Loading...
HomeMy WebLinkAboutOrdinance 1644 (Mobilehome Rent Stabilization Requirements)CLERK'S CERTIFICATE I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, and Ex -officio Clerk of the Council of said City, do hereby certify that the foregoing Charter Ordinance No. 1644 entitled: "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING ORDINANCE NO. 1584 ENTITLED 1MOBILEHOME RENT STABILIZATON ORDINANCE' TO ADD NOTICE REQUIREMENTS, REVISE §20.04.040 TO INCLUDE VACANCY CONTROL AND FREEZE PROVISIONS, ADD BUYERS RIGHTS AND PROHIBIT PASS-THROUGH CHARGES" is a true and correct copy of an ordinance of said City and was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 1st day of FEBRUARY, 1993, published as required by City Charter in the MARIN INDEPENDENT JOURNAL , a newspaper published in the City of San Rafael and passed and adopted as an ordinance of said City at a REGULAR meeting of the City Council of said City held on the 16th day of FEBRUARY, 1993, by the following vote, to wit: AYES: COUNCILMEMBERS: Breiner, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Cohen WITNESS my hand and the official seal of the City of San Rafael this 18th day of FEBRUARY , 1993. JEAKK-M. LEONCINI, City Clerk ORDINANCE NO. 1644 AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING ORDINANCE NO. 1584 ENTITLED "MOBILEHOME RENT STABILIZA- TION ORDINANCE" TO ADD NOTICE RE- QUIREMENTS, REVISE 520.04.040 TO INCLUDE VACANCY CONTROL AND FREEZE PROVISIONS, ADD BUYERS RIGHTS AND PROHIBIT PASS-THROUGH CHARGES THE COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: 20.01.010. Findings. The City Council of the City of San Rafael hereby finds as follows: A. There is presently within the City of San Rafael and the surrounding areas, a shortage of lots for the placement of mobilehomes. B. Mobilehomes presently constitute an important source of housing for persons of low and moderate income. C. A large number of persons living in mobilehomes are elderly, some of whom live on small fixed incomes. These persons may expend a substantial portion of their income on rent and may not be able to afford other housing within the City of San Rafael. D. There is an extremely low vacancy rate in mobilehome parks within the City, with no lots presently available in some or all of the mobilehome parks within the City. E. Rents for lots within mobilehome parks have, in the few years preceding adoption of this ordinance by the City, increased substantially, in parks within the City and other areas of the State. F. Homeowners residing in mobilehome parks have very limited mobility because it is difficult and costly to move mobilehomes; therefore, such Homeowners are forced to accept and pay substan- tially increased rents. G. There is a potential for damage while moving mobilehomes from one site to another and a considerable amount of cost for landscaping, awning installations, and site preparation after such �M;ftrlcm H. The San Rafael General Plan 2000 Housing Policy H-8 1 r recommends maintaining the City's existing stock of lower cost units of which the Contempo Marin Mobilehome Park is an example. I. Owners and/or Operators of mobilehome parks provide an important housing source for residents of the City of San Rafael. Unduly restrictive rent review ordinances can operate to discourage the establishment of new and the expansion of existing mobilehome parks in the City; to encourage owners to convert their mobilehome parks to other uses; and adversely affect the maintenance and other services offered by mobilehome parks, thereby exacerbating the shortage of mobilehome lots and the quality of life in mobilehome parks. J. It is the purpose of this ordinance to establish a speedy and efficient method of reviewing rent increases in mobilehome parks to protect Homeowners from arbitrary, capricious, or unreasonable rent increases while insuring Owners and/or Operators and investors a fair and reasonable return and encouraging competition in the provision of mobilehome lots. R. Vacancv Control. WHEREAS, the initial Mobilehome Rent Stabilization ordinance, No. 1564, contained vacancy control provisions at its first reading, and WHEREAS, said ordinance was thereafter revised to exempt from coverage space rent or space rent increases upon the transfer of ownership of a mobilehome where the mobilehome remains in the park, sometimes referred to as "Vacancy Decontrol", and WHEREAS, said revisions were made in response to the decision of the United States Court of Appeal for the Ninth Circuit in Hall v. Citv of Santa Barbara, and WHEREAS, the decision of the United States Supreme Court in Yee V. Escondido effectively overruled Hall v. Citv of Santa Barbara, and the Yee opinion found that vacancy control of rents on in-place transfers of mobilehomes does not constitute a physical taking of property without just compensation, and WHEREAS, the Council finds that the City's policy to continue rent control protection for all mobilehome parks in the 2 City, has proven useful in stabilizing rent in mobilehome parks; and WHEREAS, establishment of rent regulations on spaces where ownership of the mobilehome is transferred but the mobilehome remains, sometimes referred to as "vacancy control", is an important part of rent control policy as it protects mobilehome owners from excessive space rent increases and permits sales of mobilehomes without "unconscionable" rent increases to the new owner; and WHEREAS, rent control regulations, including vacancy control can assist in protecting affordable housing in combination with City programs and actions to help provide a variety of housing types within a range of costs affordable to the low and very low income households; and WHEREAS, a significant number of residents have become residents following the effective date of Ordinance No. 1564 on October 16, 1989, and were required to pay a rental rate substan- tially higher than comparable spaces, and WHEREAS, many residents of such spaces are senior citizens on fixed incomes and have been forced to pay unnecessarily high rents and/or have been constrained in their ability to sell their mobilehomes. WHEREAS, this City Council desires to enact a measure that would regulate rent increases upon in-place transfers of mobilehomes. 