND ALL OIL, OIL RIGHTS, MINERALS,
MINERAL RIGHTS, NATURAL GAS, NATURAL GAS RIGHTS, AND OTHER
HYDROCARBON BY WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR
UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING -
THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR
ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY
DRILL AND MINER FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED,
OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE
SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS
UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO
REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY,
SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500
FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AS
RESERVED BY THE ROMAN CATHOLIC BISHOP OF LOS ANGELES IN DEED
RECORDED NOVEMBER 06, 1960, IN BOOK 9130, PAGE 724 OF OFFICIAL RECORDS.
APN: 458-351 -05 and 458-461.01 and 458-302-06 and 458-302 -09
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a
THIS IS A CERTIFIED COPY OF Tlp,
RECORD IF IT BEARS THE SEAL
SIGNATURE OF THE ORANGE
COUNTY CLERK -RECORDER.
DATE: 11/1912015
CERTIFICATION FEE: 10.00
COUNTY CLERK -RECORDER
M
ORANGE COUNTY
STATE OF CALIFORNIA
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