2009-295950FREE RECORDING REQUESTED
PURSUANT TO GOV. CODE SECTION
27383
Recording Requested By:
City of Encinitas
Planning and Building Department
505 S. Vulcan Avenue
Encinitas, CA 92024
And When Recorded Mail To:
t;
DOG.. 2009-0295950
11111111111111111111111111111111111111111111111111111111111111111111
JUN 02, 2009 3:26 PM
OFFICIAL REC:ORE,S
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. EI ITLER. COUNTY RECORDER
FEES: 0.00
PAGES: 9
111111111111111111111111111111111111111111111111111IIIII IIIII1111IIIII1111111
Attn: Housing Administrator
A.P.N. 259-180-19
City of Encinitas
Planning and Building Department
505 S. Vulcan Avenue
Encinitas, CA 92024
AFFORDABLE HOUSING REGULATORY AGREEMENT
(Inclusionary)
This Affordable Housing Regulatory Agreement (hereinafter the "REGULATORY
AGREEMENT") is made and entered into and is effective as of thisQ,~i day of May, 2009 by
and between the City of Encinitas (hereinafter the "CITY"), and Senojac LLC, a California
Limited Liability Company (hereinafter the "OWNER").
RECITALS
A. Whereas, the OWNER is the owner of real property (hereinafter the
"PROPERTY") described in Attachment A, attached hereto and made a part
hereof;
B. Whereas, the CITY approved Tentative Map 06-005, which included the
provision for an affordable unit as required by Chapter 24.21 of the CITY
Municipal Code. The OWNER must restrict occupancy in the unit to a very low-
income household for a term of fifty-five (55) years;
C. Whereas, the OWNER has designated Lot 14 of TM 06-005 as the required
affordable unit and the OWNER has agreed to construct a new residential unit
(hereinafter "UNIT") on the PROPERTY; and,
D. Whereas, in order to restrict use of the affordable UNIT, 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:
TERM OF AGREEMENT.
The term of this REGULATORY AGREEMENT shall commence on the issuance of a
certificate of occupancy for the UNIT and shall continue for fifty-five (55) years.
2. DEVELOPMENT OF THE AFFORDABLE UNIT
A. The OWNER shall construct a new residential unit on the PROPERTY.
B. The exterior appearance of the affordable UNIT shall be compatible with units in
the surrounding neighborhood, including units within TM 06-005. The interior
appearance finishes, and amenities of the affordable UNIT shall be comparable
to new, affordable homes in the CITY or surrounding communities.
C. Prior to the commencement of construction, the quality of materials, floor
coverings, cabinets, fixtures, appliances, doors, and windows shall be specified
in sufficient detail to ensure that the quality level is comparable to new affordable
homes in the CITY or surrounding communities to the satisfaction of the Planning
and Building Director (hereinafter, the "DIRECTOR").
D. If lots in subdivision are marketed under a custom lot sale program, then the
UNIT shall be constructed as the first unit in the subdivision. If the subdivision is
subjected to design review and/or constructed by a single builder in one or more
phases, the UNIT shall be constructed prior to construction of the ninth market
rate unit.
E. The UNIT shall be made affordable to a very low-income household earning fifty
percent (50%) or less of the Area Median Income (AMI) for San Diego County, and
adjusted for household size, as published periodically by the U.S. Department of
Housing and Urban Development (HUD).
F. The UNIT shall be a minimum of 1,500 square feet of living space with a minimum
of three bedrooms and two baths; plus a two-car garage. Based on a significant
reason, the UNIT size may be reduced through approval of a Design Review
permit.
G. The UNIT shall be provided with adequate usable yard area comparable to new,
affordable units in the community.
H. During the term of this agreement, the UNIT 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 days) is specifically prohibited.
3. RENTAL UNIT ONLY
A. Upon completion of construction of the UNIT, the OWNER shall rent the UNIT to an
eligible, very low-income household (as defined in Section 2.E), and in accordance
with the terms and conditions contained herein.
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B. The OWNER shall make the UNIT 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 days. The OWNER may employ additional
marketing methods that are in accordance with professional standards of the
industry and fair housing laws. The CITY will require documentation of the selection
process and the CITY may additionally advertise the UNIT availability.
C. The OWNER is prohibited from renting the UNIT to a family member, relative,
employee, or pre-determined household.
D. The OWNER may sell the property with the prior written approval of the
DIRECTOR. At the time of said sale, the subsequent owner shall execute a new
Affordable Housing Regulatory Agreement with the CITY. The City shall require
the subsequent owner to post a performance bond or provide other assurances
of performance within the identified construction schedule (as described in
Section 2.D).
4. RENTAL REQUIREMENTS
A. The UNIT shall be rented only to a very low-income household (as defined in
Section 2.E). 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).
B. The maximum monthly rental rate to be charged for the UNIT shall be consistent with
State law and be based on thirty percent (30%) of fifty percent (50%) of AMI (as
defined in Section 2.E) for a five-person household (divided by 12 months). The
DIRECTOR shall approve the maximum rental rate for the UNIT, including the
applicable utility allowance. Rental rate may be adjusted periodically in accordance
with the current AMI schedule (as defined in Section 2.E).
