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2017-348241 DOC# 2017-0348241 FREE RECORDING REQUESTED PURSUANT TO GOV. CODE SECTION Aug 01, 2017 04:14 PM 11 27383 OFFICIAL RECORDS Ernest J. OUNT b E O Recording Requested By: SAN DIEGO EO: $ 00CRDER City of Encinitas PAGES ii Development Services Department 505 S. Vulcan Avenue Encinitas, CA 92024 And When Recorded Mail To: City of Encinitas City Clerk's Office 505 S. Vulcan Avenue Encinitas, CA 92024 A(� A.P.N. 254-331-23 & -24 AFFORDABLE HOUSING REGULATORY AGREEMENT (Density Bonus) This Affordable Housing Regulatory Agreement (hereinafter the "REGULATORY AGREEMENT") is made and entered into and is effective as of this )S day of L 201-7 by and between the City of Encinitas (hereinafter the 'CITY"), and Citym- dk Hymettus, LLC (hereinafter the "OWNER"). RECITALS A. Whereas, the OWNER is the owner of real property (hereinafter the "PROPERTY") described in EXHIBIT A, attached hereto and made a part hereof; B. Whereas, the CITY approved a Density Bonus for Tentative Map 13-187 by Planning Commission Resolution No. PC 2016-23 on April 21, 2016, in accordance with California Government Code §65915; C. Whereas, the OWNER has designated Lot Nine (9) of TM 13-187 as the required affordable unit and the OWNER has agreed to construct a new residential unit (hereinafter "UNIT") on the PROPERTY; D. Whereas, in order to restrict the use of the affordable UNIT, the OWNER is bound by this REGULATORY AGREEMENT and has consented to be regulated and restricted as provided herein; E. Whereas, the TENANT HOUSEHOLD is the eligible household to rent the UNIT (hereinafter " TENANT HOUSEHOLD"); and City of Encinitas t Affordable Housing Regulatory Agreement-Updated February 2016 F. Whereas, the HOMEBUYER HOUSEHOLD is the eligible household to purchase the UNIT (hereinafter " HOMEBUYER HOUSEHOLD") 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 UNIT and shall continue for a period of thirty (30) years. 2. DEVELOPMENT OF THE AFFORDABLE UNIT A. 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 13-187. The interior appearances, finishes, and amenities of the UNIT shall be comparable to new units in the community. 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 for-sale units in the CITY or surrounding communities to the satisfaction of the Development Services Director (hereinafter, the "DIRECTOR"). Such documentation shall be provided from the OWNER to the CITY prior to the issuance of a certification of occupancy. D. If lots in subdivision are marketed under a custom lot sale program, then the UNIT shall be constructed as one of the first five units in the subdivision. If the subdivision is constructed by a single builder in one or more phases, the UNIT shall be constructed and certification of occupancy issued prior to occupancy of the fifth market rate unit. E. The UNIT shall be a minimum of 2,764 square feet of living space, with a minimum of 4 bedrooms and 3 bathrooms and a 2-car garage. F. The UNIT shall be provided with an adequate usable yard area comparable to new units in the community. 3. GENERAL CONDITIONS A. OWNER shall only rent or sell the UNIT to an income eligible household at or below fifty percent (50%) of San Diego Area Median Income, as defined and periodically updated by California Health and Safety Code §50105 and adjusted for household size. B. OWNER shall advertise the availability of the UNIT for a minimum of two consecutive weeks in a local newspaper. The OWNER may employ additional marketing methods that are in accordance with professional standards. The CITY may also advertise the UNIT to provide contact information to interested households. City of Encinitas 2 Affordable Housing Regulatory Agreement-Updated February 2016 OWNER shall make applications available for a minimum of two weeks during the advertisement period. OWNER shall maintain a record of all interested households and applications. OWNER must provide such documentation to the CITY. C. OWNER shall comply with the Fair Housing Act and 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 laws. D. OWNER is prohibited from renting or selling the UNIT to a family member, relative, employee, or any pre-determined household. E. OWNER may sell the property with the prior written approval of the DIRECTOR. The sale of the UNIT may be to a non-qualifying household, if the UNIT will be continuously rented to a qualifying very low income household, at or below fifty percent (50%) of San Diego Area Median Income, as defined and periodically updated by California Health and Safety Code §50105 and adjusted for household size. 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). F. 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. G. Occupancy of the UNIT shall be appropriate to the number of bedrooms in the UNIT. As a general rule and policy, an appropriately sized household is no less than one person per bedroom and no more than two persons per bedroom, which is reasonable under the Fair Housing Act and intent of program assistance. 