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HomeMy WebLinkAboutCC Resolution 9694 (Maria Freitas Senior Housing BMR)RESOLUTION NO. 169.4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE SIGNING OF A BELOW MARKET RATE HOUSING AGREEMENT BETWEEN MARIA B. FREITAS SENIOR HOUSING CORPORATION AND THE CITY OF SAN RAFAEL RE: MARIA B. FREITAS SENIOR HOUSING THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael, a Below Market Rate Housing Agreement between Maria B. Freitas Senior Housing Corporation and the City of San Rafael, a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at the regular meeting of the Council of said City on Monday, the 16' day of September, 1996, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Heller JE M zMf- . —L El City Clerk CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL UNIT AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS Project Name : Maria B. Freitas Senior Housing Address : 1 Trinity Way �z Owner : Maria B. Freitas Senior Housing Corporation o= -n m n v M THIS BELOW MARKET RATE RENTAL UNIT AGREEMENT AND Z m DECLARATION OF RESTRICTIVE COVENANTS (this "Agreement") is made and entered this date September 16 1996, between the CITY OF SAN M RAFAEL. a municipal corporation duly organized and existing under the Constitution and r y laws of the State of California (the "City"), and Maria B. Freitas Senior Housing r*+ Corporation, a California nonprofit public benefit corporation (the "Owner"). M o rn c PREAMBLE �z x o WHEREAS. the Owner proposes to construct a 62 unit residential apartment 3 complex located on Trinity Way, San Rafael, known as Maria B. Freitas Senior Housing ("Project"). z WHEREAS, the Owner owns or will own the real property located within the n corporate limits of the City and more particularly described in Exhibit "A" attached hereto n D and incorporated for reference herein (the "Property") and; � z -z 3 WHEREAS, the Owner has received the City's approval to construct the Project n • on the Property and: r a m P. ? WHEREAS the City's approval of the Project is conditioned upon Owner's Z compliance with the Housing Element of the General Plan 2000 and providing low and moderate income units as set forth in Exhibit "B" attached hereto and incorporated D n herein. NOW, THEREFORE, in consideration for the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and the Owner do hereby contract and agree as follows: AGREEMENT Section 1. DEFINITIONS AND INTERPRETATION. Unless otherwise expressly provided herein or unless the context clearly requires otherwise, the following COPY terms shall have the respective meanings set forth below for all purposes of this Below Market Rate Rental Unit Agreement and Declaration of Restrictive Covenants: "Affordable Housing Expense" is the maximum rent for any unit occupied by a Qualifying Tenant which shall be established and updated using the then current Median Gross Income for the Area as shown in the example shown in Exhibit "B". "Low Income Household" shall mean the occupant (s) of a residential unit in the Project whose aggregate adjusted household income does not exceed 80% of the Median Gross Income for the Area, adjusted for household size. "Low/Very Low Income Unit" refers to the units described in Exhibit "B". "Median Gross Income for the Area" shall mean income for households of an applicable size in the San Francisco PMSA (Primary Metropolitan Statistical Area) most recently determined by HUD adjusted for household size, as provided by Marin Housing Authority. "Plan" shall mean the City of San Rafael General Pian 2000. "Program Administrator" shall mean the administrator for compliance of the Project with the Below Market Rate Unit Rental Agreement which shall be the City. "Project" shall mean the parcel of real property in the City of San Rafael as described in Exhibit "A" hereto, and all rights and appurtenances pertaining thereto, and the buildings, structures and other improvements constructed or to be constructed thereon, including all fixtures and other property owned, leased or licensed by the Owner and located on, or used in connection with. such buildings, structures or other improvements, all of which shall be constructed and operated by the Owner in accordance with the restrictions set forth in this Agreement. "Project Period" means a period of forty (40) years commencing on the date of occupancy of 50% of the units in the Project. Upon occupancy of 50% of the units in