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ED BMR Agr.; 1515 Lincoln Aver' ( RECORDING REQUESTED By and WHEN RECORDED MAIL TO: Esther Beirne, City Clerk PO Box 151560 San Rafael, CA 94915-1560 No fee for recording pursuant to Government Code Section 27383 This is to certify that this is a true and correct copy of the original document recorded as No. 2c,12 ire -,--/75•}'7 inthe County of , 4 Old Republic Title Company r CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT, RESTRICTION ON SALES PRICE, AND DECLARATION OF RESTRICTIVE COVENANTS PROJECT NAME: 1515 LINCOLN Date: 11 //-x/2012 ADDRESS: 1515 Lincoln Avenue San Rafael, CA 94901 OWNER: Marin Icon, L.P., a California Limited Partnership THIS BELOW MARKET RATE RENTAL AGREEMENT, RESTRICTION ON SALES PRICE, AND DECLARATION OF RESTRICTIVE COVENANTS (hereinafter the "BMR Rental Agreement" or the "Agreement") is made and entered this November -ff, 2012, between the CITY OF SAN RAFAEL, a municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"), and Marin Icon, L.P., a California Limited Partnership (the "Owner") collectively the "Parties," with reference to the following: A. The Owner is the owner of that certain real property located at 1515 Lincoln Avenue and situated within the corporate limits of the City, which real property is more particularly described in Exhibit "A" attached hereto (the "Property"). The Owner proposes to develop the Property with a new 24 Unit residential condominium project (the "Project"). A condominium map forthe Projectwas recorded on October 28, 2004 as Instrument No. 2004-0092198 in the Official Records of Marin County, California. B. The City has adopted Affordable Housing Requirements in accordance with the provisions of the Housing Element of its General Plan and Zoning Ordinance Section 14.16.030 of the San Rafael Municipal Code (the "Affordable Housing Requirements"). Pursuant to the Affordable Housing Ordinance, the Project is required to provide three affordable units. C. The Owner proposes to fulfill the requirements Section 14.16.030 of the San Rafael Zoning Ordinance by providing Affordable Units of a single one bedroom unit and two units containing two bedrooms. D. The Owner desires to initially rent the Affordable Units at an Affordable Rent and fflIN L to sell the Affordable Units at an Affordable Ownership Price in the event that the Affordable Units are offered for sale to the public. E. The Property is presently encumbered with a Below Market Rate Agreement and Declaration of Restrictive Covenants (the "Developer Agreement") between the City, the Housing Authority of the County of Marin, a public body, corporate and politic, created under the Housing Authority Law of the State of California ("Marin Housing Authority"), and Michael O'Mahoney and J.F. Sullivan, dated October 21, 2003. F. The Parties hereto desire, by this Agreement, to cooperate in implementing the efforts of the Owner to comply with the Affordable Housing Requirements. NOW THEREFORE, it is hereby agreed by and between the Parties hereto as follows: AGREEMENT The foregoing recitals are hereby incorporated by reference and made part of this Agreement. Section 1. Definitions. In addition to those terms defined in the Recitals and elsewhere in this Agreement, the following terms are specifically defined for the purposes of this Agreement: a) "Affordable Ownership Price" means a sales price calculated by Marin Housing Authority that includes a reasonable down payment and results in a Monthly Housing Payment during the first calendar year of a household's occupancy that (i) for Low Income Households, is equal to or less than one -twelfth (1 /12) of thirty percent (30%) of sixty five percent (65%) of Area Median Income, as adjusted for Assumed Household Size; and (ii) for Moderate Income Households, is equal to or less than one -twelfth (1 /12) of thirty percent (30%) of ninety percent (90%) of Area Median Income, as adjusted for Assumed Household Size. An example of the calculations and methodology to be used to determine the Affordable Ownership Price is illustrated in Exhibit "F" attached hereto. b) "Affordable Rent" means total monthly housing expenses paid out-of-pocket by the Tenant and independent of any subsidy or assistance received by the Tenant of an Affordable Unit as calculated by the City of San Rafael for use and occupancy of an Affordable Unit and for land and associated facilities, including one parking space and reduced by a reasonable allowance for utilities. The utility allowance calculation shall be based on a schedule for attached units provided by Marin Housing Authority for gas home heating, gas home cooking and basic electricity that for Low Income Households, is equal to or less than one -twelfth (1 /12) of thirty percent (30%) of eighty percent (80%) of Area Median Income, as adjusted for Assumed Household Size. The initial Affordable Rent is shown in Exhibit "B" attached hereto. c) "Affordable Units" means three rental units to be provided on