HomeMy WebLinkAboutPrevious Experience City of Portland Workforce HousingThe Lafayette has 75 LIHTC units and 26 market units. The 75 units include:
• 10 – 40% units
• 19 - 50% units
• 46 – 60% units
I have attached a copy of our Workforce Housing (aka IZ= Inclusionary zoning) Agreement for the
following properties:
• The Linden has 196 units | 23 are reserved for workforce housing.
• Riverdam has a total of 73 units | 8 are reserved for workforce housing.
• The Armature has a total of 171 units | 20 are reserved for workforce housing.
CITY OF PORTLAND
Workforce Rental Housing Agreement
This Workforce Rental Housing Agreement (the “Affordability Agreement”) is entered
into by and among the CITY OF PORTLAND, a public body corporate and politic with its
principal place of business at 389 Congress Street, Portland, Maine, 04101 (“City”) and West
Bayside Partners, LLC a Maine limit liability company with a mailing address c/o Port Property
Management, Inc., 82 Hanover Street, Suite 5, Portland, Maine, 04101 (“Developer”).
W I T N E S S E T H
WHEREAS, the City has established a workforce housing requirement (the “Workforce
Housing Ordinance”) in the Affordable Housing provisions of its Land Use Ordinance (Portland
City Code §§ 14-484 to 488), and related regulations promulgated by the City’s Planning Board,
which is intended to encourage production of housing that is affordable for households with
moderate income; and
WHEREAS, Developer owns property located at 132 Marginal Way, in the City of
Portland, Maine, which property is more particularly described in Exhibit A, attached hereto and
made a part hereof (the “Property”); and
WHEREAS, the Developer plans to construct a multi-family development project
consisting of 192 rental units on the Property (the “Development”); and
WHEREAS, on August 13, 2019, the City’s Planning Board approved the Development,
on the condition the Developer provide nineteen (19) affordable one-bedroom units, and four (4)
affordable two-bedroom units on site in accordance with the Workforce Housing Ordinance (the
“Workforce Units”) and
WHEREAS, in order to fulfill the provisions of the Workforce Housing Ordinance,
Developer hereby agrees to certain restrictions on the rental amounts to be charged to tenants in the
Workforce Units on the terms and conditions hereinafter provided and in accordance with Maine
law, including 33 M.R.S.A. Sec. 121 et seq.;
NOW THEREFORE, in consideration of the mutual undertakings set forth herein, the City
and the Developer hereby agree as follows:
1. Parties’ Intent. The terms and conditions contained herein have been freely and voluntarily
accepted by the parties, each with the independent and informed advice of legal counsel. The
provisions and restrictions contained herein exist to further the mutual purposes and goals of
the Developer and the City set forth herein to create and preserve access to decent and
affordable housing for moderate-income households in the City of Portland. It is the express
understanding and intent of the parties that the terms and conditions hereof will enhance the
affordability of the Workforce Units to moderate-income households who, without such
provisions, would be unable to afford to rent property in the City similar to the Workforce
Units.
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2. Term. The term of this Affordability Agreement shall be for a period beginning on the date
that it is recorded in the Cumberland County Registry of Deeds (the “Effective Date”) and
ending on the date that is ninety-nine (99) years from the Effective Date.
3. Enforceability of Covenants. The covenants and restrictions set forth herein are intended to
be and shall be considered covenants that run with the real estate described in Exhibit A
attached hereto and made a part hereof and shall bind all subsequent owners and holders of any
interest in said real estate, except to the extent herein provided. The City may enforce the
covenants set forth herein as a contract beneficiary. The covenants set forth herein shall
survive a sale, transfer, or other disposition of the Development by Developer and shall survive
a foreclosure or transfer of title in lieu of foreclosure but shall cease to apply to the
Development in the event of involuntary noncompliance caused by substantial destruction,
seizure, requisition, or change in law or an action of a governmental agency that prevents the
City from enforcing the covenants, even though compensated by insurance.
