2008-440730
Recording Requested By:
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DOC # 2008-0440730
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FREE RECORDING REQUESTED
PURSUANT TO GOV. CODE SECTION
27383
AUG 18,2008
4: 18 PM
I] FFI [I.~.L F: E CIJ R D S
'3,/l,N DIECiI] CCiUrHY F:EDJF:DEF:'~; OFFICE
GREC1I]R\' ,,I ~;MITH. CI]UNT'T RECI]RDER
FEE~; 0.00
City of Encinitas
Planning and Building Department
505 S. Vulcan Avenue
Encinitas, CA 92024
PAGES: 10
11111111111111111111111111111111111111111111111111111111111111111111111111111111
And When Recorded Mail To:
City of Encinitas
Planning and Building Department
505 S. Vulcan Avenue
Encinitas, CA 92024
Attn: Housing Coordinator
APN: 258-161-11-00 j
~t'\\r ~ AFFORDABLE HOUSING REGULATORY AGREEMENT
C\ \ ?-CX \0
~hiS Affordable Housing Regulatory Agreement (hereinafter the "REGULATORY
AGREEMENT") is made and entered into and is effective as of this 5th day of August, 2008 by
and between the City of Encinitas (hereinafter the "CITY"), and Pacific Station Property LLC
(hereinafter the "OWNER").
RECITALS
A. Whereas, the OWNER is the owner of real property located at 687 South Coast
Highway 101, Encinitas, CA (hereinafter the "PROPERTY") described in
Attachment A, attached hereto and made a part hereof;
B. Whereas, on April 11, 2008, the CITY passed and adopted Resolution 2007-09,
which approved a Tentative Map, Major Use Permit, Design Review and Coastal
Permit (05-237) that permits the construction and condominium subdivision of a
three-story, mixed-use development with 47 residential units, retail space, office
space, and restaurant space;
C. Whereas, to satisfy the provisions of Municipal Code Chapter 24.21, OWNER
agrees to reserve four of the residential units (hereinafter the "UNITS) as affordable
UNITS and comply with the tenant qualification and rent restrictions contained
herewith; and,
Affordable Housing Regulatory Agreement (Pacific Station)
Page 1 of 8
D. Whereas, in order to restrict use of the affordable UNITS, the OWNER is bound
by this REGULATORY AGREEMENT and has consented to be regulated and
restricted as provided herein
NOW, THEREFORE, the parties hereto agree as follows:
1. TERM OF AGREEMENT.
The term of this REGULATORY AGREEMENT shall commence on the issuance of a
certificate of occupancy for the UNITS and shall continue in perpetuity.
2. CONSTRUCTION OF THE AFFORDABLE UNITS
A. The OWNER shall construct the UNITS on the PROPERTY.
B. The appearance and amenities of the affordable UNITS shall be compatible and
comparable with other units in the development and be no less than 620 square
feet in size.
C. The UNITS shall be completed and certificates of occupancy issued
proportionally with the completion and certificates of occupancy of the other units
in the development. In the event that OWNER fails to comply with this condition,
the CITY will not issue certificates of occupancy for the remaining units until the
affordable UNITS are completed and certificates of occupancy issued.
D. All affordable UNITS shall be made affordable to very low-income households
earning fifty percent (50%) or less of the Area Median Income (AMI) for San Diego
County, adjusted for household size, as published periodically by the California
Department of Housing and Community Development.
E. During the term of this agreement, the UNITS shall be utilized for residential use
only in accordance with applicable local ordinances and regulations; any
commercial use or transient habitation (of less than thirty (30) days) is specifically
prohibited.
3. RENTAL OF THE AFFORDABLE UNITS
A. Upon occupancy of the UNITS, the OWNER shall rent the UNITS to eligible very
low-income households (as defined in Section 2.0), and in accordance with the
terms and conditions contained herein.
B. The OWNER shall make the UNITS available for rent to the general public through
an advertisement in local newspaper(s). Applications shall be made available and
accepted for a minimum of fourteen (14) days. The OWNER may employ additional
marketing methods that are in accordance with professional standards of the
industry and fair housing laws.
C. The OWNER is prohibited from renting the UNITS to a family member, relative, or
employee without prior written approval from the CITY.
Affordable Housing Regulatory Agreement (Pacific Station)
Page 2 of 8
D. The OWNER may sell the UNITS with the prior written approval of the CITY Director
of Planning and Building (hereinafter the "DIRECTOR"). At the time of said sale,
the subsequent owner shall execute a new Affordable Housing Regulatory
Agreement with the CITY.
E. The UNITS shall be rented only to very low-income households (as defined in
Section 2.0). Prior to occupancy, the proposed tenant's household income must
be verified using source documentation for all adult members of the household
(e.g., tax return, wage statement, bank statements, public benefit statements).