the Project, Owner and City shall execute, and record, with the Marin County Recorder's Office. Exhibit "E" to this Agreement specifying the commencement and expiration date of the Project Period. The restrictions set forth herein shall be deemed covenants running with the land provided. however. that upon termination of this Agreement said covenants shall expire. "Qualifying Tenant" means resident households whose incomes do not exceed the household income limits for Low Income Household and/or Very Low Income Household. "Very Low Income Household" shall mean the occupant (s) of a residential unit in the Project whose aggregate adjusted household income does not exceed 50% of the Median Gross Income for the Area, adjusted for household size. Section 2. QUALIFYING TENANTS (a) SELECTION. For the duration of the full Project Period, Qualifying Tenant selection shall be based on income eligibility for Low and Very Low Income Households as defined in Section 1 and subject to final approval by the Owner. (b) QUALIFICATION. Qualifying Tenant status shall be determined at the time of initial occupancy of a unit by the tenant(s) and certified annually on the basis of a Tenant Income Certification (Exhibit "C") executed by the Qualifying Tenant and accompanied by a copy of: (i) his I her federal income tax return for the immediately prior tax year ; or (ii) his / her employer's verification of current income ; or (iii) if the Qualifying Tenant is self-employed or the tax return is unavailable, such other satisfactory evidence of income. If a Qualifying Tenant certifies that he/she did not file or did not retain a copy of their federal tax return, other evidence, such as a current wage statement or employer records must be obtained. (c) OCCUPANCY. Throughout the Project Period, the required Low/Very Low Income Units in the Project shall be occupied and at all times be rented to Qualifying Tenants at rental rates not to exceed the Affordable Housing Expense as set forth in Exhibit "B". No Qualifying Tenant shall be denied continued occupancy after having qualified to occupy a Low / Very Low Income Unit, because his / her income later exceeds the income limits. If, as of the most recent Tenant Income Certification, it is determined that the income of Qualifying Tenant exceeds one hundred -forty percent (140%) of the Median Gross income for the Area, then he I she shall no longer qualify as a Qualifying Tenant. The Owner shall provide the next vacated unit (s) of comparable or smaller size to a Qualifying Tenant, as needed to achieve compliance with this Agreement. The Owner shall immediately notify, in writing, each tenant who is no longer a Qualifying Tenant of such fact, and that such tenant(s) rent is subject to increase 30 days after receipt of such notice. The Owner shall be entitled to so increase any such tenant's rent only if the Owner complies with any law applicable thereto and only after the Owner has rented the next available unit or units in the Project on a one-for-one basis to a Qualifying Tenant, or holds units vacant and available for occupancy by Qualifying Tenants. The Owner agrees to inform all prospective Qualifying Tenants of the requirements for annual certification of income and of the provisions of the preceding paragraphs. Section 3. REPORTING. (a) EXHIBIT "C" TENANT INCOME CERTIFICATION. Exhibit "C" shall be obtained from each Qualifying Tenant and maintained on file by the Owner. Each Tenant Income Certification obtained from a Qualifying Tenant shall be attached to and submitted with the next Certification of Continuing Compliance submitted to the Program Administrator. Tenant Income Certification requirements may be met by submitting the then current HUD Annual Tenant Eligibility Certification form(s) inlieu of this Exhibit C. (b) EXHIBIT "D" CERTIFICATION OF CONTINUING COMPLIANCE. Exhibit "D" shall be submitted by the Owner to the Program Administrator quarterly until the project is fifty percent (50%) occupied and annually thereafter for the Project Period. (c) The Owner shall permit the Program Administrator to inspect the Project records at the Owner's office during normal business ours upon 10 days notice. Section 4. COVENANTS. It is intended and .determined that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Project for the benefit thereof, and the burdens and benefits thereof shall bind and inure to the benefit of all successors in interest of the parties