4. Covenants. Developer hereby covenants and represents to the City as follows:
a. Development. The Development shall consist of the land described in Exhibit
A attached hereto, together with all improvements, which after completion of the
work will contain a total of one hundred ninety-two (192) units of rental
housing, and related amenities. The Workforce Units shall be owned and
operated by Developer and shall include nineteen (19) one-bedroom units, and
four (4) two-bedroom units of rental housing and shall be of comparable quality
and have comparable amenities to other units in the Development. The
Workforce Units may float among the total units comprising the Development, it
being the intent hereof that the specific units within the Development that are
designated as Workforce Units may change from time to time so long as there
are at all times nineteen (19) one-bedroom and four (4) two-bedroom Workforce
Housing Units within the Development. Developer shall not make any change
in the nature, size, number or location of the units in the Development if such
changes would change Developer’s obligations under or compliance with the
Workforce Housing Ordinance.
b. Use. The Developer shall rent a Workforce Unit only to an Eligible Household,
as that term is defined herein. Any purported lease, transfer or other disposition
of a Workforce Unit to any other person or entity done without following the
procedures set forth below, or in violation of the rent limitations set forth below,
shall be null and void. For purposes hereof, the parties agree that the term
“Eligible Household” means a moderate income person or household with a
gross income not exceeding 100% of the HUD Greater Portland Metropolitan
Statistical Area Median Income (the “AMI”) figures for a household of that size.
c. Interior Standards for Workforce Units. The Workforce Unit shall be
constructed such that it includes the basic amenities set forth in the City’s
“Inclusionary Zoning Implementation Guidelines for Developers of Rental
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Housing” in effect as of the date hereof.
d. Marketing. During the Developer’s initial leasing of the Workforce Units for
the Development, in each instance that the Developer intends to rent a
Workforce Unit, the Developer shall give the City’s Housing and Community
Development Office written notice of such intent at the time that it lists the
Workforce Unit(s) for rent, provided, however, that the Developer shall not be
required to deliver such notice to the City once the initial leasing of the
Workforce Units is complete. In all cases, however, when listing a Workforce
Unit for rent, unless otherwise agreed to by the City, the Developer shall satisfy
all requirements of the Workforce Housing Ordinance and the Workforce
Housing Regulations then in effect.
e. Eligible Household; Income. For the term of this Affordability Agreement, at
the time a lease for a Workforce Unit is signed, a tenant must be an “Eligible
Household”. When determining income eligibility, the City will reference the
AMI figures published annually by HUD for the Portland Metropolitan
Statistical Area. If at a time in the future HUD no longer provides these annual
figures, the City will identify another similar method of determining income
guidelines for affordability.
The City shall determine eligibility based on a household’s gross income using a
process similar to what HUD recommends for its HOME program or another method
deemed commercially reasonable by the City. Developer will collect and compile all
of the relevant documents and information needed to assess a household’s eligibility
and Developer will provide it to the City upon request pursuant to the terms and
conditions of this Affordability Agreement and/or in connection with the Developer’s
Workforce Unit Report (as such term is hereinafter defined)..
In addition to screening for income eligibility, the Developer will retain the right to
screen tenant applications for the Workforce Units in the same manner as it does for the
Development’s market rate units.
No employee, agent, stockholder, member, manager, officer, or director, of
Developer, and no family member thereof (related by blood, marriage, or operation of
law), and no employee, agent, stockholder, member, manager, officer, or director, of
any entity related to Developer, and no family member thereof (related either by blood,
marriage, or operation of law) may qualify for a Workforce Unit. Employees of the
City’s Planning Authority will not be eligible for a Workforce Unit in the City.
Household Preference. Household preference for Workforce Units shall be
given, to the extent permitted under law, to Eligible Households in accordance
with the Workforce Housing Ordinance and the Workforce Housing
Regulations then in effect.
