Agenda Item No. 13
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Fermin Preciado, Director of Development Services/City Engineer Benjamin Matlock, Planning Manager/City Plannerok
Madeline Jordan, Assistant Planner
FOR: City Council Meeting of September 12, 2022
SUBJECT: Fonel, LLC, A California Limited Liability Company (Bogh DBA): A Density Bonus Agreement for (Case No. 21-034/CUP/DBA/ARC/LUCR) to allow a 100% increase in Iand density and permit a 32-unit Senior Housing Project on a 1,97-acre parcel located at 12301 Yd Street; APN: 0319-351-02,
RECOMMENDATION:
That the City Council approve the attached Density Bonus Agreement (DBA) for the Bogh Senior Housing Project which will set forth the reporting requirements and covenants that are necessary to ensure that the target senior rental units associated with Case No. 21-034/CUP/DBA/ARC/LUCK remain available as intended by the original density bonus request that was associated with the approved entitlement.
BACKGROUND:
Division 3, Chapter 1, Article 7 of the City's Development Code contains provisions for processing density bonus projects, which are designed to provide incentives for the production of housing for very low-income, low-income, moderate -income, and senior households in accordance with State Law, by allowing additional units to offset the costs of providing affordable housing. Pursuant to the City's Development Code, a 100% increase in density is permitted for senior housing projects; however, before the Project is constructed, a formal Density Bonus Agreement (DBA) is required to be approved by the City Council. The DBA process is identified in the Conditions of Approval, and will set forth the reporting requirements and covenants that are necessary to ensure that the target units remain available as intended by the density bonus request.
At the regular City Council Meeting of October 22, 2018, the City Council provided preliminary approval of draft DBA template language, applicable forms, and their content to satisfy one of the permitting requirements of a density bonus application pursuant to Section 83.010735 of the City's Development Code. Two different draft agreements were presented: one agreement provided language specific to a traditional "for -rent" senior housing project, and one agreement provided language for a "for -sale" project. Both agreements were established to ensure that future projects maintain compliance with age restrictions to qualify as senior housing projects, and additionally to help streamline and expedite timelines for these future projects. The draft DBA for a "for -rent"' senior housing Project was utilized to prepare the proposed Bogh DBA (attached). -220-
FoneI, LLC, A California Limited Liability Company (Bogh DBA) City Council Meeting of September 12, 2022
At the regular PIanning Commission Meeting of June 16, 2021, the Planning Commission approved Case No. 21-034/CUP/DBA/ARC/LUCR. The Project included a Conditional Use Permit with Architectural Review and Density Bonus Agreement to permit a 32-unit Senior Housing Project, as well as a Land Use Compliance Review for an entry monument sign. The applicant had also requested an incentive to reduce the minimum private open space requirement per Yucaipa Development Code Section 88.0210(e) for ground floor units from 150 square feet to 117 square feet, and 100 square feet to 97 square feet for second floor units with balconies. Consistent with State Law, and Yucaipa Development Code Section 83,010715(c)(1), an incentive, defined as a reduction in site development standards or a modification of the requirements of the City of Yucaipa Development Code, may be requested through the Density Bonus Agreement process if an applicant agrees to construct at least ten (10) percent of the total units for low-income households and five (5) percent of the total units for very low-income households. The applicant had initially agreed to abide by this affordability component to qualify for the Development Code incentive; however, while preparing construction drawings for Building and Safety Department review, they were able to redesign the units to achieve compliance with the minimum private open space requirement.
Further, because the Project is now consistent with the Development Code, the attached DBA has no formal commitment to an affordability component.
Additional private unit amenities associated with the Project approval include: decorative doors, a refrigerator, a microwave, a washer and dryer, and oversized closets. Public open space and common area landscaping are proposed for the residents within the development, as well as site amenities that will include a dog park, a barbeque island with picnic tables, a pickle bar court for outdoor recreation, and ten (10) private storage units to accommodate space for resident's personal items located behind the park provided at the rear of the property.
