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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 Illlli I IIII I III IIIil 1111111111Iill 111111111 Illf 111[ 111[ 1111 I I III Jill NO FEE *$ 8 0 0 0 7 8 2 5 5 1 5$* 201500047184611:27 am 89114115 47 411 Al2 9 0.00 0.00 0.00 0.00 24.00 0.00 0.00 0.00 (Space above for Recorder's Use Only) 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"). 2225 4 Irvine—Bays - Affordable Housing Covenant:2225 4 Document Number: 2015000471846 Page: 1 of 10 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. 22254 Irvine_Bays - Affordable Housing Covenant2225 4 Document Number: 2015000471846 Page: 2 of 10 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 22254 Irvine—Bays - Affordable Housing Covenant:2225_4 Document Number: 2016000471846 Page: 3 of 10 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 Document Number: 2015000471846 Page: 4 of 10 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 [Remainder of Page Left Intentionally Blank] [Signature Page to Follow] 2225_4 Irvine - Affordable [lousing Covenant:2225_4 Document Number: 2015000471846 Page: 5 of 10 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 �l , , ... ��: • ► n VV U A! =1 Name: Title: [Additional Signature Page to Follow] 2225_4 Irvine—Bays - Affordable Housing Covenant:2225_4 Document Number: 2015000471846 Page: 6 of 10 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 Document Number: 2015000471846 Page: 7 of 10 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 Document Number: 2015000471846 Page: 8 of 10 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 2225_4 Document Number: 2015000471846 Page: 9 of 10 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 Document Number: 2015000471846 Page: 10 of 10