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f. Maintenance of a Waiting List. Developer is encouraged to maintain a waiting
list of potentially Eligible Households.
g. Determination of Affordable Monthly Rent; Security Deposits. To maintain
consistency of Workforce Units within the City, the maximum allowable rent for
the Workforce Unit (the “Workforce Rent”) will be set by the City and will be
based on the minimum household size per bedroom (based on the AMI) of the
minimum household size allowed per bedroom less utilities as follows:
0.30 x (annual income based on minimum household size at 100% AMI / 12) less
tenant-paid utilities = Workforce Rent
Developers may choose to include some or all utilities within the total rent. Utilities
that effect Workforce Rent calculations include electricity, heat, hot water, cooking
energy, sewer, water, and trash collection. For all utilities listed that are not included
by the Developer in the rent, the City shall make reasonable assumptions based on a
unit’s bedroom count as to the monthly cost of each utility. To determine what is
reasonable, the City may utilize the figures estimated by HUD and distributed through
the Portland Housing Authority annually for similar utility allowances based on a
unit’s bedroom count. The City shall reserve the right to determine a different metric
should the HUD figures be unavailable or a better metric be determined.
The Developer may require first and last month’s rent and a security deposit from
tenants. Each of these three expenses shall not exceed the value of one month of rent.
If the Developer requires a parking spot(s) be leased with the Workforce Unit and
charges a separate fee, then parking may be counted similarly to the utilities above and
shall be subtracted from housing related expenses for calculating the maximum
allowable rent.
Developers may rent to a household utilizing other rental subsidies such as vouchers,
provided, however, that the total rent paid shall never be in excess of the maximum
allowable Workforce Unit rent for a determined bedroom size.
The maximum allowable rent determination is subject to City’s final approval, which
shall be granted or denied promptly upon request, and which shall be made in
accordance with the terms of this Affordability Agreement.
h. Household Size. Household size/composition at the time that a lease for
Workforce Unit is signed should be consistent with the schedules set forth
below.
The schedule below indicates the minimum household size for each unit type based on
bedroom count:
Minimum Household Size By Bedroom
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Studio/One-Bed: 1
Two-Bed: 2
Three-Bed: 3
Four-Bed: 4
Workforce Units are also be subject to maximum household sizes based on bedroom
counts. The schedule below indicates the maximum number of persons allowable per
bedroom assuming the occupants meet all other requirements related to qualifications
for determining a household size:
Maximum Household Size By Bedroom
Studio/One-Bed: 2
Two-Bed: 4
Three-Bed: 6
Four-Bed: 8
If Developer finds it difficult to rent a Workforce Unit to an Eligible Household that
meets the established minimum size requirements, the Developer may request that the
City allow the Developer to rent the unit in this singular instance to an Eligible
Household smaller than the minimum household size described herein. The Developer
must make reasonable marketing efforts, as determined by the City, to find Eligible
Households of a qualified size for at least thirty (30) days prior to requesting a
household minimum size waiver. Any such waiver is only for a single applicant and
that household’s recertification. Rent shall be calculated based on the smaller
household size. Once the Workforce Unit is again vacant, the minimum household
sizes set forth herein shall apply to future tenants. Under no circumstances will
households be allowed to exceed the maximum household size.
i. Workforce Unit Leases. All leases for Workforce Units shall be a year in length
with the rent consistent throughout the term of the lease. The maximum rent
allowable will be the Workforce Rent determined at initial application and
during any recertification process prior to the renewal of a lease, as set forth
below. All Leases for Workforce Units shall comply with the Workforce
Housing Ordinance and the Workforce Housing Regulations in effect at the time
of such lease to the extent not inconsistent with the terms of this Affordability
Agreement.
j. Recertification of Workforce Units. Prior to the renewal of a Workforce
Unit’s lease, and not more than one per year, the Developer shall require that the
tenant recertify that their household meets the eligibility and household size
requirements for the Workforce Unit. The same process and documentation will
occur as was required with the initial application to lease the Workforce Unit.
Unless the Developer can demonstrate that the tenant has violated a material
term(s) of the lease, that the tenant is refusing to comply with the requirements
of the recertification process, or that the tenant does not wish to renew the lease,
no other households may be considered for a lease of a Workforce Unit.
