2023-191837Recording Requested By:
First American Title Company
Hom6builder Services Division
NO FEE FOR RECORDING
PURSUANT TO GOV. CODE SECTION
27383
Recording Requested By:
City of Encinitas
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. 260-131-50-00
DOC# 2023-0191837
Jul 20, 2023 01:00 PM
OFFICIAL RECORDS
JORDAN Z. MARKS,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
AFFORDABLE HOUSING AGREEMENT (HOMEBUYER),
(Density Bonus and Inclusionary)
PAGES: 16
This Affordable Housing Agreement (hereinafter the "AGREEMENT") is made and
entered into and, is effective as of this 1 day of 1411 _, 2023 by and
between the City of Encinitas, a municipal corporation (hdeinafter the "CITY"), and
Jonathan C. Lain and Lisa N. Lain, husband and wife as joint tenants (hereinafter the
"OWNER") in connection with that certain residential unit commonly known as 1152
East Cove Place and more particularly described on Exhibit A attached hereto
("RESTRICTED UNIT").
RECITALS
A. OWNER is purchasing the RESTRICTED UNIT concurrently with the
execution and delivery of this AGREEMENT. Such purchase will be financed pursuant
to FHA, Freddie Mac, or Fannie Mae requirements. The RESTRICTED UNIT is
governed by, among other items, 'Encinitas Municipal Code Section 30.16.020(C)
("DENSITY BONUS LAW") and an Inclusionary Housing Ordinance, Encinitas Municipal
Code Section 30.41 ("INCLUSIONARY ORDINANCE"), which require this
AGREEMENT to be recorded against the RESTRICTED UNIT.
B. This AGREEMENT shall be recorded as an encumbrance against and
shall restrict the sale and occupancy of the RESTRICTED UNIT and imposes
covenants, conditions and restrictions on the RESTRICTED UNIT to satisfy the terms
requirements of the DENSITY BONUS LAW and the INCLUSIONARY ORDINANCE.
NOW, THEREFORE, the parties hereto agree as follows:
City of Encinitas - Affordable Housing Agreement
Recording Requested By:
First American Title Company
Homebuilder Services Division
NO FEE FOR RECORDING
PURSUANT TO GOV. CODE SECTION
27383
Recording Requested By:
City of Encinitas
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. 260-131-50-00
(0785 i 33
AFFORDABLE HOUSING AGREEMENT (HOMEBUYER)
(Density Bonus and Inclusionary)
This Affordable Housing Agreement (hereinafter the "AGREEMENT") is made and
entered into and is effective as of this IRiln day of 2023 by and
between the City of Encinitas, a municipal corporation (hereinafter the "CITY"), and
Jonathan C. Lain and Lisa N. Lain, husband and wife as joint tenants (hereinafter the
"OWNER") in connection with that certain residential unit commonly known as 1152
East Cove Place and more particularly described on Exhibit A attached hereto
("RESTRICTED UNIT").
RECITALS
A. OWNER is purchasing the RESTRICTED UNIT concurrently with the
execution and delivery of this AGREEMENT. Such purchase will be financed pursuant
to FHA, Freddie Mac, or Fannie Mae requirements. The RESTRICTED UNIT is
governed by, among other items, Encinitas Municipal Code Section 30.16.020(C)
("DENSITY BONUS LAW") and an Inclusionary Housing Ordinance, Encinitas Municipal
Code Section 30.41 ("INCLUSIONARY ORDINANCE"), which require this
AGREEMENT to be recorded against the RESTRICTED UNIT.
B. This AGREEMENT shall be recorded as an encumbrance against and
shall restrict the sale and occupancy of the RESTRICTED UNIT and imposes
covenants, conditions and restrictions on the RESTRICTED UNIT to satisfy the terms
requirements of the DENSITY BONUS LAW and the INCLUSIONARY ORDINANCE.
NOW, THEREFORE, the parties hereto agree as follows:
City of Encinitas - Affordable Housing Agreement
1. TERM OF AGREEMENT.
The term ("TERM") of this AGREEMENT shall commence upon recordation of
this AGREEMENT and shall continue in perpetuity in accordance with the
requirements of the DENSITY BONUS LAW and the INCLUSIONARY
ORDINANCE. This AGREEMENT shall inure to the benefit of, and be binding
upon, the parties hereto, and their respective heirs, successors and assigns.