20.01.020. Chapter 20 of the San Rafael Municipal Code is hereby enacted to read as follows: CHAPTER 20 MOBILEHOME RENT STABILIZATION ORDINANCE 20.02.020. Definitions. A. "Arbitration" is a process much like a trial where the arbitrator listens to both sides and makes a decision (called an 3 award) for the disputing parties. B. "Capital improvements" means those new improvements which directly and primarily benefit and serve the existing mobilehome park Homeowners by materially adding to the value of the mobilehome park, appreciably prolonging its useful life, or adapting it to new uses, and which are required to be amortized over the useful life of the improvements pursuant to the provisions of the Internal Revenue Code and the regulations issued pursuant thereto. "Capital improvements costs" shall mean all costs reasonably and necessarily related to the planning, engineering and construction of capital improvements and shall include debt service costs, if any, incurred as a direct result of the capital improvement. C. "Capital replacement" means the substitution, replacement or reconstruction of a piece of equipment, machinery, streets, sidewalks, utility lines, landscaping, structures or part thereof of a value of five thousand dollars ($5,000.00) or more which materially benefits and adds value to the mobilehome park. Capital replacement costs shall mean all costs reasonably and necessarily related to the planning, engineering and construction of capital replacement and shall include debt service costs, if any, incurred as a direct result of the capital replacement. D. "Debt service costs" means the periodic payment or payments due under any security or financing device which is applicable to the mobilehome park including any fees, commissions, or other charges incurred in obtaining such financing. E. "Representative" means a person appointed in writing by an Owner, an Operator, a Homeowner, or a group of Homeowners and authorized to represent the interest of, negotiate on behalf of, and bind the appointing party. F. "Filing" means actual receipt of the item being filed by the person designated in this chapter to receive the item, or by his or her designee. G. "Maintenance and operation costs" means all expenses, exclusive of costs of debt service, costs of capital improvements, and costs of capital replacement, incurred in the operation and 4 maintenance of the mobilehome park, including but not limited to: real estate taxes, business taxes and fees (including fees payable by landlords under this chapter), insurance, sewer service charges, utilities, janitorial services, professional property management fees, pool maintenance, exterior building and grounds maintenance, supplies, equipment, refuse removal, and security services or systems. H. "Mediation" is a voluntary process by which disputing parties come together with a professionally trained mediator who helps them clarify their differences and design their own agree- ment. I. "Mobilehome" means a structure as defined in Section 789.3 of the Civil Code as follows: "Mobilehome" is a structure designed for human habitation and for being moved on a street or highway under permit pursuant to Section 35790 of the Vehicle Code. Mobilehome includes a manufac- tured home, as defined in Section 18007 of the Health and Safety Code, and a mobilehome, as defined in Section 18008 of the Health, and Safetv Code, but does not include a recreational vehicle, as defined in Section 799.24 of this code and Section 18010 of the Health and Safety Code or a commercial coach as defined in Section 18001.8 of the Health and Safety Code. J. "Mobilehome Owner" or "Homeowner" means any person legally occupying a mobilehome dwelling unit pursuant to ownership thereof within a mobilehome park and holding a rental or lease agreement with the park owner. K. "Operator" means the Owner, Operator, or property manager of a mobilehome park within the City of San Rafael. L. "Owner" means the Owner or lessor of real property used for a mobilehome park within the City of San Rafael. M. "Rent" means the consideration, including any bonus, benefits or gratuity, demanded or received in connection with the use and occupancy of a mobilehome lot in a mobilehome park, including services and amenities, and for the use of Real Property used for the operation of a mobilehome park, but exclusive of any 5 amounts paid for the use of the mobilehome dwelling unit. N. "Rent increase" means any additional rent demanded of or paid by a Homeowner for a rental lot and related amenities, including any reduction or elimination of amenities without a corresponding reduction in the monies demanded or paid for rent, and any additional rent demanded of or paid by an Operator for rental of real property used for the operation of a mobilehome park. O. "Rental lot" means a lot rented in a mobilehome park or offered for rent in the City of San Rafael for the purpose of occupancy by a mobilehome with all services connected with the use of occupancy thereof. P. "Services" means those facilities which enhance the use of the rental lot, including, but not limited to, repairs, replacement, maintenance, painting, heat, hot and cold water, utilities, security devices, laundry facilities and privileges, janitorial service, refuse removal, telephone service, and meeting, recreational, and other facilities in common areas of the mobile - home park in which the lots are located. 20.03.030. Applicability. The provisions of this chapter apply only to mobilehome parks which contain mobilehomes as defined in this ordinance and to the mobilehomes within such parks. 