DISCUSSION:
As noted in the staff report and Conditions of Approval, the applicant would be required to record and execute a formal DBA that is approved by the City Council prior to the issuance of building permits for the Project. The D13A includes provisions to ensure that the Project maintains compliance with age restrictions to qualify as a senior housing project, and that it also provides the appropriate multi -family site amenities and individual unit amenities pursuant to Section 88.0215 and Section 88.0210 of the City's Development Code. It should be noted that this process is simply a ministerial action to meet the previously approved Project's Conditions of Approval.
Attachments: Bogh Density Bonus Agreement (DBA)
Case No. 21-034/CUP/DBA/ARC/LUCR Approved Plans
Approved by:
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Yucaipa
34272 Yucaipa Blvd,
Yucaipa, CA 92399
Attn: City Clerk
With a copy to:
Mark Bogh
401 W. 411 Street
Beaumont, CA 92223
s: 0319-351-02
ABOVE TIIIS LINE FOR RECORDER'S
Exempt from Recording Fees Pursuant to Government Code Section 27383
DENSITY BONUS AGREEMENT
(SENIOR HOUSING; RENTAL PROJECT)
THIS DENSITY BONUS AGREEMENT ("Agreement") is dated as of September 12, 2022, and is entered into by and between FoneI, LLC, A California Limited Liability Company (the "Developer"), and the CITY OF YUCAIPA, a California municipal corporation (the "City" ).
RECITALS
A. California Government Code Section 65915(b)(1)(C) provides that a city shall give a density bonus as described in Government Code Section 65915(f , upon application by a developer if the developer agrees to construct a senior citizen housing development, as defined in Section 51.3 of the California Civil Code, and that all cities shall adopt an ordinance that specifies how Section 65915 will be implemented.
B. The City has implemented California Government Code Section 65915(b)(1) and (0 by enacting Yucaipa Development Code Sections 83,010705 et seq. (in Division 3, Chapter 1, Article 7 of the Development Code), which, subject to certain limitations, contemplates a density bonus to encourage development of senior housing.
C. Developer has requested City to consider the approval of a density bonus agreement which will grant such a density bonus for Developer's development of the real property in the City described on Exhibit "A" ("Site"),
D. The Developer proposes to construct a senior housing residential rental project, consisting of 32 apartment units, including thirty-one (31) senior units and one (1) manager's unit on the Site ("Project').
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AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
Definitions. In this Agreement, the following terms shall have the following meaning:
a. "City" is the City of Yucaipa, California.
b. "Project" is the development described in Recital D above.
C. "Qualified Occupant" shall mean households consisting of a person who is fifty- five (55) years of age or older and any qualified permanent residents under the applicable provisions of California Civil Code Section 51.3 and the federal Fair Housing Act (except to the extent the Project utilizes federal funds whose programs have more stringent definitions for senior projects, in which case those definitions will apply).
2. Binding Effect of Agreement. The Developer hereby subjects the Site and development thereon to the covenants, reservations and restrictions as set forth in this Agreement in perpetuity. The City and the Developer hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall encumber and "run with" the Site and be binding upon the Developer's successors and assigns and successor to any interest in the Project. Each and every contract, deed or other instrument hereinafter executed, covering or conveying the development or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions expressed in this Agreement, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument.
3. Restrictions on Units; Oualifted Occupant. Thirty-one (31) of the units in the Project shall be rented to and occupied by households which include at least one Qualified Occupant (the "Senior Units").
4. Term. The term of this Agreement shall continue until the later of: (i) the date that is 55 years after the first rental of a unit to a Qualified Occupant; or (ii) the date on which construction commences, in accordance with applicable law and permits, on a project that is not a senior rental housing project after the demolition or destruction of the Project.
5. No Conversion. During the term hereof, all residential units in the Project shall remain rental units. During the term hereof, no apartment unit in the Project shall be eligible for conversion from rental units to condominiums, townhomes or any other common interest subdivision without consent of the City Council.
On -site. Manager. One (1) on -site manager unit will be provided for the Project.
7. Submission of Materials and Annual Review. Prior to occupancy of a Senior Unit, Developer shall submit to City its occupant selection procedures which shall detail the methods which Developer shall use to advertise the availability of Senior Units in the Project and screening mechanisms which Developer intends to use to limit the occupancy of the Senior Units to Qualified Occupants, On or before [September 12] of each year following the first leasing of any Senior Unit, the Developer, or its representative, shall file a certificate of continuing program compliance with the City. -2-
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Each. such report shall contain such information as City may require including, but not limited to, the following:
a. A project occupancy profile;
b. A description of the physical condition and maintenance procedures for the Project, including apartment units, landscaping, walkways and recreational areas.