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A household is considered to have failed to participate in the recertification process
after not sufficiently responding to three (3)written requests for information and
documents by the Developer or City within a 60-day period. The City shall make the
final determination as to whether Developer has provided sufficient evidence to
substantiate a household’s failure to participate in the recertification process.
k. Loss of Workforce Unit Status. A unit shall lose its designation as a
Workforce Unit when two consecutive recertifications demonstrate that a once
Eligible Household’s income is greater than the allowed AMI and is no longer
considered eligible. In this scenario, the Developer may, with ninety (90) days’
notice, charge market rent for the unit. The tenant is then eligible for continued
occupancy in the particular unit at market rent for one additional year following
the date of the most recent recertification. After any adjustment in accordance
with the above, the next available appropriate unit that will substitute for the
former Workforce Unit shall be rented to an Eligible Household, so as to restore
and maintain the number, unit size, and bedroom count of Workforce Units
originally intended under this Affordability Agreement, subject, at all times, to
the Developer’s right to allocate different units within the Development as
Workforce Units as described in Section 4(a) above.
If no suitable unit becomes available to rent as a Workforce Unit within a year of the
time the former Eligible Household begins paying market rent, then the Developer
shall not renew or extend the former Eligible Household’s lease and shall return the
unit to its use as a Workforce Unit for Eligible Households.
In the case where the tenant has been accepted as a market rate tenant, the Developer
shall pay to the City’s Housing Trust the cash value of the difference between the
maximum allowable Workforce rent and the market rent until such time as another unit
has been approved by the City as an acceptable substitute Workforce Unit and occupied
by an Eligible Household. Occupancy during this transition period by an over-income
household will not constitute default under the conditions set forth in this Affordability
Agreement so long as Developer is making such payments to the City’s Housing Trust.
l. Primary Residence. An Eligible Household shall occupy the Workforce Unit
as its primary residence. An Eligible Household may not sublet the apartment for
any reason. An Eligible Household must notify the City if it is absent from the
Workforce Unit for thirty (30) days in any forty-five (45)-day period. If the
Eligible Household is absent from the Workforce Unit for a period exceeding
sixty (60) days in one consecutive three hundred sixty (365) day period for
reasons other than work obligations, health, or emergency reasons, then the
Eligible Household’s eligibility will be terminated (in the City’s reasonable
discretion) and their lease term shall not be renewed or extended. Where
absences in excess of the above limitations are caused by work obligations,
health reasons or other emergency, the City may require verification of the
reasons for the tenants’ absence. If tenants fail to comply with such requests for
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verification, their lease shall not be renewed or extended. Incarceration does not
constitute a health or other emergency justifying prolonged absence from the
Workforce Unit.
m. Administration & Record Keeping. Developer shall maintain an Eligible
Household’s application, recertification forms and all related documentation,
and any third party verifications throughout the Eligible Household’s occupancy
of a Workforce Unit and for a period of at least three (3) years thereafter. The
Developer shall provide copies of these records to the City within ten (10)
business days if requested. The Developer shall also keep all Workforce Unit
applications and waiting lists for a period of at least three (3) years. The
Developer will file an annual report to the City within one hundred twenty (120)
days of the end of each calendar year providing information related to
Workforce Unit vacancies, waitlists for Workforce Units, recertifications with
respect to Workforce Units, and any other relevant and reasonable information
the City requests with respect to the Developer’s compliance with the terms and
conditions of this Affordability Agreement (the “Developer’s Workforce Unit
Report”).
5. Construction and Duration. The covenants contained herein shall run with the land for the
term of this Affordability Agreement. Developer covenants and agrees for itself, and its
assigns that the rights and restrictions contained herein shall be for the benefit of the City, its
successors and assigns, and shall be binding on all future purchasers of the Property until the
termination or expiration of this Affordability Agreement. Developer and the City agree and
intend that this Affordability Agreement and the covenants contained herein are to be
interpreted as “Affordable Housing Covenants” as defined by 33 M.R.S.A. Sec. 121 and
satisfy the Workforce Housing Ordinance.