20.03.040. Notice Requirements. A park owner claiming an exemption from this ordinance based upon Civil Code section 798.17 shall provide the following notice to the person and in the manner specified in this section. A notice which conforms to the following language and printed in bold capital letters of the same type size as the largest type size used in the rental agreement shall be presented to the resident or prospective resident at the time of presentation of a rental agreement creating a tenancy with a term greater than twelve (12) months: PI IMPORTANT NOTICE TO HOMEOWNER REGARDING THE PROPOSED RENTAL AGREEMENT FOR MOBILEHOME PARR. PLEASE TARE NOTICE THAT THIS RENTAL AGREEMENT CREATES A TENANCY WITH A TERM IN EXCESS OF TWELVE MONTHS. BY SIGNING THIS RENTAL AGREEMENT, YOU ARE EXEMPTING THIS MOBILEHOME SITE FROM THE PROVISIONS OF THE CITY OF SAN RAFAEL MOBILEHOME RENT STABILIZATION ORDINANCE FOR THE TERM OF THIS RENTAL AGREEMENT. THE CITY OF SAN RAFAEL MOBILEHOME RENT STABILIZATION ORDINANCE AND THE STATE MOBILEHOME RESIDENCY LAW (CALIFORNIA CIVIL CODE SECTION 798 et seq.) GIVE YOU CERTAIN RIGHTS. BEFORE SIGNING THIS RENTAL AGREEMENT YOU MAY CHOOSE TO SEE A LAWYER. UNDER THE PROVISIONS OF STATE LAW, YOU HAVE A RIGHT TO BE OFFERED A RENTAL AGREEMENT FOR (1) A TERM OF TWELVE MONTHS, OR (2) A LESSER PERIOD AS YOU MAY REQUEST, OR (3) A LONGER PERIOD AS YOU AND THE MOBILEHOME PARR MANAGEMENT MAY AGREE. YOU HAVE A RIGHT TO REVIEW THIS AGREEMENT FOR AT LEAST 30 DAYS BEFORE ACCEPTING OR REJECTING IT. IF YOU SIGN THE AGREEMENT, YOU MAY CANCEL THE AGREEMENT BY NOTIFYING THE PARR MANAGEMENT IN WRITING WITHIN 72 HOURS OF YOUR EXECUTION OF THE AGREEMENT. IT IS UNLAWFUL FOR A MOBILEHOME PARR OWNER OR ANY AGENT OR REPRESENTATIVE OF THE OWNER TO DISCRIMINATE AGAINST YOU BECAUSE OF THE EXERCISE OF ANY RIGHTS YOU MAY HAVE UNDER THE CITY OF SAN RAFAEL MOBILEHOME RENT STABILIZATION ORDINANCE, OR BECAUSE OF YOUR CHOICE TO ENTER INTO A RENTAL AGREEMENT WHICH IS SUBJECT TO THE PROVISIONS OF THAT LAW. The notice shall contain a place for the resident to acknowl- edge receipt of the notice and shall also contain an acknowledgment signed by park management that the notice has been given to the tenant according to this section. A copy of the notice executed by park management shall be provided to the tenant. 20.03.050. Buyer's Rights. A new buyer of a mobilehome which is subject to an in-place transfer shall have all the same rights as a homeowner, as defined in Civil Code section 798.18 including: (a) The right to be offered a rental agreement for (1) a term of 12 months, or (2) a lesser period as the homeowner may request or (3) a longer period as mutually agreed upon by both the homeowner and management. (b) The right to reject the offer of a rental agreement in excess of 12 months and instead accept a rental agreement for a term of 12 months or less from the date the offered rental agreement begins. (c) The written election of the new buyer to reject a rental agreement in excess of 12 months, shall be 7 deemed to be a rental agreement between the new buyer and the park owner to a month-to-month tenan- cy with the rent limitations as set forth in this chapter sufficient for compliance with Civil Code section 798.75(a). 20.04.040. Increases Subject to Review; Exceptions. A. Except as provided in B., below, any rent increase including rent on change of ownership as hereinafter defined under Vacancy Control, proposed to take effect on or after February 1, 1993, shall be subject to this chapter. B. The following rent increases shall be exempt from review under this chapter. 1. Except as provided in section 20.04.040(2) and (3) an increase in rent for any mobilehome lot in any 12 month period which is equal to or less than the rent charged on the date 12 months prior to date the increase is to take effect, multiplied by a cost of living factor and rounded off to the nearest dollar. The cost of living factor shall be as follows: One Hundred Percent 1.00(CPI/C) where CPI/C is equal to or less than five percent (5%); but in no event, less than (3%) per year. Seventy-five Percent .75(CPI/C) or five percent (511.), whichever is greater, where CPI/C is greater than five percent (5%) and equal to or less than 10 percent (10%). Sixty-six Percent .66(CPI/C) or seven and a half per- cent (7.5%), whichever is greater, where CPI/C is greater than 10 percent (10%) . "CPI/C" shall mean the percentage change in the consumer price index for California, All Urban Consumers, San Francisco -Oakland - San Jose areas, as published by Bureau of Labor Statistics, San Francisco, over the most recent twelve month period for which figures are available through the month before the month preceding the date notice of the rent increase is given. The most recently published CPI figure available at the time the rent increase notice 8 is given shall be used for the calculation. The City of San Rafael will supply to each Owner and/or Operator the published CPI figure to be used in any rent increase. Each Owner and/or Operator shall post such document in a conspicuous place in the park off ice or office area, where it can easily be seen by the park Homeowners. 2. Mobilehome spaces where the mobilehome owner and the mobilehome park owner have entered into a negotiated lease agreement meeting the criteria of subdivision (b) of Civil Code section 798.17. 3. Mobilehome spaces that are "new construction" as defined in Civil Code section 798.7 and as exempted in accordance with Civil Code section 798.45. C. Vacancv Control. When a mobilehome is transferred by the homeowner to another with the mobilehome remaining on the space, it is sometimes referred to as an "in-place transfer". No increase in rent shall be imposed upon an in-place transfer of a mobilehome. When a mobilehome space becomes vacant and the mobilehome which is located thereon is removed from the space, the space rental shall not be increased upon re -rental of the space unless otherwise exempted under the provisions of section 20.04.040 subparagraph B.