The number of persons per unit;
d. Qualified Occupant name and address (unit);
e. Initial occupancy date;
f. Copies of all documents used by Developer to certify the occupant household as a Qualified Occupant.
g. Copies of the leases (rent may be redacted).
City shall be allowed to conduct physical inspections of the Project as it shall deem necessary, provided that said inspections do not unreasonably interfere with the normal operations of the Project and reasonable notice is provided. City shall repair any damage and shall defend, indemnify and hold Developer harmless from and against any claims, liabilities, damages, costs, expenses incurred by Developer relating in any way to City's inspections and investigations.
8. Selection of Qualified. Occupant. Developer shall determine the eligibility for occupancy of Senior Units under the terms of this Agreement, Verification of eligibility shall be based on the following information and any other information reasonably requested by City: Reasonable documentation of age of each Qualified Occupant (such as birth certificate; current driver's license; etc.)
9. Development lncentive(sl. Pursuant to Government Code Section 65915(b)(1) and (f) and Yucaipa Municipal Code Section 83,010715(b)(4), the City grants Developer the following incentives for development of the Project: A 100% Density Bonus to allow 16.2 dulac.
10. Project Design Amenities for Senior Citizens. The Project open space, buildings and individual units shall be designed with physical amenities catering to the needs and desires of the senior citizen residents. The following physical amenities shall be included in the Project:
a. Senior Unit sizes shall be 1,082 square feet for twenty-four (24) 1-bedroom, 1- bathroom residential units and 1,325 square feet for eight (8) 2-bedroom, 2-bathroom residential units.
C. All common access areas in the Project such as entryways, walkways, and hallways will be wide enough to accommodate wheelchairs; d. The Project will meet all applicable current requirements for access and design imposed by law as administered by the City building and safety department, including, but not limited to, the Fair Housing Act (42 U.S.C. Sec. 3601 et seq.), the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.), and the regulations promulgated at Title 24 of the California Code of Regulations that relate to access for persons with disabilities or handicaps; -3-
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e. The Project shall be designed and constructed to encourage social contact by providing sidewalks to connect the units to the proposed landscaped amenities. Common open space area will also be provided by a dog park, a barbeque island with picnic tables, and a pickle bar court for outdoor recreation.
f. The Project shall be completed and available for occupancy (i.e., a certificate of occupancy shall have been issued) by June 29, 2024 (subject to delays beyond the control of Developer).
However, the City Manager of City may extend such deadline, provided the extension(s) are in writing,
11. Indemnification. Developer shall defend, indemnify and hold City and its elected officials, officers, agents and employees harmless from claims, liabilities, losses, damages and costs and expenses arising from or relating to: (i) personal injuries, including death, and property damage which may arise from the activities of Developer or those of its contractor, subcontractor, agent, employee or other person acting on its behalf which relate to the Project; and (ii) any fair housing claims.
Notwithstanding the foregoing, this provision shall not apply to any such claims which arise out of, or by reason of, the sole negligence or sole willful misconduct of the City.
12. Event of Default. Developer is in default under this Agreement upon the happening of one or more of the following events or conditions:
a. If a warranty, representation or statement made or furnished by Developer to City and is inaccurate in any material respect when it was made; b. A breach by Developer of any of the provisions or terms of this Agreement, after notice and opportunity to cure as provided in Section 14 below. 13, Enforcement. In the event of a default under the provisions of this Agreement by Developer is not corrected within thirty (30) days after such notice is given, then City may, without further notice, declare a default under this Agreement and City may then enforce as any normal violation of the standards and provisions of the Yucaipa Development Code, or Yucaipa Municipal Code, applicable to this Agreement. However, notwithstanding the foregoing, City may at any time apply to any court, state or federal, for injunctive relief against any violation by Developer of any provision of this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement are available to the parties to pursue in the event that there is a breach of this Agreement.
14. Developer Representation Re: Priority. Developer represents and warrants that this Agreement, when recorded, is senior and prior to all deeds of trust and other liens, except for liens for property taxes and assessments not yet due.