4. OPTION TO SELL (Except as provided in Section 3.E) A. QUALIFICATION OF ELIGIBLE HOMEBUYER HOUSEHOLD i. UNIT shall only be sold to an income eligible HOMEBUYER HOUSEHOLD at or below fifty percent (50%) of San Diego Area Median Income, as defined and periodically adjusted by the California Health and Safety Code §50105, and adjusted for household size. ii. The OWNER shall verify the income of all adult members of any proposed HOMEBUYER HOUSEHOLD. For the purposes of determining the HOMEBUYER HOUSEHOLD gross annual income, all adult (18 years of age and over) members of household shall provide recent (within a year) source documentation to verify income. Source documentation may include, but is not limited to, any of the following: tax returns, paystubs, wage statements, W2s, bank statements, social security documents, and employment verification. City of Encinitas 3 Affordable Housing Regulatory Agreement-Updated February 2016 ii. Prior to opening escrow to sell the UNIT, OWNER shall provide CITY with HOMEBUYER HOUSEHOLD'S income qualifying source documentation, which may include, but is not limited to, any of the following: tax returns, paystubs, wage statements, W2s, bank statements, social security documents, and employment verification. The CITY may require additional documentation to verify eligibility. DIRECTOR shall confirm or deny eligibility based on the documentation provided. iii. HOMEBUYER HOUSEHOLD must certify that they will occupy the UNIT as owner-occupant and principal residence; and that the household does not own or have an interest in any other real property. B. CALCULATION OF AFFORDABLE HOUSING COST i. The maximum affordable sales price for the UNIT shall be calculated in accordance with California Health and Safety Code §50052.5. The following conditions shall also be applied when determining the maximum affordable sales price: a. The calculation shall include a five percent down payment. b. The calculation shall include an interest rate which is based on the current Freddie Mac Monthly Average Commitment Rate on 30-Year Fixed-Rate Mortgages. c. The calculation shall include reasonable housing costs, which includes, but not limited to, property taxes, property insurance, Homeowners' Association fees, additional district fees (if applicable), and an allowance for utilities based on the current Utility Allowance Schedule, published by the Encinitas Housing Authority. d. Actual financing to be obtained by any prospective homebuyer shall be a fixed rate loan fully amortized over thirty years. ii. Prior to opening escrow, the sale price of the UNIT shall be approved by the DIRECTOR. C. ADDITIONAL REQUIREMENTS i. At the time of initial sale, HOMEBUYER HOUSEHOLD shall execute a new Regulatory Agreement with the CITY in accordance with California Government Code §65915(c)(2), unless it is in conflict with the requirements of another public funding source or law. ii. HOMEBUYER HOUSEHOLD shall submit a report to the DIRECTOR at initial occupancy and annually thereafter, on a form prescribed by the DIRECTOR. The report shall certify that the HOMEBUYER HOUSEHOLD occupies the UNIT as their primary residence. The HOMEBUYER HOUSEHOLD shall provide source City of Encimt&s 4 Affordable Housing Regulatory Agreement-Updated February 2016 documentation verifying the occupancy status of the HOMEBUYER HOUSEHOLD. 5. OPTION TO RENT A. QUALIFICATION OF ELIGIBLE TENANT HOUSEHOLD i. The UNIT shall only be rented to an income eligible TENANT HOUSEHOLD at or below fifty percent (50%) of San Diego Area Median Income, as defined and periodically adjusted by the California Health and Safety Code §50105, and adjusted for household size. ii. The OWNER shall verify the income of all adult members of any proposed TENANT HOUSEHOLD. For the purposes of determining the TENANT HOUSEHOLD annual gross income, all adult (18 years of age and over) members of household shall provide recent (within one-year) source documentation to verify income. Source documentation may include, but is not limited to, any of the following: tax returns, paystubs, wage statements, W2s, bank statements, social security documents, and employment verification. iii. OWNER shall provide CITY with TENANT HOUSEHOLD'S income qualifying source documentation, which may include, but is not limited to, any of the following: tax returns, paystubs, wage statements, W2s, bank statements, social security documents, and employment verification. The CITY may require additional documentation to verify eligibility. DIRECTOR shall confirm or deny eligibility based on the documentation provided. B. CALCULATION OF AFFORDABLE RENTAL PRICE i. The maximum monthly rent of UNIT shall be calculated in accordance with California Health and Safety Code §50053. Rental rate may be adjusted periodically in accordance with California Health and Safety Code §50053. No additional fees or charges shall be assessed to the TENANT HOUSEHOLD in excess of the affordable rent. ii. An allowance for tenant-paid utilities shall be deducted from the maximum affordable rent. The OWNER shall only use the most current Utility Allowance Schedule, published by the Encinitas Housing Authority. iii. The DIRECTOR shall approve the maximum rental rate for the UNIT, including the applicable utility allowance. C. MANAGEMENT AND MAINTENANCE i. 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 five years from the termination of any tenancy. Upon written request, OWNER shall allow the CITY Ciro of Encinitas 5 Affordable Housing Regulatory Agreement-Updated February 2016 access to review tenants' files and financial records for compliance with this REGULATORY AGREEMENT. a. OWNER shall re-certify the TENANT HOUSEHOLD's income eligibility every twelve months. In the event that the TENANT HOUSEHOLD no longer qualifies, the OWNER shall provide notice in accordance with applicable State law. b. TENANT HOUSEHOLD 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. ii. Prior to the occupancy of the UNIT, the OWNER shall provide a copy of the occupancy agreement or lease to the CITY for review and approval. iii. 