(2) and (3). D. Base Rent Provisions. In the event a mobilehome space is exempted from the provisions of this chapter by reason of the existence of a space rent agreement that meets the requirements of Civil Code section 798.17, and that agreement expires, the space rent for that space shall be the space rent in effect for that space before the agreement expired until the next annual adjustment. In the event a mobilehome space was subject to the space rent restrictions of this chapter and between October 16, 1989 and February 1, 1993, was subject to an in-place transfer, the space rent that was demanded by the park owner immediately preceding the in-place transfer shall be the space rent for the space until the next annual adjustment. 9 E. Freeze. A freeze in space rent shall be affected as set forth below for spaces where a mobilehome space was exempted from the space rental provisions of the chapter by reason of the existence of a space rent agreement that met the requirements of Civil Code section 798.17 and that agreement expires or where there has been an in-place transfer of a mobilehome between October 16, 1989 and February 11 1993. Such space rents shall remain frozen until such time that the lowest rent for a comparable space in a park on the effective date of this ordinance, where no space rent agreement that was exempt from the provisions of this chapter expired or where no in-place transfer took place between October 16, 1989, and February 1, 1993 attains the same level as the base rent determined in accordance with section D. above. Upon attainment of the level set forth in the preceding sentence, the space rent freeze provided for in this paragraph shall be lifted and the rent limitations of subsection B. above shall then apply. 20.05.050. Notices Sixty (60) days prior to any increase in rents, the Operator shall provide each Homeowner and the Owner shall provide each Operator with written notice setting the amount of the proposed increase, the then current rent and whether or not in the Owners and/or Operators opinion such increase is exempt from review under the provisions of this chapter. A copy of the notice together with a detail as to which lots within the park will be affected, shall be provided to the City Manager at the same time. 20.06.060. Limitations on Rent Increases Each park Operator shall, by November 1, 1989, establish an anniversary date for all Rent Increases, and such yearly increases, if any, except as specified below, shall be enacted only on the anniversary date of that park, which date shall also be posted in the park office or office area where it can easily be seen by the Homeowners. The increases allowed by the terms of this ordinance 10 shall be applied equally on such annual basis to all lots subject to an increase as provided herein. The Homeowners of those lots having a different anniversary date than that established by the Operators shall pay only a CPI adjustment on his/her rent until the next anniversary date, at which time the formula set forth below shall be used for future increases. The Operator shall notify the City Manager's office of the City of San Rafael in writing of such anniversary date on or before November 1, 1989. Any Homeowner in any park, who has become a resident Homeowner within the three months preceding the anniversary date for an anticipated rent increase, shall be excluded from such rent increase, as may occur on the anniversary date of the park until such time as three months shall have elapsed, at which time any rent increase imposed against them shall not exceed the amount imposed against all other lots in the park. The Operator, in calculating the amount of increase allowed, shall use the average rent per lot subject to the terms of this ordinance. This figure shall be determined by dividing the number of lots subject to the terms of this ordinance into the total gross rent receipts received from those lots. The CPI increase shall then be applied to that average lot rent, to determine the actual dollar increase. The Owner, in calculating the amount of increase allowed, shall apply increases as allowed in Section 20.04.040 (B) to the current yearly rent to determine the actual dollar increase. The calculations showing the amount of anticipated increase and how the increase was determined shall both be posted in the office or office area where it can easily be seen by the Homeowners and a copy forwarded to the City Manager's office of the City of San Rafael. 20.07.070. Petition Filing Any Homeowners who will be or have been subjected to a proposed rental or service charge increase, not exempted by the provisions of section 20.04.040 may initiate a rent review hearing 11 process by filing a petition, within forty-five (45) days of the date of notice, signed by Homeowners representing more than fifty percent (50%) of the lots subject to the increase, with the San Rafael City Manager. The Homeowners shall provide the Operator or Representatives with a copy of such petition at the same time that it is filed with the City Manager. Such petition shall include the names, addresses, and telephone numbers of the authorized Homeowner Representatives. Any Operators who will be or have been subjected to a proposed rental or service charge increase, not exempted by the provisions of section 20.04.040, may initiate a rent review hearing process by filing a petition, within forty-five (45) days of the date of notice, with the San Rafael City Manager. The Operator shall provide the Owner Representatives with a copy of such petition at the same time that it is filed with the City Manager. Such petition shall include the name, address, and telephone number of authorized Operator Representatives. 