hereto; provided, however, that on the termination of this Agreement said covenants shall automatically expire. Section 5. TERM. This Agreement shall become effective upon its execution and delivery and shall continue for the term of the Project Period as provided in Section 15. Except as provided in the immediately following paragraph, this Agreement shall remain in full force and effect for the Project Period. Section 6. DEFAULT AND ENFORCEMENT. In the event the Owner leases any Low I Very Low Income Unit at a rent in violation cf this Agreement, the Owner shall immediately, upon notice from the City, rent the unit at the Affordable Housing Expense in accordance with Exhibit "B" of this Agreement and pay the following amounts; (i) to the Qualifying Tenant, an amount equal to the difference between the amount the Owner actually received for the unit leased in violation of this Agreement and the amount the Owner would have received pursuant to Exhibit "B" of this Agreement for the term of the violation; and (ii) to the City, as liquidated damages, an amount equal to two times the difference between the amount the Owner actually received for the unit leased in violation of this Agreement and the amount the Owner would have received pursuant to Exhibit "B" of this Agreement for the term of the violation. The parties agree that this formula for establishing liquidated damages is reasonable considering all the circumstances existing on the date of this Agreement, including (a) the range of harm that would result to the City and its housing program under its general plan from a violation of this Agreement by the Owner, and (b) the anticipation that proof of the actual damages would be costly and inconvenient. In the event the Qualifying Tenant 4 no longer is a resident at the Project and cannot be located within a reasonable time the Owner shall pay to the City the total amount due to the Qualifying Tenant under (i) above together with the total amount due the City under (ii) above. Section 7. MONITORING FEE. The Owner agrees to pay to the City during the Project Period an annual monitoring fee payable on or before June 1 of each year which shall be calculated as follows: $50.00 per Low / Very Low Income Unit for the first 25 units ( $1,250.00) and $10.00 per unit for the additional 36 Low / Very Low Income units ($360.00). The total annual fee is $1,610.00. If the actual expenses of the City in monitoring compliance by the Owner with provisions of this Agreement are in excess of $1,610.00 in any annual period, the Owner, upon written demand by the City shall pay such actual excess costs in an amount not to exceed a 10% increase of the annual monitoring fee. Section 8. UNIT MIX, LOCATION AND HOUSEHOLD SIZE. The Very Low / Low Income Units shall be located on the parcel described in Exhibit "A". Section 9. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. Section 10. AMENDMENTS. This Agreement shall be amended only by written instrument signed by all of the parties hereto. Section 11. ATTORNEY'S FEES. In the event that a party to this Agreement brings an action against the other party to this Agreement by reason of the breach of any condition or covenant in this Agreement, or otherwise arising out of this Agreement. the prevailing party in such action shall be entitled to recover from the other reasonable attorney's fees to be fixed by the court which shall render a judgment, as well as the costs of the suit. Section 12. SEVERABILITY. If any provision of this Agreement shall be invalid, inoperative or unenforceable as applied in any particular case because it conflicts with the provision (s) or the Constitution or any state or federal statute or rule of public policy, then such circumstance shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance or of rendering any other provision or provisions contained herein invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections contained in this Agreement shall not affect the remaining portions of this Agreement, or any part hereof. Section 13. RECORDING AND FILING. The Owner shall cause this Agreement and all amendments hereto to be recorded and filed in the real property records in the office of the County Recorder of Marin County upon the later of (a) within 5 working days of the City's execution of this Agreement or (b) the Owner's acquisition of the Property and shall pay all fees and charges incurred in connection therewith and shall transmit a recorded