C. 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.
D. The OWNER shall re-certify the tenant's income status every twelve months. In the
event a tenant no longer qualifies as very low-income, the OWNER shall provide said
tenant with the most expeditious eviction notice process, in accordance with applicable
State law.
6. MANAGEMENT AND MAINTENANCE
A. Any tenant selected to occupy the UNIT shall enter into a written occupancy
agreement or lease with the OWNER. OWNER shall use the standard lease form
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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 UNIT 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 UNIT
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 written
request by the CITY, the OWNER shall provide DIRECTOR or representative with
access to inspect the UNIT for compliance with this section.
D. OWNER shall obtain, and at all times during the term of this REGULATORY
AGREEMENT shall maintain policies of general liability and property damage
insurance from an insurance company authorized to be in business in the State of
California. The property damage insurance shall be in an amount sufficient to
replace the UNIT in the event of fire or other major damage. OWNER may self-
insure, with the prior written approval of the DIRECTOR.
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 UNIT whenever
it becomes vacant. In the event the UNIT is 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.
7. REPORTING REQUIREMENTS
OWNER shall submit a report to the DIRECTOR immediately after initial lease-up of the
UNIT and annually thereafter, on a form prescribed by the DIRECTOR. The report shall
include information on the household(s) occupying the affordable UNIT 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).
8. NON-DISCRIMINATION
OWNER shall not discriminate against any prospective tenant or homebuyer on the basis
of race, color, religion, sex, national origin, familial status, disability or other individuals
protected under State and Federal fair housing law.
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9. CERTAIN ACTS PROHIBITED
The OWNER shall not make any sale, encumbrance (except for a first Deed of Trust
associated with mortgage financing), assignment or conveyance, or transfer in any
other form, of the PROPERTY or of its entire interest therein other than in accordance
with the terms of this REGULATORY AGREEMENT.
10. 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
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 UNIT 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 Density Bonus program.
11. AMENDMENT.
This REGULATORY AGREEMENT shall not be altered or amended except by writing
executed between the parties.
12. 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.
13. 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
5
holds an ownership interest, or any person or entity that holds an ownership interest in
the PROPERTY.
14. 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.
15. 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
one or more of such remedies shall not be deemed an election of remedies and shall
not preclude the exercise by the CITY of any one or more of its other remedies.
16. 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.
17. GOVERNING LAW.
This REGULATORY AGREEMENT shall be construed in accordance with and
governed by the laws of the State of California.
18. 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: Planning and Building Director
OWNER
Senojac LLC, a California Limited
Liability Company
225 West Plaza, Suite 101
Solana Beach, CA 92075
Attn: Chris Swortwood, President
IN WITNESS WHEREOF, OWNER has executed this REGULATORY AGREEMENT as of the
day and year first above written.
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OWNER
Senojac LLC, a California Limited Liability Company
BY: DATE: May /a7/ 2009
Chris Swortwood, Member
(Notary Required)
r
By: DATE: May /~7/ 2009
Lawrence olland, Member
(Notary Required)
CITY
City of Encinitas
B Z7
Y• DATE: May / / 2009
Tom Curriden, City Planner
(Notary Not Required)
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CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of Sr}~ t> f
On -*S - 2 7- c:% Cr before me, J C% S t N C Y C "NH ~ 4 N rr~ Y 0Ci f3 ( i
(here insert name and title of the officer)
personally appeared NC%t.i., M'UC'h lNQ C492V SeV(-2(e'LVC-,C4-~,
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.
J HYU
WITNESS my hand and official seal. C~ X1608409
y J NOTARY PUBLIC • CALIFORMIA
SAN DIEGO COUNTY
C:2~ Commission Expires Jul 13, 2012
C."
Signature of Notary Public
(Seal)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
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Individual (s)
❑
Corporate Officer
(Title)
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Partner(s)
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Attorney-in-Fact
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Trustee(s)
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Other
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ATTACHMENT A
LEGAL DESCRIPTION
The South One-Half of the Northeast Quarter of the Southwest Quarter of Section 14,
Township 13 South, Range 4 West, San Bernardino Base and Meridian, in the County of San
Diego, State of California, according to Government Survey thereof, approved April 19, 1881.
EXCEPTING that portion thereof lying easterly of the following described line:
Beginning at a point on the Southerly line of the Northeast Quarter of the Southwest Quarter of
said Section 14, said point being North 89° 34' West 708.82 feet from the Southeast corner of
said Northeast Quarter of the Southwest Quarter, being also the intersection of said Southerly
line with the southerly prolongation of the Westerly line of the land described in the deed to
Clyde R. Beamer, et ux, recorded December 6, 1962, as Document No. 207901, Official
Records; thence along said southerly prolongation and Westerly line, North 0037' East 649.93
feet to the Northerly line of the South One-Half of the Northeast Quarter of the Southwest
Quarter of said Section 14.
ALSO EXCEPTING the southerly 370.24 feet (measured along the Westerly line) of the
westerly 385.40 feet (measured along the Southerly line) of said land.
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