20.08.080. Petition -Form A petition for mediation or arbitration must be filed with the City Manager on the form prescribed by the City and must be accompanied by such supporting material as is necessary to clearly support the request. The petition shall contain the following certification: "I certify under penalty of perjury that the foregoing is true and correct." The petition shall be dated and subscribed by the petitioners and the place of execution shall be specified. 20.09.090. Cost of Filing The filing of a petition shall be accompanied by a cash deposit in the amount of four times the then current hourly rate charged by the Marin County Mediation Services. Upon receipt of the petition and filing fee from the Homeowners, or Operator, the City Manager shall notify the Owner and/or Operator of the receipt of the petition and shall require from the Owner and/or Operator a 12 like cash deposit. All or part of said cash deposits shall be used to pay for the City's administration costs and the mediation services established hereunder. The filing fees may be adjusted by City Council resolution from time to time to reflect cost increas- es. 20.10.100. Petition -Effect of Timely Filing Upon filing of a timely and completed petition, that portion of the requested and noticed rental increase (and only that portion) which exceeds the amount exempted under Section 20.04.040 shall not take effect unless and until such time as there is a mediation agreement or an arbitrator allows such increase or portion thereof pursuant to the provisions of this chapter. That portion equal to the amount exempted under Section 20.04.040 shall be allowed to take effect as noticed. 20.10.110. Mediation A. Upon receipt of a timely filed and completed petition for mediation, the City Manager shall refer the petition to the Marin County Mediation Services. In addition, the City Manager may from time to time employ the services of an accountant to supply information to the mediator or arbitrator such as the past twelve months CPI, a profit income to revenue statement, a profit income to investment statement, or such other financial data as may be independently required for or requested by the mediator or arbitrator. In such event, the cost of such accountant may be paid from the filing fees or by the City from redevelopment low and moderate income set aside funds. B. Any Homeowner(s) believing that any of the provisions of this ordinance are being violated, shall give written notice of such alleged violation (s) to the Operator/Representative and the operator/ Representative shall respond in writing within thirty days, denying such allegations or agreeing to correct such violation(s) within the following thirty days. In the event that 13 the Operator/Representative shall deny any or all of the allega- tions and refuse to take corrective action within the following thirty days, the Homeowner(s) shall have the right to have the matter arbitrated pursuant to Section 20.10.130 herein. Any Operator believing that any of the provisions of this ordinance are being violated, shall give written notice of such alleged violation(s) to the Owner/Representative and the Owner/Rep- resentative shall respond in writing within thirty days, denying such allegations or agreeing to correct such violation(s) within the following thirty days. In the event that the Owner/Representa- tive shall deny any or all of the allegations and refuse to take corrective action within the following thirty days, the tenant(s) shall have the right to have the matter arbitrated pursuant to Section 20.10.130 herein. The party seeking mediation, if successful, may recover all actual costs including but not limited to filing fees, attorneys fees, accounting fees, expert witness fees, plus an amount to be decided by the mediator not to exceed the sum of five hundred dollars ($500.00) as and for expenses related to travel, meals and nonexpert witness time for preparation and/or testimony. C. Within thirty (30) days of the date that the City Manager notifies the Owner an/or Operator of the filing of petition under 20.09.090, the parties shall provide all information that is reasonably available that the mediator deems necessary to resolve the dispute. Failure to provide the requested information may be deemed a refusal to mediate in good faith. All information submitted shall be in writing and shall be certified in the same manner as set forth in Section 20.08.080. D. In the event that the parties agree to a specific rental increase, the mediator shall prepare a mediation agreement so specifying between the Owner and/or Operator and the affected Operator and/or Homeowners. The mediation agreement shall be executed by the affected parties, or designated representatives. A copy of the agreement shall be sent to the City. If the mediation process fails to establish a mutually agreed amount of 14 rental increase within (30) days, or sooner as hereinafter provided, or if at any time during the mediation process, the mediator may determine that there is an impasse, or that further mediation is impractical or not likely to be of further value, the mediator shall recommend the matter for arbitration and shall so notify the City in writing. 20.10.120. Request for Arbitration A request for arbitration may be made either by the Owner, the Operator, or by the affected Homeowners in the affected mobilehome park. A request for arbitration shall be made by filing the request in writing with the City Manager no later than seven (7) working days after the postmarked date that the mediator's recommendation is mailed to the parties under Section 20.10.100. Requests for arbitration by Homeowners shall include the name and signature and rental lot number(s) of Homeowner's designated representative in the request for arbitration. 