copy to the City. Section 14. NOTICE. All notices required or permitted under this Agreement shall be sent by certified United States mail, or an overnight courier service requiring a signed receipt, addressed as follows : TO THE CITY : City of San Rafael P.O. Box 151560 San Rafael, CA 94915-1560 Attn : City Manager TO THE OWNER: Maria B. Freitas Senior Housing Corporation 1028-A Howard Street San Francisco, CA 94103 Attn: President Notice shall be deemed served for purposes of this Agreement one day after deposit in the United States mail or acceptance by the overnight courier service. Either party may change its address for purpose of notice by giving notice pursuant to this section. Section 15. TERMINATION. This Agreement shall terminate and be of no further force or effect at the end of the Project Period. Upon the expiration of the Project Period the City shall cooperate with the Owner, at the sole expense of the Owner, in the recording of such instruments or instruments of release or termination as the Owner may reasonably request. Section 16. HUD PROVISIONS. This Agreement is subject and subordinate to the HUD Mortgage Note, Deed of Trust, Regulatory Agreement and Capital Advance Use Agreement recorded in connection with the making of a capital advance for Supportive Housing for the Elderly as they may be amended from time to time or superseded, or title to the Project is held by HUD. So long as any such HUD documents are in effect, the City agrees: a. The HUD Mortgage Note. Deed of Trust. Regulatory Agreement and Use Agreement may be amended, extended, renewed, assigned, or superseded without the consent of the City. b. The City shall not declare a default without prior written consent of HUD. C. The Project will be constructed and operated in conformance with the provisions of Section 202 of the Housing Act of 1959, as amended and all regulations and administrative requirements relating to such statute. In the event of any conflict between this Agreement and the provisions of any HUD regulations, related 6 administrative requirements or capital advance documents ( including but not limited to the Use Agreement, Mortgage Note, Deed of Trust, Regulatory Agreement and Project Rental Assistance Contract ), the HUD regulations, related requirements or capital advance documents shall control. d. This Agreement shall not be amended without prior written approval of HUD. e. Enforcement of the provisions of this Agreement shall not result in any claim against the Project, the capital advance proceeds, any reserve or deposit required by HUD in connection with the capital advance, or the rents or other income from the Project other than residual receipts authorized for release by HUD. f. In the event that any restrictions on occupancy, use and rents at any time exc--eds HUD's restrictions on occupancy or rents or otherwise affects the financial viability of the Project ( i.e. impairs the Owner's ability to sustain a level of income sufficient to meet all financial obligations of the Project, including HUD required escrows and operating expenses) HUD reserves the right to void such restrictions for as long as it deems necessary_ IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first written above. ATTEST: Joanne M. Leoncini City Clerk CITY OF 71FA BY : Na e. A beoro Title : Mayor Maria B. Freitas Senior Housing Corporation BY : Name: Jane Graf Title : President CALIFORNIA ALL-PURPOS= ACKNOWLEDGMENT Of r rte...�.r.r.+--------- <...L.�! ��y J Statp of Cali fo rn i a i I County of Marin On Mon., Sept. 23, 1996 before me, Nancy Eurman , Notary Public Date Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared Albert J. Boro Name(s) of Signer(s) ® personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person( whose name* is/ape-subscribed to the within instrument and acknowledged to me that he/she/they-executed the same in his/bei Da;irauthorized capacity(A*, and that by his/tDa#tJ2e# signature(r-on the instrument the personts),,- * NANCY EURMAN D or the entity upon behalf of which the persorgs)-acted, 0 ® COMM. #1086576 O executed the instrument. Q NOTARY PUBLIC -CALIFORNIA MARIN COUNTY f My Gomm. Expires Feb. 4, 2000 WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Below Market Rate Housing Agree. re Marin B. Freitas Senior Housing Corp. Document Date: Mon., Sept. 16, 1996 Number of Pages: 13 pages Signer(s) Other Than Named Above: N/A Capacity(les) Claimed by Signer(s) Signer's Name: Al be rt J. Bo ro ❑ Individual IN Corporate Officer Title(s): Mavor ❑ Partner — ❑ Limited -�i General ❑ Attorney -in -Fact ❑ Trustee lWelal OWN i:_- ❑ Guardian or Conservator 119 ❑ Other: Top of thumb here .