OWNER acknowledges and agrees that all of the obligations under this
AGREEMENT shall constitute covenants, which shall run with the land and shall
be binding upon the RESTRICTED UNIT and upon every person having any
interest therein at any time and from time to time during the term of this
AGREEMENT. Further, OWNER agrees that, if a court of competent jurisdiction
determines that the obligations set forth in this AGREEMENT do not qualify as
covenants running with the land, the same shall be enforced as equitable
servitudes.
2. DEFINITIONS. The following terms shall have the following meanings:
"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.
"DEED OF TRUST" means the deed of trust to be executed by the OWNER
concurrently herewith, in favor of and in a form acceptable to the CITY, which
shall secure this AGREEMENT, as set forth in more detail in Section 3, below.
"ELIGIBLE HOUSEHOLD" means persons or families earning not more than fifty
percent (50%) of the then current Area Median Income, provided that such
persons meet the additional requirements set forth in this AGREEMENT.
"INSTITUTIONAL MORTGAGEE" means each of the following: (a) the
mortgagee of a first priority mortgage that is a bank, savings and loan
association, insurance or mortgage company or other entity or institution
chartered under federal and/or state law; or (b) an insurer or governmental
guarantor of a first priority mortgage; (c) the mortgagee of a first priority mortgage
that is a Federal or State agency.
"MAXIMUM SALES PRICE" shall be determined by the CITY, which shall
calculate such amount in accordance with the California Health and Safety Code
Section §50052.5 and Title 25 of the California Code of Regulations, Section
6920 (or successor provision), for very low income households. The MAXIMUM
SALES PRICE shall be the amount that results in a housing cost that does not
exceed 30 percent -of 50 percent of AREA MEDIAN INCOME, adjusted for
assumed household size. The OWNER'S financing and the financing to be
City of Encinitas - Affordable Housing Agreement 2
obtained by any prospective homebuyer shall be a fixed rate loan fully amortized
over thirty years. The following parameters shall be applied when determining
the MAXIMUM SALES PRICE:
I. The calculation shall assume a five percent down payment.
11. 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.
III. The calculation shall include all reasonable housing costs, including, but
not limited to, principal and interest, property taxes and assessments,
property insurance, property maintenance and repairs, homeowners'
association fees, additional district fees (if applicable), and an allowance
for utilities based on the then -current Utility Allowance Schedule,
published by the Encinitas Housing Authority.
"PROMISSORY NOTE" means the promissory note to be executed by OWNER
concurrently herewith, in a form acceptable to the CITY.
"RESALE" means any or the following: (i) all or any part of the RESTRICTED
UNIT or any interest in the RESTRICTED UNIT is sold, conveyed or transferred;
(ii) if the OWNER is not a natural person and a beneficial interest in the OWNER
is sold, conveyed or transferred; (iii) all or any part of the RESTRICTED UNIT is
refinanced, except as otherwise allowed by law; (iv) the OWNER (and all of the
OWNERS, if there is more than one OWNER) does not occupy the
RESTRICTED UNIT as his, her, or their primary residence; (v) the leasing of all
or any part of the RESTRICTED UNIT; (vi) any material breach of this
AGREEMENT or the DEED OF TRUST; or (vii) the filing of bankruptcy by the
OWNER. Notwithstanding the foregoing, a refinancing of the RESTRICTED UNIT
shall not be considered a RESALE, provided either:
(A) The new loan is a fixed interest loan and the principal balance of
the OWNER's loan after the refinancing, does not exceed the principal balance of
the OWNER's loan before the refinancing, plus reasonable closing costs; or
(B) All of the following conditions are met, and provided that the CITY
provides advance written consent to the refinancing to the OWNER: (A) OWNER
receives cash from such refinancing, which does not exceed ten percent (10%)
of the principal balance of the OWNER's first loan before the refinancing; (B)
such cash is borrowed for the purpose of and is used for improvements to the
RESTRICTED UNIT, which improvements are preapproved by the CITY prior to
the OWNER obtaining the refinancing; and (C) the total amount of all the loans
secured by the RESTRICTED UNIT do not exceed 100% of the value of the
RESTRICTED UNIT.
3. OWNER COVENANTS. OWNER represents and warrants to CITY as follows (if
any representation or warranty set forth herein is false or is otherwise breached,
City of Encinitas - Affordable Housing Agreement 3
the same shall be a material default hereunder and the CITY shall have all
remedies available at law or in equity against OWNER, including without
limitation foreclosure of the DEED OF TRUST):
A. Annual Gross Income. OWNER's annual gross income, including the income
of any co -purchasers, co -occupants or co -tenants, at the time of the
execution of this AGREEMENT does not exceed fifty percent (50%) of the
AREA MEDIAN INCOME.