F. The maximum rental rate to be charged for the UNITS shall be consistent with State
law and be based on thirty percent (30%) of fifty percent (50%) of AMI for very low-
income households (as defined in Section 2.0) based on household size (divided by
twelve months). The DIRECTOR shall approve the maximum rental rate for the
UNITS, including the applicable utility allowance, which the tenant paid utilities are
deducted from the maximum rental rate. The rental rate may be adjusted
periodically in accordance with the current AMI and utility schedule (as defined in
Section 2.0).
G. The Owner shall maintain tenant files containing information on the household
income and the source documentation used by OWNER to determine household
income. Said files shall be maintained for a period of three years from the
termination of any tenancy. Upon written request, OWNER shall allow the CITY
access to review tenants' files and financial records for compliance with this
REGULATORY AGREEMENT.
H. The OWNER shall re-certify the tenant's income status every twelve (12) months. In
the event a tenant no longer qualifies as lower-income, the OWNER shall provide
said tenant with the most expeditious eviction notice process, in accordance with
applicable State law.
4. MANAGEMENT AND MAINTENANCE
A. Any tenant selected to occupy the UNITS shall enter into a written occupancy
agreement or lease with the OWNER. OWNER shall use the standard lease form
published by the California Apartment Association or other form approved by the
DIRECTOR.
B. Leases and the landlord-tenant relationship shall be subject to California law and the
provisions of this REGULATORY AGREEMENT. The OWNER shall establish
reasonable rules of conduct and occupancy that comply with State and local laws
and regulations.
C. The OWNER is responsible to maintain the leased UNITS in a habitable condition and
in good repair at all times. OWNER is responsible for maintenance costs, including
all repairs, corrections and replacements necessary to maintain and preserve the
UNITS in a safe and sanitary condition in accordance with the U.S. Department of
Housing and Urban Development's (HUD) Housing Quality Standards (HQS). Upon
Affordable Housing Regulatory Agreement (Pacific Station)
Page 3 of 8
written request by the CITY, the OWNER shall provide DIRECTOR or his/her
representative with access to inspect the UNITS for compliance with this section.
D. OWNER shall obtain, and at all times during the term of this REGULATORY
AGREEMENT, and maintain policies of general liability and property damage
insurance from an insurance company authorized to be in business in the State of
California. The general liability shall be in an amount of not less then $1,000,000 for
each occurrence. The property damage insurance shall be in an amount sufficient
to replace the UNITS in the event of fire or other major damage. OWNER shall
provide CITY with Certificate of Insurance and an additional insured endorsement
naming the City of Encinitas as Additional Insured. OWNER may self-insure, with
the prior written approval of the City of Encinitas's Risk Manager.
E. OWNER may contract with a management agent for the performance of the services
or duties. However, such an arrangement does not relieve the OWNER of
responsibility for proper performance of these duties.
F. The OWNER shall make a good faith effort to expeditiously re-rent the UNITS
whenever it becomes vacant. In the event the UNITS are vacant for a period of more
than thirty (30) days, the OWNER shall notify the CITY. If available, CITY shall provide
OWNER with a list of eligible households seeking rental housing.
5. REPORTING REQUIREMENTS
OWNER shall submit a report to the DIRECTOR immediately of the current tenants and
after lease-up of vacated UNITS and annually thereafter, on a form prescribed by the
DIRECTOR. The report shall include information on the household(s) occupying the
affordable UNITS during the prior year, household income, and the amount of rent
collected. Whenever requested by the CITY, the OWNER shall provide source
documentation demonstrating the qualified status of the household(s).
6. NON-DISCRIMINATION
OWNER shall not discriminate against any prospective tenant on the basis of race, color,
religion, sex, national origin, familial status, or disability.
7. CERTAIN ACTS PROHIBITED
The OWNER shall not make any sale, encumbrance, assignment or conveyance, or
transfer in any other form, of the PROPERTY or of its entire interest therein that
prohibits the sustained operation of the UNITS in accordance with the terms of this
REGULATORY AGREEMENT and without prior notice to the CITY.
8. VIOLATION OF REGULATORY AGREEMENT BY THE OWNER.
In the event of the violation of any of the provisions of this REGULATORY
AGREEMENT by the OWNER, the CITY may give written notice thereof to the OWNER
by registered or certified mail addressed to the OWNER at the address stated in this
Regulatory Agreement, or to such other address as may have been designated by the
Affordable Housing Regulatory Agreement (Pacific Station)
Page 4 of 8
OWNER, and if such violation is not corrected to the satisfaction of the CITY within thirty
(30) days after the date such notice is mailed (or within such further time as the CITY, in
its reasonable discretion, may permit), the CITY may, without further prior notice,
declare in writing a default under this REGULATORY AGREEMENT effective on the
date of such declaration of default, and upon any such declaration of default the CITY
may apply to any court, State or Federal, for specific performance of this
REGULATORY AGREEMENT; for an injunction against any violation by the OWNER of
this REGULATORY AGREEMENT; for the appointment of a receiver to take over and
operate the UNITS in accordance with the terms of this REGULATORY AGREEMENT;
or for such other relief as may be appropriate, it being agreed by the OWNER that the
injury to the CITY arising from a default under any of the terms of this REGULATORY
AGREEMENT would be irreparable and that it would be extremely difficult to ascertain
the amount of compensation to the CITY which would afford adequate relief, in light of
the purposes of the acquisition and rehabilitation funding.