20.10.130. Arbitration -Paying All Costs The party requesting such arbitration shall be responsible for paying all costs associated with the selection and retention of the arbitrator, provided, that if the arbitration is requested by the Operator, and the final arbitration award is eighty percent (80%) or more of the increase requested by the Operator, not previously granted by an arbitrator, the Operator shall be allowed to pass the costs through to the Homeowners, spread over a one-year period in addition to any increase allowed. If the arbitration is requested by the Homeowners and the final arbitration award is eighty percent (80%) or more of the reduction requested by the Homeowners, not previously granted by an arbitrator, the Operator shall refund such cost in a lump sum to the Homeowners within thirty (30) days to be distributed to the contributing Homeowners in accordance with their contributions. The party requesting such arbitration shall be responsible for paying all costs associated with the selection and retention of the 15 arbitrator, provided, that if the arbitration is requested by the Owner, and the final arbitration award is eighty percent (80%) or more of the increase requested by the Owner, not previously granted by an arbitrator, the Owner shall be allowed to pass the cost through to the Operator, spread over a one-year period in addition to any increase allowed. If the arbitration is requested by the Operator and the final arbitration award is eighty percent or more of the reduction requested by the Operator, not previously granted by an arbitrator, the Owner shall refund such cost in a lump sum to the Operator within thirty (30) days to be distributed to the contributing Operator. 20.10.140. Arbitration Without Mediation Upon the mutual request of the parties to a rent increase dispute, a petition may be referred directly to arbitration without mediation. Such a request must be in writing, signed by all parties, or their representatives, and filed with the City Manager prior to selection of an arbitrator. In this event only, the fee of the arbitration shall be divided equally between the Homeowners and the Operator and not awarded in accordance with the provisions of Section 20.10.130. 20.10.150. Arbitration -Process A. Upon receipt of a timely and completed request for arbitration, the City Manager shall refer the petition to arbitra- tion. B. An arbitrator shall be appointed in the following manner: Either interested party may submit to the City Manager a list of three nominees who are members of the American Arbitration Association. The nominees shall be experienced professional arbitrators with particular expertise in rental disputes arbitra- tion or with experience or training showing the capabilities to deal with the issues found in the rental dispute. The lists of nominees shall include the resumes of each detailing their qualifications. To be eligible for nomination, the arbitrator 16 shall not own an interest in a mobilehome park, shall not be a resident of a mobilehome park, and shall not be an employee, officer, member or otherwise affiliated with any group or organiza- tion which has or is viewed by a significant number of Owners, Operators or Homeowners as having taken advocacy positions in rent control matters. The City Manager shall review the lists, conduct such investigation and/or interviews as he deems necessary, and consult with both parties in an attempt to select an arbitrator acceptable to both. In the event of a disagreement by either party or both of the parties, the City Manager's selection shall be final. C. The arbitrator shall conduct a hearing with the parties, and/or their representatives, within thirty (30) days of the date the arbitrator was selected. At the option of the arbitrator, the arbitrator may choose to meet only with the representatives of one of the parties at a time. During this hearing process, the concerns of each party shall be discussed, and the arbitrator shall indicate the amount and nature of further information he will need from any party in order to reach a determination. All information submitted shall be in writing and shall be certified in the same manner as set forth in Section 20.08.080. The burden of proof regarding the reasonableness or unreasonableness of the rent increase shall be on the party requesting arbitration. Each party shall comply with the arbitrator's request for information within ten (10) working days of the request. The arbitrator may proceed under this part regardless of whether any party defaults in providing any of the requested information. 20.10.160. Arbitration -Determination After reviewing the record and any additional evidence requested of the parties which has been provided, the arbitrator shall determine the amount of allowable rental increase, if any, in accordance with the standards of Section 20.06.060, if applicable, and Section 20.10.180, and the increase, if any, shall be effective as of the date for which it was originally noticed. 17 20.10.170. Arbitration -Determination Final -Conditions The determination of the arbitrator shall be final, and shall be delivered to the City Manager and the parties in writing, together with the written findings of fact supporting such determination within fifteen (15) working days of the hearing provided in Section 20.10.150. The arbitrator's allowance or disallowance of any rent increase or portion thereof may be reasonably conditioned in any manner necessary to effectuate the purposes of this chapter. 20.10.180. Standards of Reasonableness to be Applied to Rent Increases A. standards of reasonableness applicable to rent increases in order to assure Owner and/or Operator a fair and reasonable return to be considered by the Arbitrator are: ing: 1. The rental history of the mobilehome park, includ- (a) The presence or absence of past increases; (b) The frequency of past rent increases and the amounts; (c) The Owner and/or Operator's response to any tax -reduction measure; (d) The occupancy rate of the mobilehome park in comparison to comparable units in the same general area. 2. The physical condition of the mobilehome park, including the quantity and quality of maintenance and repairs performed during the last twelve (12) months. 