15. No Waiver of Remedies. City does not waive any claim of defect in performance by Developer if upon periodic review City does not enforce or terminate this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.
15. Rights of Lenders. Should Developer place or cause to be placed any encumbrance or lien on the Project, or any part thereof, subordinate to this Agreement, the beneficiary ("Lender") of said encumbrance or lien, including, but not limited to, deeds of trust, shall have the right at any time during the term of this Agreement and the existence of said encumbrance or lien to:
a. Do any act or thing required of Developer under this Agreement, and any such act or thing done or perforrned by Lender shall be as effective as if done by Developer itself; -4-
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b. Realize on the security afforded by the encumbrance or lien by exercising foreclosure proceedings or power of sale or other remedy afforded in lave or in equity or by the security document evidencing the encumbrance or lien;
G. Transfer, convey or assign the title of Developer to the Project to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to court order or pursuant to a power of sale contained in a trust deed; and
d. Acquire and succeed to the interest of Developer by virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed.
None of b., c. or d. shall, however, affect the continuing validity of this Agreement.
17. Notice to Lender. If Developer shall have provided City in writing with the name of the Lender and a copy of its recorded deed of trust showing its address for notices, then City shall give written notice of any default or breach under this Agreement by Developer to such Lender and if the default can be cured by the payment of money, City shall give Lender the opportunity after service of the notice to cure the breach or default within sixty (60) days after delivery of said notice. is. Notices. ,Any notice required to be given by the terms of this Agreement by either party to the other shall be provided by certified mail, return receipt requested, at the address of the respective parties as specified below or at any other such address as may be later specified by the parties hereto in a notice given pursuant to this Section,
Developer: Mark Bogh
401 W. 4"1 Street
Beaumont, CA 92223
City: City of Yucaipa
34272 Yucaipa Blvd,
Yucaipa, CA 92399
Attn: Benjamin Matlock
19. Attorneys' Fees, in any proceedings arising from the enforcement of this Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover its costs and its reasonable attorneys' fees incurred during the proceeding as may be fixed within the discretion of the court.
20. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California.
21. Partial Invalidity. If any provisions of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
22, Recordation. This Agreement shall be recorded in the Official Records of the County Recorder of the County of San Bernardino prior to the issuance of any building permit(s) for the Project.
23. Time of Essence. Time is of the essence of every provision hereof in which time is a factor.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective on the Effective Date set forth herein.
DEVELOPER:
Fone 1, LLC, A. Ca 'fornia Limited
Liability C pan
Bv:
Name: Mark Bogh
Title: Manager
CITY:
CITY OF YUCAIPA,
a municipal corporation
By:
D. Andrew Avila
ATTEST:
, City Clerk
APPROVED AS TO FORM:
L-15
David M. Snow, City Attorney
Mayor
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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 )
On A3J(4.jGt -012-, , before me, eje)_Q
(insert name an title Q9the officer)
Notary Public, personally appeared _ _ 1/ (J +3a1 ,
who proved to me on the basis of satisfactory evidence to be the persons) 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/herltheir 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 nay hand and official seal.
MISHELE OLDENBURG
aMy
Notary Public • CatiforniaRiverslde CountySignature (Seal) Commission N 2101505 Comm. Expires Aug 15, 2023
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN BERNARDINO CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
ALL THAT PORTION OF BLOCK 112 AND 140, REVISED MAP OF YUCAIPA CITY, IN THE
CITY OF YUCAIPA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECOR.EDED IN BOOK 17, PAGES 91 THROUGH 93, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING 153.2 FEET NORTH OF THE SOUTHWEST CORNER OF BLOCK 112, THENCE NORTH 132 FEET; THENCE EAST 660 FEET TO A POINT 594 FEET NORTH OF THE SOUTHEAST CORNER OF BLOCK 140; THENCE SOUTH ALONG THE EAST LINE OF SAID BLOCK TO A POINT 462 FEET NORTH OF THE SOUTHEAST CORNER OF BLOCK 140; THENCE WEST 660 FEET TO THE POINT OF BEGINNING, AREAS AND DISTANCES ARE COMPUTED TO TIME STREET CORNER.
ASSESSOR'S PARCEL NUMBER: 0319-351-02
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