B. Principal Place of Residence. For so long as OWNER owns the
RESTRICTED UNIT during the TERM, OWNER will reside in the
RESTRICTED UNIT as OWNER's principal place of residence. The OWNER
shall be considered to be occupying the RESTRICTED UNIT as a principal
place of residence if the OWNER is living in the RESTRICTED UNIT for at
least ten (10) months out of each calendar year. OWNER shall not lease the
RESTRICTED UNIT at any time during the TERM. Except for the prohibition
on leasing the RESTRICTED UNIT, the restrictions set forth in this Section
3.B., shall not apply to the RESTRICTED UNIT or to an OWNER during any
period of time when the RESTRICTED UNIT is owned by an INSTITUTIONAL
MORTGAGEE or its assignee pursuant to a foreclosure or pursuant to a
deed -in -lieu of foreclosure.
C. LIQUID ASSETS. At the time of the execution of this AGREEMENT,
OWNER, in the aggregate with any co -purchasers or co -occupants, does not
hold, directly or indirectly, "liquid assets", as defined below, whose aggregate
value exceeds one hundred percent (100%) of the Area Median Income. As
used herein, the term "liquid assets" refers to cash and assets which are
readily convertible to cash within a reasonable period, including but not
limited to savings and checking accounts, certificates of deposit of any term,
marketable securities, money market and similar accounts, mutual fund
shares, and insurance policy cash values. The term "liquid assets" shall not
include retirement funds which are not readily accessible or which cannot be
accessed by the OWNER without the OWNER incurring a penalty.
D. No Relationship With Developer. OWNER does not, and none of the co -
purchasers or co -tenants of OWNER, have an interest in or are, related to (by
blood or marriage): (i) Warmington E14 Associates, LLC, a California limited
liability company, and/or any affiliate, parent company or subsidiary of
Warmington E14 Associates, LLC, a California limited liability company; (ii)
any person employed by Warmington E14 Associates, LLC, a California
limited liability company, or any individuals who are members, principals,
officers, executives, directors, partners, employees, agents or shareholders of
Warmington E14 Associates, LLC, a California limited liability company; or (iii)
or any entity having an ownership in Warmington E14 Associates, LLC, a
California limited liability company.
City of Encinitas - Affordable Housing Agreement 4
E. Maintenance. OWNER shall maintain the RESTRICTED 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 RESTRICTED UNIT in a safe and
sanitary condition in accordance with the U.S. Department of Housing and
Urban Development's (HUD) Housing Quality Standards and State Law.
Upon written request by the CITY, the OWNER shall provide the CITY's
Development Services Director or representative with access to inspect the
RESTRICTED UNIT for compliance with this section. Failure by the OWNER
to maintain the RESTRICTED UNIT shall constitute a default under this
AGREEMENT.
4. PROMISSORY NOTE AND DEED OF TRUST.
Prior to or concurrently with the closing of the sale of the RESTRICTED UNIT to
the OWNER, OWNER shall execute the PROMISSORY NOTE in favor of the
CITY and deliver the same to the CITY. The original principal amount of the
PROMISSORY NOTE shall be the amount equal to the difference between the
unrestricted fair market value of the RESTRICTED UNIT at the time of its
acquisition by the OWNER (as determined by the CITY) minus the actual
purchase price paid by the OWNER for the RESTRICTED UNIT. Which amounts
(the original principal amount and the actual purchase price) shall be approved
by the CITY in writing, in the CITY's sole discretion, prior to the OWNER's
execution and delivery of the PROMISSORY NOTE. The PROMISSORY NOTE
and this AGREEMENT shall be secured by the DEED OF TRUST executed by
OWNER in favor of the CITY. Concurrently with the execution and delivery of
this AGREEMENT, OWNER shall execute the DEED OF TRUST in favor of the
CITY and deliver the same to escrow. The DEED OF TRUST shall be recorded
against the RESTRICTED UNIT with the closing of the sale of the RESTRICTED
UNIT to OWNER. The DEED OF TRUST shall be recorded subordinate to a first
lender deed of trust and this AGREEMENT and shall automatically be
subordinate to any first lender deed of trust recorded in the future against the
RESTRICTED UNIT and shall also be subordinate to this AGREEMENT. Upon a
foreclosure or deed in lieu of foreclosure of such first lender deed of trust, such
first lender shall receive title free and clear of the provisions of this
AGREEMENT.