9. AMENDMENT.
This REGULATORY AGREEMENT shall not be altered or amended except by writing
executed between the parties.
10. SEVERABILITY.
In the event that any provision or covenant of this REGULATORY AGREEMENT is held
by a court of competent jurisdiction to be invalid or unenforceable, then it shall be
severed from the remaining portions of this REGULATORY AGREEMENT, which shall
remain in full force and effect.
11. BINDING ON SUCCESSORS.
This REGULATORY AGREEMENT shall bind, and the benefits thereof shall inure to,
the respective parties hereto, their legal representatives, executors, administrators,
successors in the office or interest, and assigns; provided, however, that the OWNER
may not assign this REGULATORY AGREEMENT or any of its obligations hereunder,
voluntarily or by operation of law, without the prior approval of the CITY, excluding an
assignment to an affiliate. As used herein, "affiliate" means any entity in which OWNER
holds an ownership interest, or any person or entity that holds an ownership interest in
the PROPERTY.
12. GENDER.
The use of the plural in this REGULATORY AGREEMENT shall include the singular and
the singular shall include the plural; and the use of one gender shall be deemed to
include all genders.
13. ELECTION OF REMEDIES: EVENT OF DEFAULT.
The remedies of the CITY hereunder or under any other instrument providing for or
evidencing the financial assistance provided herein are cumulative, and the exercise of
Affordable Housing Regulatory Agreement (Pacific Station)
Page 5 of 8
one or more of such remedies shall not be deemed an election of remedies and shall
not preclude the exercise by the CITY of anyone or more of its other remedies.
14. WAIVER.
No waiver by the CITY of any breach of or default under this REGULATORY
AGREEMENT shall be deemed to be a waiver of any other or subsequent breach or
default hereunder.
15. GOVERNING LAW.
This REGULATORY AGREEMENT shall be construed in accordance with and
governed by the laws of the State of California.
16. NOTICES.
Written notices and other written communications by and between the parties hereto
shall be addressed as follows unless and until a party hereto has in writing,
communicated a different address to the other party hereto.
CITY
City of Encinitas
505 S. Vulcan Ave.
Encinitas, CA 92024
Attn: Housing Coordinator
OWNER
Pacific Station LLC
8910 University Center Lane, Ste. 265
San Diego, CA 92122
Attn: John DeWald
IN WITNESS WHEREOF, OWNER has executed this REGULATORY AGREEMENT as of the
day and year first above written.
OWNER
PACIFIC STATION PROPERTY LLC,
a Delaware limited liability company
By:
.j 11,,-.
DATE: Mfw/" / 2008
Pacific Station Holdings LLC,
a Delaware limited liability company,
its sole Member
By:
By:
Jo
Affordable Housing Regulatory Agreement (Pacific Station)
Page 6 of 8
CITY
City of Encinitas
By:
7/~
DATE: __,I /2008
9 and Building Director
APprove~o F'fm: _
By: W~
Glenn Sabine, City Attorney
City of Encinitas
Affordable Housing Regulatory Agreement (Pacific Station)
Page 7 of 8
ATTACHMENT A
LEGAL DESCRIPTION
A PORTION OF PARCEL 9 OF PARCEL MAP NO. 12092, RECORDED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 6, 1982, AND LOTS 4 AND 5 IN
BLOCK 60, ENCINITAS, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 148, FILED IN THEOFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 12, 1883, AS MORE
PARTICULARLY DESCRIBED IN THE GRANT DEED RECORDED AS DOCUMENT NO.
2005-1007295 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, NOVEMBER 21,2005.
Affordable Housing Regulatory Agreement (Pacific Station)
Page 8 of 8
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
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On June 11, 2008 before me, Christina 1. Cahall/personally appeared W Neil Fox III
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/lief/their authorized capacity(ies), and that by his/lief/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 PERmRY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
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~~~~~~~~~~~~~~
CHRISTINA L. CAHAll
, . Commission # 1609874
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~ " Notary Public - California ~
z : 'San Diego County -
My Comm, Expires Oct2, 2009
My Commission Expires: October 2, 2009
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STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
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On June 11, 2008 before me, Christina L. Cahalllpersonallf appeared John De Wald 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/hef/theif authorized capacity(ies), and that by his/hef/theif
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.
CHRISTINA L. CAHALL
Commission # 1609874
Notary Public . Calltornla i
San Diego County -
My Comm. Expires Oct 2,2009
My Commission Expires: October 2, 2009
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