3. Any increases or reductions in services during the twelve (12) months prior to the effective date of the proposed increase. 4. Other financial information which the Owner and/or operator are willing to provide. S. Existing market value of rents for mobilehome spaces in communities with housing comparable to San Rafael. 6. Cost to replace the park. 18 7. Changes in the Consumer Price Index for all urban consumers, San Francisco -Oakland, San Jose areas published by the Bureau of Labor Statistics. S. Any costs incurred as a result of a natural disaster and only to the extent such costs have not been reimbursed to the Owner by insurance or other sources. 9. The arbitrator shall not consider changes in operating or other expenses caused by the park Owner's refinancing of the park. B. In determining an Owner and/or Operator's fair and reasonable return, the arbitrator shall consider all relevant factors, such as the Owner's and/or Operator's investment in the mobilehome park and the Owner's net operating income; provided, that the determination may include a review of the replacement cost of the park. In any determination of what constitutes a reasonable rent increase under the circumstances, the arbitrator shall consider and weigh evidence establishing the nature and extent of any violations by either the Owner, the Operator, or Homeowners of the City of San Rafael building and housing codes. Any rent increase may be disallowed, reduced, or made subject to reasonable conditions, depending on the severity of such violations. 20.10.190. Services During the term of operation of this chapter, no Operator shall reduce or eliminate any service to any rental lot unless a proportionate share of the cost savings, due to such reduction or elimination, is simultaneously passed on to the Homeowner in the form of a decrease in existing rent or a decrease in the amount of a rent increase otherwise proposed and permitted by this chapter. 20.10.200. Homeowner and or Operator Remedies A. If notice required by Section 20.05.050 is not provided, the Homeowner and/or Operator may withhold the rent increase until such notice is provided. 19 B. In any action for recovery of rent or for unlawful detainer based on nonpayment of rent, the Homeowner and/or Operator may defend the action on the ground that the amount of rent claimed is in excess of the rent allowed by this chapter. C. Any Homeowner(s) believing that any of the provisions of this ordinance are being violated, shall give written notice of such alleged violation(s) to the Operator/Representative and Operator/ Representative shall respond in writing within thirty days, denying such allegations or agreeing to correct such violation(s) within the following thirty days. In the event that the Operator/Representative shall deny any or all of the allega- tions and refuse to take corrective action within the following thirty days, the Homeowner(s) shall have the right to have the matter arbitrated pursuant to Section 20.10.140 herein. The party seeking arbitration, if successful, may recover all actual costs including but not limited to filing fees, attorneys fees, account- ing fees, expert witness fees, plus an amount to be decided by the arbitrator not to exceed the sum of five hundred dollars ($500.00) as and for expenses related to travel, meals and nonexpert witness time for preparation and/or testimony. Any Operator believing that any of the provisions of this ordinance are being violated, shall give written notice of such alleged violation(s) to the Owner/Representative and the Owner/Rep- resentative shall respond in writing within thirty days, denying such allegations or agreeing to correct such violation(s) within the following thirty days. In the event that the Owner/Representa- tive shall deny any or all of the allegations and refuse to take corrective action within the following thirty days, the Operator(s) shall have the right to have the matter arbitrated pursuant to Section 20.10.140 herein. The party seeking arbitration, if successful, may recover all actual costs including but not limited to filing fees, attorneys fees, accounting fees, expert witness fees, plus an amount to be decided by the arbitrator not to exceed that sum of five hundred dollars ($500.00) as and for expenses related to travel, meals and nonexpert witness time for preparation 20 and/or testimony. D. Nothing in this section is intended to limit or preclude any other lawful defense, cause of action or claim of the Homeowner or Park Owner and/or Operator in a Court of competent jurisdiction. 20.10.205. Owner's Remedies - Fair Return Hearing A. In the event a park owner contends that the freeze of rents as provided by section 20.04.040 subparagraph E., does not result in a just and reasonable return to the park owner for that particular mobilehome space, the park owner may file a special petition within thirty (30) days for a hearing to determine a fair and reasonable return. B. Fair Return Hearinq. A petition for a determination of a fair and reasonable return shall be filed in writing in the format provided by the City Manager, at the City Manager's office, not less than thirty (30) days after the establishment of rent under the provisions of section 20.04.040 D. The petition shall contain the facts upon which the park owner relies to claim that a fair and reasonable return will not be received and shall contain the following additional information: 1. The name and address of the mobilehome park owner. 