5. TRANSFER, CONVEYANCE RESTRICTED.
RESALES of the RESTRICTED UNIT are restricted as follows:
A. Any RESALE of the RESTRICTED UNIT may only be to a qualified ELIGIBLE
HOUSEHOLD. The ELIGIBLE HOUSEHOLD'S financing and the financing to
be obtained by any prospective ELIGIBLE HOUSEHOLD shall be a fixed rate
loan fully amortized over thirty years.
City of Encinitas - Affordable Housing Agreement 5
B. OWNER 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.
C. No RESALE of the RESTRICTED UNIT occur prior to the CITY verifying that
the prospective purchaser is an ELIGIBLE HOUSEHOLD, and the sales price
of the RESTRICTED UNIT does not exceed the MAXIMUM SALES PRICE.
OWNER may not receive any amount of money and/or other consideration
upon the transfer or sale of the RESTRICTED UNIT in excess of the
MAXIMUM SALES PRICE.
D. In the event that OWNER is unable to find, despite good faith efforts to do so,
an ELIGIBLE HOUSEHOLD to purchase the RESTRICTED UNIT, OWNER
may offer to sell the RESTRICTED UNIT to the CITY for a purchase price
equal to the MAXIMUM SALES PRICE.
E. Upon a showing of hardship by the OWNER to the CITY in writing, the CITY
may waive any requirement of OWNER set forth in this AGREEMENT.
F. Notwithstanding the foregoing, the following limited circumstances are
acknowledged by the CITY to be permitted transfers:
a transfer that results from the death of a spouse, and the transfer
is to the surviving spouse who is also a member of the OWNER's
household.
a transfer to a spouse when the spouse becomes, by such a
transfer, a co -Owner of the RESTRICTED UNIT;
III. a transfer of the RESTRICTED UNIT resulting from a decree of
dissolution of the marriage or legal separation or from a
RESTRICTED UNIT settlement agreement incidental to such a
decree and by which a spouse who is already an OWNER
becomes the sole Owner of the RESTRICTED UNIT; and/or
IV. a transfer by the OWNER to an inter vivos trust in which the
OWNER is the sole current beneficiary;
V. a transfer of the RESTRICTED UNIT in accordance with the terms
hereof must be accompanied by a recordable assignment and
assumption of this AGREEMENT executed by the transferee.
G. QUALIFICATION OF ELIGIBLE HOUSEHOLD
City of Encinitas - Affordable Housing Agreement 6
Except as otherwise provided herein, any RESALE of the
RESTRICTED UNIT shall only be to an ELIGIBLE HOUSEHOLD.
II. The OWNER shall verify the income of all adult members of any
proposed ELIGIBLE HOUSEHOLD. For the purposes of
determining the household gross annual income, all adult (18 years
of age and over) members of the 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.
111. Prior to opening escrow to sell the RESTRICTED UNIT, OWNER
shall provide the CITY with the prospective ELIGIBLE
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. Development Services
Director shall confirm or deny eligibility based on the documentation
provided.
IV. Any subsequent ELIGIBLE HOUSEHOLD must certify that they will
occupy the RESTRICTED UNIT as owner -occupant and principal
residence; and that the household does not own or have an interest
in any real RESTRICTED UNIT.
H. NOTICE TO CITY.
OWNER agrees that it will give the CITY notice of any prospective
transfer, sale, or conveyance of the RESTRICTED UNIT not less than
forty-five (45) days before the proposed RESALE by personal delivery of a
notice at the address set forth for the CITY in paragraph 16 of this
AGREEMENT. Time is of the essence.
6. FAILURE TO OCCUPY IS A NON -CURABLE BREACH.
A. Failure to Occupy/Renting Out the Property is a Violation of Law.
OWNER hereby acknowledges that the DENSITY BONUS LAW, the
INCLUSIONARY ORDINANCE, this AGREEMENT, the DEED OF TRUST and
the PROMISSORY NOTE require OWNER to occupy the RESTRICTED UNIT as
the OWNER's principal residence. Renting out the RESTRICTED UNIT and/or
OWNER's failure to occupy the RESTRICTED UNIT as OWNER's principal
residence is a violation of the DENSITY BONUS LAW and the INCLUSIONARY
ORDINANCE (in addition to being a violation of the PROMISSORY NOTE,
DEED OF TRUST and this AGREEMENT). The CITY is obligated to enforce
certain provisions of the DENSITY BONUS LAW and the INCLUSIONARY
City of Encinitas - Affordable Housing Agreement 7
ORDINANCE, failure to do so would jeopardize the CITY's ability to help other
families to obtain affordable housing.