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. a. 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) and State Law. Upon written request by the CITY, the OWNER shall provide DIRECTOR or representative with access to inspect the UNIT for compliance with this section. Failure by the OWNER to maintain the UNIT shall constitute a violation under this REGULATORY AGREEMENT. b. 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. c. 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. OWNER shall notify the CITY in writing within 30 days of any change of property management of the UNIT. iv. 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 30 days, the OWNER shall notify the CITY. If available, CITY shall provide OWNER City of Encinitas 6 Affordable Housing Regulatory Agreement-Updated February 2016 with a list of eligible households seeking rental housing. Upon a showing that OWNER failed to make a good faith effort to expeditiously re-rent the UNIT, CITY can extend the affordable housing restriction period, if the UNIT is not continuously rented (i.e., vacancies of more than 30 days), for a period equal to the total amount of time that the UNIT remained vacant in excess of 30 days between vacancies. D. ANNUAL MONITORING i. OWNER shall submit a report to the DIRECTOR at initial occupancy and annually thereafter, on a form prescribed by the DIRECTOR. The report shall include information on the household occupying the UNIT, 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. 6. 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. 7. CERTAIN ACTS PROHIBITED 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. 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 OWNER, and if such violation is not corrected to the satisfaction of the CITY within 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. 9. AMENDMENT. This REGULATORY AGREEMENT shall not be altered or amended except by writing executed between the parties. City of Encinitas 7 Affordable Housing Regulatory Agreement-Updated February 2016 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 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. 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. Ciry of Encinitas 8 A&rdable Housing Regulatory Agreement-Updated Februan 2016 CITY OWNER City of Encinitas Citymark Hymettus, LLC 505 S. Vulcan Ave. Richard Gustafson, President of CityMark Development Encinitas, CA 92024 3818 Park Boulevard Attn: Housing Management Analyst Ph: (619) 231-1161 IN WITNESS WHEREOF, OWNER has executed this REGULATORY AGREEMENT as of the day and year first above written. OWNER Citymark Hymettus, LLC By. Date: 7 S / 7 Richard Gustafson, President of CityMark Development (Notarization of signature must be attached) CITY City of Encinitas By: Date: 7 Z s/ Catherine S. Blakespear, Mayor (Notarization not required) APPROVED AS TO FORM: h //1 Glenn a ine, City Attorney Dat Cin of Encinitas 9 Affordable Housing Regulatory Agreement-Updated Febmary 2016 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT 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 San Diego On July 6, 2017 before me, Kris Johnson, Notary Public, personally appeared Richard Gustafson President , who proved to me on the basis of satisfactory evidence to be the person whose names) is are subscribed to the within instrument and acknowledged to me that he she/they executed the some in his her/they authorized capocity(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, the foregoing paragraph is true and correct. KRIS JOHNSON WITNESS my hand and official seal. r� commission #2046512 i •F.- - Notary Public - California Z Shnson, Z � San Diego County Z' My Comm. Expires Nov 20,2017 Not y Public Commission#2046512 My Commission Expires: November 20, 2017 OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Affached Document: CityMark Hymettus—Affordable Housing Regulatory Agreement (Density Bonus) APN#'s: 254-331-23 & 24 CA Rev. 1/01/2015 EXHIBIT A LEGAL DESCRIPTION ALL OF LOTS 1 IN BLOCK 8 AND ALL THOSE PORTIONS OF LOTS 2 AND 18 IN SAID BLOCK 8 OF SOUTH COAST PARK, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 1776, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, JANUARY 11, 1924, DESCRIBED AS FOLLOWS: BEGINNING AT A CONCRETE MONUMENT MARKING THE INTERSECTION OF THE CENTER LINES OF FULVIA STREET AND HYMETTUS AVENUE; THENCE ALONG THE CENTER LINE OF SAID HYMETIUS AVENUE NORTH 15 043'30" WEST, A DISTANCE OF 387.79 FEET; THENCE SOUTH 74 026'30" WEST, A DISTANCE OF 421.32 FEET TO A POINT IN THE CENTER LINE OF SAID FULVIA STREET; THENCE ALONG THE SAID CENTER LINE OF FULVIA STREET THE FOLLOWING COURSES AND DISTANCES: FIRST, SOUTH 33 024'30" EAST, DISTANCE OF 113.35 FEET TO AN ANGEL POINT; SECOND, SOUTH 47 032'30" EAST, A DISTANCE OF 202.31 FEET (RECORD 201.88 FEET) TO THE BEGINNING OF A CURVE; THIRD, ALONG THE ARC OF SAID CURVE WHICH IS CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 170.45 FEET THROUGH A CENTRAL ANGLE OF 4r29'45" A DISTANCE OF 141.30 FEET (RECORD 141.80 FEET) TO THE END THEREOF; FOURTH. NORTH 84 057'45" EAST, A DISTANCE OF 169.95 FEET (RECORD 170.14 FEET) TO THE POINT OF BEGINNING. APN: 254-331-23 & -24 Cul of Encinitas 10 Affordable Housing Regulatory Agreement-Updated February 2016