2. The name of the mobilehome park. 3. For each mobilehome space subject to a freeze by reason of an in-place transfer or expiration of a rental agreement in excess of twelve (12) months: a. The number of the lot or space on which the mobilehome is located. mobilehome. mobilehome. b. The name and address of the transferor of the C. The name and address of the transferee of the d. The date of transfer. e. The rent charged prior to transfer. f. The rent charged following the transfer. g. The rent proposed as a fair and reasonable 21 return. h. All previous transfers of the mobilehome located in the affected mobilehome space since October 16, 1989, together with the information requested in (a) - (g) for each such transfer. 4. The name and address of the person who signed the Notice. 5. The park owner shall mail a copy of the petition to all mobilehome owners whose rents are the subject of the petition. The petition shall contain a proof of service that a copy of the petition was mailed to all such mobilehome owners. 6. The park owner shall bear the burden of proving by a preponderance of the evidence at the hearing that because of the rent freeze, the park owner is unable to obtain a fair and reasonable return. 7. The fair and reasonable return hearing shall be in accordance with the binding arbitration proceedings of this chapter. The City Manager shall deem the filing of the petition to be a request for arbitration by the park owner. Thereafter, the provisions of section 20.10.120 through section 20.10.180 shall be applicable. 20.10.210. Retaliation A. No Operator shall in any way retaliate against any Homeowner for the Homeowner's assertion or exercise of any right under this chapter. Such retaliation shall be subject to suit for actual and punitive damages, injunctive relief and attorney's fees and costs. Such retaliation shall also be an available defense in an unlawful detainer action. No Owner shall in any way retaliate against any Operator for the Operator's assertion or exercise of any right under this chapter. Such retaliation shall be subject to suit for actual and punitive damages, injunctive relief and attorney's fees and costs. Such retaliation shall also be an available defense in an unlawful detainer action. 22 B. No Homeowner shall in any way retaliate against any Operator for the Operator's assertion or exercise of any right under this chapter. Such retaliation shall be subject to suit for actual and punitive damages, injunctive relief and attorney's fees and costs. No Homeowner shall in any way retaliate against any Owner for the Owner's assertion or exercise of any right under this chapter. Such retaliation shall be subject to suit for actual and punitive damages, injunctive relief and attorney's fees and costs. 20.10.220. Civil Remedies If any Operator demands, accepts, receives, or retains any payment of rent in excess of the maximum lawful lot rent, as determined under this Ordinance, the Homeowners of such park affected by such violation, individually or by class action, may seek relief in a court of appropriate jurisdiction for injunctive relief and/or damages. In any such court proceeding, the prevail- ing party shall be awarded his reasonable attorney's fees and the court, in its discretion and in addition to any other relief granted or damages awarded, shall be empowered to award to each affected Homeowner civil damages in the sum of not more than three times the total monthly lot rent demanded by the Operator from each such Homeowner. If any Owner demands, accepts, receives, or retains any payment of rent in excess of the maximum lawful lot rent, as determined under this Ordinance, the Operators of such park affected by such violation, individually or by class action, may seek relief in a court of appropriate jurisdiction for injunctive relief and/or damages. In any such court proceeding, the prevail- ing party shall be awarded his reasonable attorney's fees and the Court, in its discretion and in addition to any other relief granted or damages awarded, shall be empowered to award to each affected Operator civil damages in the sum of not more than three times the total monthly lot rent demanded by the Owner from each such Operator. 23 20.10.230. Penalties Any person, firm, or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemean- or and such person shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation of the provisions of this Ordinance is committed, continued, or permitted, and upon conviction of any such violation, such person shall be punishable by a fine of not more than $500.00 (five hundred dollars), or by imprisonment for not more than six (6) months, or both such fine and imprisonment. 20.10.240. Validity If any section, subsection, sentence, clause of phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of this ordinance. The City Council of the City of San Rafael hereby declares that it would have adopted the ordinance and each section, subsection, sentence, clause of phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases shall be declared invalid. 20.10.250. Publication This ordinance shall be published once in full before its final passage in a newspaper of general circulation, published and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. 20.10.260. Administration The City Manager shall establish administrative procedures for the implementation of this ordinance. ILB ,RT J. .R , Mayor Attest: JE� LEON INI, Ciy Clerk 24 The foregoing Ordinance No. 1644 was read and introduced at a regular meeting of the City Council of the City of San Rafael, held on the 1st day of February, 1993, and ordered passed to print by the following vote, to wit: AYES: COUNCILMEMBERS : Breiner, Cohen, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE and will come up for adoption as an Ordinance of the City of San Rafael at a regular meeting of the Council to be held on the 16th day of February, 1993. 25 JE M. LEONC NI, City Clerk