B. Failure to Occupy/Renting Out the Property Materially Impairs the CITY's
Security. OWNER hereby acknowledges and agrees that renting out the
RESTRICTED UNIT and/or OWNER's failure to occupy the RESTRICTED UNIT
as OWNER's principal residence, materially impairs the CITY's security and the
CITY's ability to help other families to obtain affordable housing. OWNER further
acknowledges that if the RESTRICTED UNIT is rented out and/or OWNER fails
to occupy the RESTRICTED UNIT as OWNER's principal residence, then during
any such period the RESTRICTED UNIT will not qualify as "affordable housing"
and the OWNER will be in breach of OWNER's obligations under the DENSITY
BONUS LAW and the INCLUSIONARY ORDINANCE, the PROMISSORY
NOTE, DEED OF TRUST and this AGREEMENT and therefore the CITY's
security will be materially impaired.
C. Failure to Occupy/Renting Out the Property is a Non -Curable Breach.
OWNER hereby acknowledges and agrees that renting out the RESTRICTED
UNIT and/or OWNER's failure to occupy the RESTRICTED UNIT as OWNER's
principal residence, will be a non -curable breach and the CITY shall have the
right to accelerate the amounts due and foreclose on the RESTRICTED UNIT as
provided herein and in the DEED OF TRUST. Notwithstanding anything to
the contrary set in this AGREEMENT or in the DEED OF TRUST, OWNER
agrees that in the event OWNER rents out the Property and/or fails to
occupy the RESTRICTED UNIT as OWNER's principal residence, OWNER
shall not have the right to cure the breach and reinstate the PROMISSORY
NOTE, DEED OF TRUST or this AGREEMENT or the obligations secured
hereby.
D. OWNER's Waiver. OWNER hereby knowingly waives and relinquishes
any and all legal and/or contractual rights OWNER may have to cure or
otherwise reinstate the PROMISSORY NOTE, DEED OF TRUST or this
AGREEMENT or the obligations secured hereby, in the event that the
RESTRICTED UNIT is rented out and/or OWNER fails to occupy the
RESTRICTED UNIT as OWNER's principal residence.
E. Representation of Comprehension. OWNER acknowledges and agrees
that the CITY has advised OWNER (and each of them if there is more than one
OWNER) to retain an attorney to represent OWNER with respect to the purchase
of the RESTRICTED UNIT and execution and recordation of the PROMISSORY
NOTE, DEED OF TRUST and this AGREEMENT. By executing this
AGREEMENT, OWNER (and each of them if there is more than one OWNER)
represents that: (i) OWNER fully understands and accepts the terms of the
PROMISSORY NOTE, DEED OF TRUST and this AGREEMENT. By executing
this AGREEMENT; (ii) OWNER has relied upon the legal advice of OWNER's
attorneys or that OWNER has freely and independently chosen not seek the
City of Encinitas - Affordable Housing Agreement 8
advice of an attorney; (iii) that neither the CITY nor its attorneys represents
OWNER; (iv) that OWNER has had a full and ample opportunity to consult with
any other professionals of OWNER's choice in connection with the rights and
liabilities created by the PROMISSORY NOTE, DEED OF TRUST and this
AGREEMENT; (v) that OWNER does not have any questions with regard to the
legal import of any term, word, phrase, or portion of the PROMISSORY NOTE,
DEED OF TRUST or this AGREEMENT, or any of the PROMISSORY NOTE,
DEED OF TRUST or this AGREEMENT in their entireties; and (vi) OWNER
accepts the terms of the PROMISSORY NOTE, DEED OF TRUST and this
AGREEMENT as written.
7. NON-DISCRIMINATION.
OWNER shall not discriminate against any prospective tenant or homebuyer on the
basis of race, color, religion, sex, gender (including gender identity and sexual
orientation), national origin, familial status, disability or other individuals protected
under state and federal fair housing law.