� Signer Is Representing: t� t) (� City of San Rafael :j t! 1: ® 1994 National Notary Association - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park- CA 91309-7184 Signer's Name: ❑ Individual ❑ Corporate Officer Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee _ El Guardian or Conservator ❑ Other: Top of thumb here Signer Is Representing: Prod. No. 5907 Reorder. Call Toll -Free 1-600-676-6827 EXHIBIT "B" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS PROJECT NAME: Maria B. Freitas Senior Housing DATE ADDRESS: 1 Trinity Way OWNER: Maria B. Freitas Senior Housing Corporation TOTAL NUMBER OF UNITS: 62 TOTAL NUMBER OF LOW / VERY LOW: 61 NUMBER OF VERY LOW INCOME UNITS: 25 (approx. 40% of total) NUMBER OF LOW INCOME UNITS: 36 (approx_ 60% of total) AFFORDABLE HOUSING EXPENSE CALCULATION: Affordable Housing Expense includes Utilitv Expense. For example, using the Marin County FY 1996 Median Household Income Schedule such calculation would be as follows Low Income Units: The one bedroom unit Housing Expense shall not exceed 1/12 of 30% of 65% of the median gross annual income for a 2 person household. 1 person 2 person Median 42,900 49,050 65% 27,900 31,900 1 Bedroom Income : $31,900 (Two person household @ 65% of median) Housing Expense : ($31,900112) x 30% = $798 Very Low Income Units : The one bedroom unit monthly rent shall not exceed 1/12 of 30% of 50% of the median gross annual income for a 2 person household. 1 person 2 person Median 42,900 49,050 50% 21,450 24,500 1 Bedroom Income: $24,500 (Two person household @50% of median) Housing Expense : ($24,500/12) x 30% = $613 EXHIBIT "C" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS TENANT INCOME CERTIFICATION PROJECT NAME: Maria B. Freitas Senior Housing DATE: ADDRESS: 1 Trinity Way OWNER: Maria B. Freitas Senior Housing Corporation Note: Tenant Income Certification requirements may be met by submitting the then current HUD Annual Tenant Eligibility Certification form(s) inlieu of this Exhibit C. APARTMENT NO. MONTHLY RENT: TENANT / HOUSEHOLD NAME: last first TOTAL CURRENT HOUSEHOLD GROSS ANNUAL INCOME : (total household income includes all wages, salaries, etc., as reported as gross income for federal income tax or pay stubs or other relevant documentation.) Attached hereto are federal or state income tax returns, stubs from paychecks or other evidence of the income of the persons listed below. Name of Member of the Relationship Age Social Place of Household Security No. Employment )/We the undersigned have read and answered fully, frankly and personally each of the above questions under penalty of purjury and do hereby swear they are true. Date Tenant - Head of Household EXHIBIT "D" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS CERTIFICATION OF CONTINUING COMPLIANCE PROJECT NAME: Maria B. Freitas Senior Housing DATE: ADDRESS: 1 Trinity Way OWNER: Maria B. Freitas Senior Housing Corporation TOTAL UNITS: 62 TOTAL VERY LOW and LOW UNITS: 61 The undersigned, in accordance with the BELOW MARKET RATE RENTAL UNIT AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS with the City of San Rafael dated for the Project does hereby certify that during the preceding twelve (12) months, the following units were occupied in accordance with the Below Market Rate Rental Unit Agreement and does hereby further certify that the representation set forth herein are true and correct to the best of the undersigned's knowledge. Low Income Tenants Name Unit Monthly Annual Household No. Rent Income size Signed : Date Owner attach additional sheets if necessary EXHIBIT "E" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS NOTICE OF COMMENCEMENT OF PROJECT PERIOD PROJECT NAME: Maria B. Freitas Senior Housing DATE: ADDRESS: 1 Trinity Way OWNER: Maria B. Freitas Senior Housing Corporation The "Project Period" as defined in that certain BELOW MARKET RATE RENTAL UNIT AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS, recorded on as Document # , in the Office of the Marin County Recorder and pertaining to the real property within the City of San Rafael, State of California, described in Exhibit "A" attached hereto, commenced on The Project Period will expire on ATTEST: City Clerk CITY OF SAN RAFAEL Name' Title : OWNER BY: Name: Title: