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2020-76526 DOC# 2020-0076526 NO FEE FOR RECORDING IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII PURSUANT TO GOV. CODE SECTION Feb 14, 2020 09:14 AM 27383 OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER Recording Requested By: FEES: $0.00 (SB2 Atkins: $0.00) City of Encinitas PAGES: 18 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.P.N. 260-430-20, -76 and -78 AFFORDABLE HOUSING AGREEMENT (Density Bonus) This Affordable Housing Agreement (hereinafter the "HOUSING AGREEMENT") is made and entered into and is effective as of this 6' day of N'oxcmbcr- , 2019 by and between the City of Encinitas, a municipal corporation (hereinafter the "CITY"), and Buffalo of Birmingham Investors, a Delaware limited liability company and Ricardo Cervera Lomeli (hereinafter the "OWNER"). RECITALS A. Whereas, the CITY has adopted a Density Bonus Ordinance, Encinitas Municipal Code Section 30.16.020(C), to conform with State Density Bonus Law (Government Code Sections 65915 — 65918) (together "DENSITY BONUS LAW"). DENSITY BONUS LAW allows a density bonus, concessions, and other regulatory incentives when a developer proposes to provide affordable housing meeting the standards of DENSITY BONUS LAW; B. Whereas, the OWNER is the owner of real property (hereinafter the "PROPERTY"). described in EXHIBIT.A, attached hereto and made a part hereof; . C. Whereas, the CITY approved Tentative Map 18-074 TMDB/DR/MIN/CDP/EIA by Planning Commission Resolution (Resolution No. PC 2019-06) on March 14, 2019. As part of the Tentative Map application, the OWNER has sought and agreed to construct one unit (11 percent of the total units shown on the Tentative Map) to be affordable to VERY LOW-INCOME HOUSEHOLDS. The affordable unit(s) is hereinafter the "UNIT"; 1 D. Whereas, in accordance with DENSITY BONUS LAW, OWNER has applied for, and the CITY has granted, the following regulatory incentives in exchange for the OWNER's provision of the affordable UNIT(s): (1) A density bonus of three additional market-rate units; (2) waivers or modifications of development standards as follows: lot size, lot width, lot depth and interior side yard setbacks; E. Whereas, the OWNER has designated Lot Number 5 of TM 18-074 TMDB/DR/MIN/CDP/EIA (hereinafter the "AFFORDABLE UNIT PROPERTY") as the site of the required affordable UNIT, and the OWNER has agreed to construct the UNIT on the AFFORDABLE UNIT PROPERTY; F. Whereas, in order to meet the requirements of DENSITY BONUS LAW regarding the use of the affordable UNIT, the OWNER must sell or rent the UNIT to VERY LOW INCOME HOUSEHOLDS at affordable sales cost or affordable rental price as described below in this HOUSING AGREEMENT and must be bound by this HOUSING AGREEMENT. In consideration of the regulatory incentives described in Recital D, and to comply with DENSITY BONUS LAW, the OWNER has consented to be regulated and restricted as provided herein; G. Whereas, the TENANT HOUSEHOLD is an eligible household that rents the AFFORDABLE UNIT PROPERTY (hereinafter" TENANT HOUSEHOLD"); and H. Whereas, the HOMEBUYER HOUSEHOLD is an eligible household that purchases the AFFORDABLE UNIT PROPERTY (hereinafter"HOMEBUYER HOUSEHOLD"). NOW, THEREFORE, the parties hereto agree as follows: 1. TERM OF AGREEMENT. The term of this HOUSING AGREEMENT shall commence on the issuance of a certificate of occupancy for the UNIT and shall continue for a period of 55 years in accordance with Encinitas Municipal Code 30.16.020(C)(9). All references to the Municipal Code in this HOUSING AGREEMENT refer to the Municipal Code in effect on the date of this HOUSING AGREEMENT. 2. DEVELOPMENT OF THE AFFORDABLE UNIT A. OWNER shall construct the affordable UNIT on the AFFORDABLE UNIT PROPERTY. B. In accordance with Encinitas Municipal Code 30.16.020(C)(10)(b), the exterior appearance and overall quality of construction of the UNIT and the appearance and landscaping of the AFFORDABLE UNIT PROPERTY shall be comparable to that of market-rate units within TM 18-074 TMDB/DR/MIN/CDP/EIA. Interior finishes and amenities may differ from those provided in the market-rate units, but neither the workmanship nor the products may be of substandard or inferior quality as determined by the CITY. 2 C. To satisfy Encinitas Municipal Code 30.16.020(C)(10)(b), 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 exterior appearance and overall quality of construction of the UNIT and the AFFORDABLE UNIT PROPERTY is comparable to that of market-rate units within TM 18-074 TMDB/DR/MIN/CDP/EIA and that interior finishes and amenities are not of substandard or inferior quality, 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 building permit. D. Per Encinitas Municipal Code 30.16.020(C)(10)(a), the UNIT shall be issued a building permit prior to the fourth market-rate unit building permit issuance. Certification of occupancy shall be issued for the UNIT prior to the fourth market-rate unit certification of occupancy approval. 