8. VIOLATION OF HOUSING AGREEMENT BY THE OWNER.
In the event of the violation of any of the provisions of this 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 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
AGREEMENT; for an injunction against any violation by the OWNER of this
AGREEMENT; for the appointment of a receiver to take over and operate the
RESTRICTED UNIT in accordance with the terms of this 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
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. In the event of any
litigation for the enforcement or interpretation of this AGREEMENT, whether an
action -at -law, arbitration or any manner of non -judicial dispute resolution agreed
to by both parties by reason of the breach of any condition or covenant,
representation or warranty in this AGREEMENT or otherwise arising out of this
AGREEMENT, the prevailing party in such action, arbitration or proceeding shall
be entitled to recover from the other reasonable attorneys' fees to be fixed by the
court which shall render a judgment, as well as the costs of suit.
9. AMENDMENT.
City of Encinitas - Affordable Housing Agreement 9
This 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 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 AGREEMENT, which shall remain in
full force and effect.
11. GENDER.
The use of the plural in this 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 AGREEMENT shall
be deemed to be a waiver of any other or subsequent breach or default
hereunder.
15. GOVERNING LAW.
This 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 OWNER
City of Encinitas Jonathan C. Lain and Lisa N. Lain
505 S. Vulcan Ave. 1152 East Cove Place
Encinitas, CA 92024 Encinitas, CA 92024
Attn: Management Analyst
City of Encinitas - Affordable Housing Agreement 10
IN WITNESS WHEREOF, OWNER has executed this AGREEMENT as of the day and
year first above written.
OWNER
Jonathan C. Lain and Lisa N. Lain, husband and wife as joint tenants
By: Date: !/, i23
Jo e��
.Lain J ongT rAv, C. Lc
-
(Notarization of signature must be attached)
-71 By: Date: �cl
i a N. Lain
(Notarization of signature must be attached)
CITY
City of Encinitas, a municipal corporation
c
Pamela Antil, City Manager
(Notarization of signature must be attached)
APPROVED AS TO FORM:
Tarqu'in Pr, ziosi; City Attorney
Date
Date:I
City of Encinitas - Affordable Housing Agreement 11
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 California
County of San Diego
0n ���, j , 2023, before me, C rCk�
notary public; personally appeared
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 seal.
Signature \�
(Seal)
*my
DEANA GAY
Notary Public . California
San Diego County
Commission # 2396124
Comm. Expires Mar 8, 2026
City of Encinitas - Affordable Housing Agreement 12
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 California
County of San Diego
On ,�T�(�� (�� 2023, before me, () A - t��q
notary public, personally appeared `1 �I n 6ctl'i ccn 0-
who prove to me on the basis of satisfactory evidence to be the person(s) whose
name(s) 'sure subscribed to the within instrument and acknowledged to me that
5h she/they executed the same i /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.
D. A. RUGGIERO
�= Notary Public - California
WITNESS my hand and official seal. __ _a �' Orange County
Commission ' 2306493
`' as My Comm. Expires Oct 12, 2023
Signature�(Seal)
City of Encinitas - Affordable Housing Agreement 13
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 California
County of San Diego
On J—('k 1 L/ 1,9 , 2023, before, me, JD - 4 - (� t,c 9�I I -e r o ,
notary public, personally appeared LI S; q I\j L ci n
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) s' re subscribed to the within instrument and acknowledged to me that
he/sfi6they executed the same in histheir authorized capacity(ies), and that by
his/ er/ eir 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.
%my
D. A. RUGGIERO
WITNESS my hand and official seal. Notary angeCoual;fornia
z Oran e County " 2306493
Commission Comm. Expires Oct 12, 2023
Signature t �^ (Seal)
City of Encinitas - Affordable Housing Agreement 14
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Encinitas, County of San Diego, State of California,
described as follows:
LOT 8 OF TRACT 16488
LOT 8 ("PROPERTY") OF THE CITY OF ENCINITAS TM 18-001, ACCORDING TO
MAP THEREOF NO. 16488, FILED ON DECEMBER 20, 2021 IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA
("MAP")
RESERVING THEREFROM, FOR THE BENEFIT OF GRANTOR, ITS SUCCESSORS
IN INTEREST, ASSIGNS AND OTHERS, WITH THE RIGHT TO GRANT AND
TRANSFER SAME EASEMENTS FOR ACCESS, INGRESS, EGRESS, UTILITIES,
ENCROACHMENT, PRIVATE YARD, SUPPORT, MAINTENANCE, DRAINAGE,
REPAIR AND FOR OTHER PURPOSES, ALL AS MAY BE SHOWN ON THE MAP, OR
AS DESCRIBED AND/OR DEPICTED IN THE DECLARATION HEREINAFTER
REFERRED TO. IN THE EVENT GRANTOR HAS CONVEYED A LOT BENEFITTED
BY SAID EASEMENT(S) AND THEREBY GRANTED SAID EASEMENT(S)
PRIOR TO THE CONVEYANCE OF THE HEREIN PROPERTY, THEN THIS PARCEL
L SHALL BE SUBJECT TO SAID EASEMENT(S).