6. Violation. In the event the Developer fails to comply with the covenants set forth herein, and
fails to cure such non-compliance within any applicable cure period, the City shall be entitled
to exercise any of its rights under this Affordability Agreement and applicable law, maintain an
action in law or in equity against the Developer to recover damages incurred by the City from
such failure, including, without limitation, reasonable attorneys’ fees and costs, and to require
the Developer (through injunctive relief or specific performance) to comply with the
provisions and covenants set forth herein and to immediately cure any failure to comply with
the covenants set forth herein by the Developer.
7. Indemnification. Developer shall indemnify and hold City and its agents harmless from and
against any and all claims, demands, liability, loss, cost or expense (including, but not limited
to reasonable attorney’s fees and other costs of litigation) which may be incurred by the City
arising out of or in any way related to the Developer’s breach of any of its obligations under
this Affordability Agreement or any action taken by the City to enforce or exercise its rights
under this Affordability Agreement as a result of such breach, except for claims arising from
the gross negligence or willful acts of the City or for claims arising from Developer’s applying
a provision of the Affordability Agreement that is subsequently deemed unlawful by a court of
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law. The obligations under this section shall survive the termination or expiration of this
Affordability Agreement as necessary to effectuate its provisions.
8. Modifications. This Affordability Agreement may be amended or modified, in whole or in
part, only by written agreement of Developer and the City clearly expressing the intent to
modify this Affordability Agreement.
9. Severability. The invalidity of any clause, part or provision of the Affordability Agreement
shall not affect the validity of the remaining portions thereof.
10. Successors and Assigns. This Affordability Agreement shall be binding upon Developer’s
respective heirs, personal representatives, executors, administrators, transferees, successors
and assigns and shall inure to the benefit of and be enforceable by City, its successors,
transferees and assigns.
11. Governing Law. The Affordability Agreement shall be construed in accordance with and
governed by the laws of the State of Maine.
12. Additional Documents. The Developer shall execute such other documents the City
reasonably deems necessary in order to effectuate the intent and purpose of this Affordability
Agreement and the intent and purpose of the City’s Workforce Housing Ordinance.
13. Notices. Any notice or demand required or provided for in this Affordability Agreement shall
be in writing and shall be deemed to have been sufficiently given for all purposes when
hand-delivered or mailed by certified or registered United States mail, postage prepaid, or sent
by overnight United States mail or overnight commercial delivery service to the Developer or
the City at their respective addresses set forth herein, or at such other address as either of them
may from time to time hereafter designate by notice given to the other as herein provided.
IN WITNESS WHEREOF, this Affordability Agreement has been duly executed by the
Developer and City as of _______________, 2019.
CITY OF PORTLAND
___________________________ By:______________________________
Witness Jon P. Jennings
Its City Manager
WEST BAYSIDE PARTNERS, LLC
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By: Marginal Way Management, LLC, its Manager
_______________________________ By:________________________________
Witness Name:Thomas E. Watson
Its: Manager
State of Maine
Cumberland, ss. _____________, 2019
Personally appeared the above named Thomas E. Watson, Manager of Marginal Way
Management, LLC, a Maine limited liability company, in its capacity as Manager of West Bayside
Partners, LLC, a Maine limited liability company, and acknowledged the foregoing instrument to
be his free act and deed in said capacity and the free act and deed of said limited liability company.
Before me,
__________________________________
Notary Public/Attorney-at-Law
__________________________________
(Print or type name)
State of Maine
Cumberland, ss. _____________, 201_
Personally appeared the above named Jon P. Jennings, City Manager of the City of
Portland, and acknowledged the foregoing instrument to be his free act and deed in his said
capacity and the free act and deed of said City of Portland.
Before me,
__________________________________
Notary Public/Attorney-at-Law
__________________________________
(Print or type name)
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EXHIBIT A
(Description of the Property)