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. E. Per Encinitas Municipal Code 30.16.020(C)(10)(c), the UNIT shall contain the number of bedrooms at least equal to the minimum number of bedrooms of the market-rate units. F. The UNIT shall be provided with an adequate usable yard area comparable to new units in the community, including units within the TM 18-074 TMDB/DR/MIN/CDP/EIA. 3. GENERAL CONDITIONS A. OWNER shall only rent or sell the AFFORDABLE UNIT PROPERTY to a VERY LOW-INCOME HOUSEHOLD. A "VERY LOW-INCOME HOUSEHOLD" is a household with household income that does not exceed the very low income limits applicable to San Diego County as published annually by the Department of Housing and Community Development under Title 25 of the California Code of Regulations, Section 6932 (or successor provision), adjusted for actual household size. B. OWNER shall advertise the availability of the AFFORDABLE UNIT PROPERTY 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 AFFORDABLE UNIT PROPERTY to provide contact information to interested households. 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 provide CITY with notice of not less than 60 days prior to advertising the availability of the AFFORDABLE UNIT PROPERTY of their intent to rent or sell the AFFORDABLE UNIT PROPERTY. D. OWNER shall comply with the Fair Housing Act and California Fair Employment and Housing Act and not discriminate against any prospective tenant or homebuyer on 3 the basis of race, color, religion, sex, national origin, familial status, disability, or other individuals protected under State and Federal fair housing laws. E. OWNER is prohibited from renting or selling the AFFORDABLE UNIT PROPERTY to a family member, relative, employee, or any pre-determined household. A 'pre- determined household' is any household with a pre-existing relationship with the OWNER, such as a friend, associate, or any other household that has an existing relationship with the OWNER, and whose occupancy of the UNIT would decrease its availability to the general public as intended by DENSITY BONUS LAW. F. OWNER may sell the AFFORDABLE UNIT PROPERTY with the prior written approval of the DIRECTOR to a non-qualifying household, if the UNIT will be continuously rented to a qualifying VERY LOW-INCOME HOUSEHOLD at an affordable rental price as calculated in Section 5.13 below. At the time of said sale, the subsequent owner shall execute a new Affordable Housing 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) if the UNIT has not yet been constructed. G. During the term of this agreement, the AFFORDABLE UNIT PROPERTY and 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. H. 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, unless a reasonable accommodation must be made under federal or state fair housing laws. I. The OWNER has received the regulatory incentives described in Recital D from the CITY under the DENSITY BONUS LAW. The incentives are a form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where a developer has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a developer has so agreed by contract. The OWNER hereby agrees to limit rents and sales prices as provided in this Agreement in consideration of the OWNER's receipt of the incentives described in Recital D and further agrees that any limitations on rents imposed on the UNIT are in conformance with the Costa-Hawkins Act. 4. OPTION TO SELL A. QUALIFICATION OF ELIGIBLE HOMEBUYER HOUSEHOLD i. Except as provided in Section 3.17, the AFFORDABLE UNIT PROPERTY shall only be sold to a qualifying VERY LOW-INCOME HOUSEHOLD. ii. The OWNER shall verify the income of all adult members of any proposed HOMEBUYER HOUSEHOLD. For the purposes of determining the 4 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 includes, but not limited to, tax returns, paystubs, wage statements, W2s, bank statements, social security documents, and employment verification. ii. Prior to opening escrow to sell the AFFORDABLE UNIT PROPERTY, OWNER shall provide CITY with HOMEBUYER HOUSEHOLD'S recent income qualifying source documentation, including, but not limited to, tax returns, W2's, paystubs, social security statements, bank statements, etc. 