FURTHER RESERVING THEREFROM ALL EASEMENTS, RIGHTS, DUTIES AND
OBLIGATIONS AS SET FORTH IN THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS EAST COVE COTTAGES MAINTENANCE
CORPORATION RECORDED JANUARY 31, 2022, AS DOCUMENT NO. 2022-
0045353, IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, TOGETHER
WITH ANY AMENDMENTS OR SUPPLEMENTS THERETO (COLLECTIVELY, THE
"DECLARATION") FOR THE BENEFIT OF "DECLARANT" AS THEREIN DEFINED.
RESERVING THEREFROM UNTO THE GRANTOR, THE RIGHT TO ENTER THE
PROPERTY FOR TWELVE YEARS FOLLOWING RECORDATION DATE OF THIS
GRANT DEED TO COMPLETE AND REPAIR ANY IMPROVEMENT OR
LANDSCAPING LOCATED THEREON AND/OR TO CORRECT ANY DEFICIENCIES
IN THE RESIDENTIAL CONSTRUCTION, DESIGN, SPECIFICATIONS, SURVEYING,
AND PLANNING ASSOCIATED WITH THE PROPERTY, AS DETERMINED
NECESSARY BY GRANTOR, IN ITS SOLE DISCRETION, AND/OR TO COMPLY
WITH THE REQUIREMENTS FOR THE RECORDATION OF THE MAP, THE
GRADING OF SAID PROPERTY, AND/OR TO COMPLY WITH THE REQUIREMENTS
OF APPLICABLE WARRANTIES, LAWS, AND GOVERNMENTAL AGENCIES. THE
City of Encinitas - Affordable Housing Agreement 15
PROPERTY IS ALSO SUBJECT TO A RIGHT OF ENTRY BY GRANTOR OR
GRANTOR'S AGENT UNTIL THE EXPIRATION OF ALL APPLICABLE STATUTES
OF LIMITATIONS FOR THE FILING OF A COMPLAINT OR SUIT OR OTHER LEGAL
REMEDIES AGAINST GRANTOR IN ANY WAY RELATING TO OR ARISING OUT OF
THE DEVELOPMENT, CONSTRUCTION, SALE AND/OR TRANSFER OF THE
PROPERTY BY GRANTOR. SUCH ENTRY BY GRANTOR SHALL BE PRECEDED
BY REASONABLE NOTICE TO GRANTEE BEFORE SUCH ENTRY. IF THIS
RESERVATION OF RIGHT OF ENTRY IS NOT COMPLIED WITH BY GRANTEE,
GRANTOR MAY ENFORCE THIS RIGHT OF ENTRY IN A COURT OF LAW.
GRANTEE SHALL BE RESPONSIBLE FOR ALL DAMAGES ARISING OUT OF SAID
BREACH (E.G., REFUSING TO ALLOW ENTRY) INCLUDING ATTORNEYS' FEES,
COSTS AND EXPENSES.
A PRIVATE YARD EASEMENT OVER THE ADJACENT LOT(S) AS DESCRIBED AND
DEPICTED IN THE DECLARATION HEREINAFTER REFERRED TO. SAID
EASEMENT IS APPURTENANT TO PARCEL 1 ABOVE.
I` �L'ZrI:41"
NONEXCLUSIVE EASEMENTS FOR ACCESS, INGRESS AND EGRESS, USE,
DRAINAGE, ENCROACHMENT, SUPPORT AND FOR OTHER PURPOSES, AS SET
FORTH IN THE DECLARATION OR ON THE MAP. THESE EASEMENTS ARE
APPURTENANT TO PARCEL 1 ABOVE.
APN: 260-131-50-00
City of Encinitas - Affordable Housing Agreement 16