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 real property. B. CALCULATION OF AFFORDABLE HOUSING COST i. The maximum affordable sales price for the AFFORDABLE UNIT PROPERTY shall be calculated in accordance with California Health and Safety Code Section §50052.5 and Title 25 of the California Code of Regulations, Section 6920 (or successor provision), and, in accordance with these provisions, shall result in housing cost that does not exceed for VERY LOW-INCOME households: 30 percent of 50 percent of AREA MEDIAN INCOME, adjusted for assumed household size. AREA MEDIAN INCOME is the median income for to San Diego County as published annually by the Department of Housing and Community Development under Title 25 of the California Code of Regulations, Section 6932 (or successor provision), adjusted for actual household size. 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, principal and interest, property taxes and assessments, property insurance, a reasonable allowance for property maintenance and repairs, 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. 5 ii. Prior to opening escrow, the sale price of the AFFORDABLE UNIT PROPERTY shall be approved by the DIRECTOR. C. ADDITIONAL REQUIREMENTS i. At the time of initial sale, HOMEBUYER HOUSEHOLD shall execute a new Affordable Housing Agreement with the CITY in accordance with Encinitas Municipal Code 30.16.020(C)(9). 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 documentation verifying the occupancy status of the HOMEBUYER HOUSEHOLD. D. NOTICE TO CITY. HOMEBUYER HOUSEHOLD agrees that it will give the CITY notice of any prospective transfer, sale, or conveyance of the AFFORDABLE UNIT PROPERTY not less than 45 days before the proposed sale, transfer, or conveyance by personal delivery of a notice at the address set forth for the CITY in paragraph 16 of this HOUSING AGREEMENT. Time is of the essence. E. LEASE OF PROPERTY PROHIBITED. During the term of this HOUSING AGREEMENT, HOMEBUYER HOUSEHOLD shall not rent or sublet the AFFORDABLE UNIT PROPERTY, or any part thereof, to any person and/or entity. Provided however, the CITY may grant temporary waivers of this requirement in the event of hardship affecting HOMEBUYER HOUSEHOLD, such as illness in the family, military deployment or re- assignment, need to relocate to obtain employment, and the like. F. TRANSFER, CONVEYANCE OF PROPERTY RESTRICTED. The sale, transfer and/or conveyance of the AFFORDABLE UNIT PROPERTY is restricted as follows: i. The AFFORDABLE UNIT PROPERTY may only be sold, transferred or conveyed to a qualified VERY LOW-INCOME HOUSEHOLD. ii. The UNIT must be used only as the principal residence of the subsequent purchaser during the time of ownership. HOMEBUYER HOUSEHOLD shall make a good faith effort to obtain a qualified purchaser residing in the City of Encinitas, prior to considering other qualified purchasers. Such effort shall include, but not limited to, local public advertising, listing in local real estate publications, and CITY suggested marketing. The CITY shall determine if a "good faith" effort has been performed. The CITY' shall not unreasonably withhold its approval. 6 iii. The sale price to the subsequent purchaser must be at a price that is "affordable to the subsequent purchaser(s)". "Affordable to the subsequent purchaser(s)" is determined through the calculation described in Section 4.13 above. iv. In the event that HOMEBUYER HOUSEHOLD is unable to find, despite good faith efforts to do so, a qualified purchaser to purchase the AFFORDABLE UNIT PROPERTY, HOMEBUYER HOUSEHOLD may sell the AFFORDABLE UNIT PROPERTY to a person other than a qualified purchaser by first offering to sell the AFFORDABLE UNIT PROPERTY to the CITY for a purchase price equal to that determined through the calculation described in Section 4.13 above. The CITY shall accept or reject the offer to sell the AFFORDABLE UNIT PROPERTY to the CITY within thirty (30) days of the date of receipt of the offer to sell. In the event that the CITY declines to purchase the AFFORDABLE UNIT PROPERTY, HOMEBUYER HOUSEHOLD may proceed to market and sell the AFFORDABLE UNIT PROPERTY to a non-qualified buyer as described in section 3.17 above if the UNIT will be continuously rented to a qualifying VERY LOW-INCOME HOUSEHOLD at an affordable rental price as calculated in Section 5.13 below. At the time of said sale, the subsequent owner shall execute a new Affordable Housing Agreement with the CITY. Upon a showing of hardship by the HOMEBUYER HOUSEHOLD to the CITY in writing, the CITY may waive any one or combination of the following: the resale restrictions, the HOMEBUYER HOUSEHOLD's obligation to sell to the CITY. V. Notwithstanding the foregoing, the following limited circumstances are acknowledged by the CITY to be permitted transfers: a) the transfer results from the death of a spouse, and the transfer is to the surviving spouse who is also a member of the HOMEBUYER HOUSEHOLD. b) a transfer to a spouse when the spouse becomes, by such a transfer, a co-owner of the AFFORDABLE UNIT PROPERTY; c) a transfer of the AFFORDABLE UNIT PROPERTY resulting from a decree of dissolution of the marriage or legal separation or from a property settlement agreement incidental to such a decree and by which a spouse who is already an co-owner as part of the HOMEBUYER HOUSEHOLD becomes the sole owner of the AFFORDABLE UNIT PROPERTY; and/or d) a transfer by the HOMEBUYER HOUSEHOLD to an inter vivos trust in which the HOMEBUYER HOUSEHOLD is the sole current beneficiary. vi. A transfer of the PROPERTY in accordance with the terms hereof must be accompanied by a recordable assignment and assumption of this HOUSING AGREEMENT executed by the transferee. 7 5. OPTION TO RENT A. QUALIFICATION OF ELIGIBLE TENANT HOUSEHOLD i. The UNIT shall only be rented to a qualifying VERY LOW-INCOME HOUSEHOLD ii. The OWNER shall verify the income of all adult members of any proposed TENANT HOUSEHOLD. For the purposes of determining the TENANT HOUSEHOLD's 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 includes, but is not limited to tax returns, paystubs, wage statements, W2s, bank statements, social security documents, and employment verification. iii. OWNER shall provide CITY with TENANT HOUSEHOLD'S recent income qualifying source documentation, including, but not limited to, tax returns, W2's, paystubs, social security statements, bank statements, etc. 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 for the AFFORDABLE UNIT PROPERTY shall be calculated in accordance with California Health and Safety Code Section §50053 and Title 25 of the California Code of Regulations, Section 6918 (or successor provision), and, in accordance with these provisions, shall result in housing cost that does not exceed for VERY LOW-INCOME households: 30 percent to 50 percent of AREA MEDIAN INCOME, adjusted for assumed household size. ii. No additional fees or charges shall be assessed to the TENANT HOUSEHOLD in excess of the affordable rent. iii. 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. iv. The DIRECTOR shall approve the maximum rental rate for the AFFORDABLE UNIT PROPERTY, 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 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 HOUSING AGREEMENT. 8 I a. OWNER shall re-certify the TENANT HOUSEHOLD's income eligibility every twelve months. If, upon recertification of TENANT HOUSEHOLD's income, the OWNER determines that TENANT HOUSEHOLD's income exceeds the income for a VERY LOW-INCOME HOUSEHOLD, but the TENANT HOUSEHOLD's income does not exceed AREA MEDIAN INCOME, adjusted for household size, then the RENT may be increased to 30 percent of the TENANT HOUSEHOLD's actual income, on the later of the expiration of the TENANT HOUSEHOLD's lease or upon 90 days written notice tt of ce to the TENANT HOUSEHOLD. In the event that the TENANT HOUSEHOLD's income exceeds AREA MEDIAN INCOME, adjusted for household size, then the TENANT HOUSEHOLD shall be given written notice that the TENANT HOUSEHOLD must vacate the UNIT on the later of the expiration of the TENANT HOUSEHOLD's lease or upon 90 days written notice to the TENANT HOUSEHOLD. 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 that shall incorporate the provisions contained in Section 5.C.i.a above. 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. Leases and the landlord-tenant relationship shall be subject to California law and the provisions of this HOUSING 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 and the AFFORDABLE UNIT PROPERTY 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 and the AFFORDABLE UNIT PROPERTY for compliance with this section. Failure by the OWNER to maintain the UNIT or the AFFORDABLE UNIT PROPERTY shall constitute a violation under j this HOUSING AGREEMENT. I b. OWNER shall obtain, and at all times during the term of this HOUSING 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 9 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 AFFORDABLE UNIT PROPERTY. 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 thirty (30) days, the OWNER shall notify the CITY. If available, CITY shall provide OWNER with a list of eligible households seeking rental housing. CITY can extend the affordable housing restriction period, if the UNIT is not continuously rented (i.e., vacancies of more than 30 days). D. ANNUAL MONITORING 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 AFFORDABLE UNIT PROPERTY, 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 purchase money first Deed of Trust associated with mortgage financing), assignment or conveyance, or transfer in any other form, of the AFFORDABLE UNIT PROPERTY or of its entire interest therein other than in accordance with the terms of this HOUSING AGREEMENT. 8. VIOLATION OF REGULATORY AGREEMENT BY THE OWNER In the event of the violation of any of the provisions of this HOUSING 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 Section 16 below, 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 HOUSING 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 HOUSING AGREEMENT; for an injunction against any violation by the OWNER of this HOUSING AGREEMENT; for the 10 it appointment of a receiver to take over and operate the UNIT in accordance with the terms of this HOUSING 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 HOUSING 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 DENSITY BONUS LAW. 9. AMENDMENT. This HOUSING 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 HOUSING 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 HOUSING AGREEMENT, which shall remain in full force and effect. 11. BINDING ON SUCCESSORS. This HOUSING AGREEMENT shall inure to the benefit of and be binding upon the successors and assigns of the OWNER of the AFFORDABLE UNIT PROPERTY and the heirs, personal representatives, grantees, tenants, successors-in-interest or assigns of the owners. This HOUSING 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 of the AFFORDABLE UNIT PROPERTY may not assign this HOUSING 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 of the AFFORDABLE UNIT PROPERTY holds an ownership interest, or any person or entity that holds an ownership interest in the AFFORDABLE UNIT PROPERTY. 12. GENDER. The use of the plural in this HOUSING 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. 11 14. WAIVER. No waiver by the CITY of any breach of or default under this HOUSING AGREEMENT shall be deemed to be a waiver of any other or subsequent breach or default hereunder. 15. GOVERNING LAW. This HOUSING AGREEMENT shall be construed in accordance with and governed by the laws of the State of California. Venue shall be San Diego County. 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 OWNER City of Encinitas Buffalo of Birmingham Investors, Inc. 505 S. Vulcan Ave. 700 Second Street Encinitas, CA 92024 Encinitas, CA 92024 Attn: Housing Management Analyst 17. RELEASE OF PROPERTY FROM AGREEMENT. A. RELEASE OF AGREEMENT FROM THE PROPERTY. At OWNER's request, eight market rate lots within TM 18-074 TMDB/DR/MIN/CDP/EIA shall be released from the burdens of this AGREEMENT when a certificate of occupancy or final building permit inspection is approved for the UNIT. At OWNER's request, all portions of the PROPERTY, except the AFFORDABLE UNIT PROPERTY, shall be released from the burdens of this AGREEMENT when a certificate of occupancy or final building permit inspection is approved for the UNIT. B. RELEASE OF AGREEMENT FROM THE AFFORDABLE UNIT PROPERTY. The AFFORDABLE UNIT PROPERTY shall be released from the burdens of this AGREEMENT when it is: (i) sold to a HOMEBUYER HOUSEHOLD in compliance with this AGREEMENT; and (ii) HOMEBUYER HOUSEHOLD executes a. new Affordable Housing Agreement with the CITY in accordance with Encinitas Municipal Code 30.16.020(C)(9), and the new Affordable Housing Agreement is recorded against the AFFORDABLE UNIT PROPERTY. 12 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 1832 Westview Drive (APN 260-430-76) Parcel 2 of Parcel Map No. 19125, in the City of Encinitas, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, December 12, 2002. 1231 Birmingham Drive (APN 260-430-20 and -78) PARCEL B AS SHOWN ON CERTIFICATE OF COMPLIANCE NO: 02-061 AS EVIDENCED BY DOCUMENT RECORDED SEPTEMBER 2, 2003 AS INSTRUMENT NO: 2003-1069344 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEING A PORTION OF THE EAST HALF OF THE SOUTHEAST Q UARTER OF THE SOUTHWEST QUARTER OF SECTION 23,TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED APRIL 19, 18881 MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID SOUTHEAST QUARTER SOUTH 010 04' 01" WEST(SOUTH 00 21' 21" WEST RECORD PER RECORD OF SURVEY MAP NO. 1705 RECORDED JANUARY 19, 1948 AS F/P 5346 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY) 654.11 FEET; THENCE NORTH 89° 4Y 18" WEST, 318.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 890 42' 18" WEST, 327.72 FEET TO THE EASTERLY LINE OF THE WESTERLY 19.00 FEET OF SAID HALF PER FINAL ORDER OF CONDEMNATION RECORDED APRIL 25, 1977 AS F/P 77-152884 IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY ALONG SAID EASTERLY LINE NORTH 010 13' 19" EAST, 584.45 FEET TO THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTHEAST;THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 890 04' 24", AN ARC DISTANCE OF 31.09 FEETTO THE SOUTHERLY LINE OF THE NORTHERLY 50.00 FEET OF SAID EAST HALF, THENCE WESTERLY ALONG SAID SOUTHERLY LINE NORTH 89° 42' 18" WEST, 38.68 FEET TO THE WESTERLY LINE OF SAID EAST HALF; THENCE NORTHERLY ALONG SAID WESTERLY LINE NORTH 010 13, 19" EAST, 50.01 FEET TO THE NORTHWEST CORNER OF SAID HALF; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID HALF SOUTH 890 42' 18" EAST, 344.96 FEET; THENCE SOUTH 01°04' 01" WEST, 654.11 FEET TO THE TRUE POINT OF BEGINNING. I 14 IN WITNESS WHEREOF, OWNER has executed this HOUSING AGREEMENT as of the day and year first above written. OWNER AN By:__..... Date: Rrad rmini, g.er- Buffalo of Birmingham LnYR.sts�M. (Notarization of signature mus Ricardo Cervera Lome Notar' CITY City of Encinitas, a municipal corporation By: J Date:/l/t;//--7 C�-1Ac-+inn y Manager 1 (Notarization of signature must be attached) APPROVED AS TO FORM: Xgi Le-s6 Devaney, City A ey Date I 13 IN WITNESS WHEREOF, OWNER has executed this HOUSING AGREEMENT as of the day and year first above written. OWNER By: " Date: 112A712,6 Brad Termini, Manager Buffalo of Birmingham Investors, Inc. (Notarization of signature must be attached) By: Date. Ricardo Cervera Lomeli (Notarization of signature must be attached) GIP(- B Date: L./r. APPROVED TE Devaney,Leslie 13 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 1 County of �an On NoyewLew- 6,,, 2012 before me, �blrvuZk; L- L&-,4j15, Jjq' !W`\ PLbl,s, Date Here Insert Name and Title of the Officer personally appeared -To yy-% �o k c)2�V Name(s)of Signer(s) 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 � BRANDI L.LEWIS laws of the State of California that the foregoing Notary Public-California paragraph is true and correct. R ` San Diego County . Commission#2242688 My Comm.Expires May 14,2022 WITNESS my hand and official seal. Signature Place Notary Seal and/or Stamp Above Signature of Notary P OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: AACyndabLe, -ROlASrriC,• -404 Document Date: Alb%re-m i�� G/ Zo/1 Number of Pages: 1-14 Signer(s) Other Than Named Above: SMd7cernini-, '1C cit."o Cerrucw-A. L&Mai1 , LPSI�e L1m��n Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer-Title(s): ❑ Corporate Officer-Title(s): ❑ Partner- ❑ Limited ❑ General ❑ Partner- ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact ❑ Trustee I�� ` ❑ Guardian of Conservator ❑ Trustee ❑ Guardian of Conservator ,,Other: I I(4iP.V1M �Ayi-I�tit vut�NJ� [I Other: Signer is Representing: ('a�va I�Ae.n,et�s,¢.v� Signer is Representing: ©2017 National Notary Association ACKNOWLEDGMENT 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 Califo ia-J County of =L' On 6.� �.7-Q before me, Kerry David RoSS, Notary Public (insert name and title of the officer) personally appeared , ,,,,/err, 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. Kerry David Rosa Co MM WITNESS my hand and official seal. wo rnCamiM�s� Signature (Seal) o � ACKNOWLEDGMENT 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 Califomi • County of / Kerry David Ross, Notary Public Ono e52062C before me, (insert name and title of the officer) personally appeared �JtZz ; issue l� �r/d�3 �l 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. WITNESS my hand and official Kerry David Ross COMM E 2284817 NOTARY PUBLIC—CA IFOW4 son Diego COUNTY MY COMA EXPIRES 10l2dM Signat (Seal) 1