site that are reserved 2 for occupancy by Low Income Households at an Affordable Rent described in Exhibit "B". d) "Area Median Income" means median yearly income in Marin County as published pursuant to California Code of Regulations, Title 25, Section 6932, or successor provision. e) "Assumed Household Size" shall be based on presumed maximum occupancy levels of one person in a studio apartment, two (2) persons in a one -bedroom Unit, three (3) persons in a two-bedroom Unit, and one additional person for each additional bedroom thereafter. f) "Low Income Affordable Unit" means an Affordable Unit reserved for occupancy by Low Income Households at an Affordable Ownership Price or Affordable Rent described in Exhibit "B". g) "Low Income Household" means a household whose income does not exceed the lower income limits applicable to Marin County, adjusted for household size, as published annually by the California Department of Housing and Community Development. h) "Market Rate Units" are the remaining 21 Units in the Project that are not Affordable Units. i) "Moderate Income Household" means a household whose income does not exceed the moderate income limits applicable to Marin County, adjusted for household size, as published annually by the California Department of Housing and Community Development. j) "Moderate Income Unit" means an Affordable Unit reserved for purchase by Moderate Income Households at an Affordable Ownership Price described in Exhibit "F ". k) "Tenant" means a household occupying a Unit. 1) "Term" means a period of fifty-five (55) years commencing on the date of recordation of this Agreement or the date when all Affordable Units are sold at an Affordable Ownership Price, whichever is earlier. m) "Units" means, collectively, the Affordable Units and Market Rate Units. Section 2. Occur)ancv Reauirements and Allowable Rent. a) Low Income Units. Subject to the provisions of Section 3 below, three (3) Affordable Units shall be rented to and occupied by or, if vacant, available for occupancy by Low Income Households at an Affordable Rent. b) Section 8 Tenants. Owner may accept as Tenants of the Affordable Units households who are recipients of federal certificates for rent subsidies pursuant to the 3 existing housing program under Section 8 of the United States Housing Act, or its successor. c) Rent Increases. Increases to the Affordable Rent shall be based on the increases in the Area Median Income, and shall not be less than the baseline rents established in this Agreement. Such rent may not be increased more often than once every twelve (12) months. Owner shall provide each Tenant of an Affordable Unit with at least sixty (60) days' written notice of any increase in the Affordable Rent. d) Bedroom Distribution. The Affordable Units shall include the number of bedrooms and square footage indicated in Exhibit "B" attached hereto. Section 3. increased Income of Tenants of Affordable Units. a) Non-Qualifvina Household. It, upon recertification of a Tenant's income, the Owner determines that a Tenant has an income exceeding the qualifying income for a Moderate Income Household, then, upon expiration of the Tenant's lease and after sixty (60) days written notice to Tenant, the Owner may, at Owner's sole discretion: (i) increase the Tenant's rent to market -rate rents; or (ii) relocate such Tenant to any other Unit, if available, and charge such Tenant market -rate rents; or (iii) terminate such Tenant's occupancy; provided, however, that if any such Tenant fails or refuses to vacate the applicable Unit notwithstanding the termination of its occupancy pursuant to the preceding clause (iii), then provided Owner is engaged in good faith efforts to evict such Tenant, the inability or failure of Owner to maintain the number of Affordable Units required under this Agreement as a result of or relating to such Tenant's failure or refusal to vacate shall be deemed not to be in breach of this Agreement. If Owner elects to increase rent pursuant to clause (i) of the preceding sentence, then the Owner shall rent the next available Unit in the Project to a Very Low Income Household or Low income Household, as applicable, at Affordable Rent. Notwithstanding the foregoing, this Section 3.a. shall not be interpreted to require Owner to rent or continue to rent an Affordable Unit or a Market -Rate Unit to a non- qualifying household. Section 4. Tenant Selection and Marketinq a) Prohibition on Discrimination in Tenant Selection. The Owner shall not discriminate against applicants on the basis of source of income or rent payment (for example, AFDC or Section 8), and the Owner shall consider a prospective tenant's satisfactory credit history and previous satisfactory rent history of at least one (1) year as sufficient evidence of the ability to pay the applicable Affordable Rent on a timely basis when due. The Owner shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective Tenants, nor shall the Owner apply or permit the application of management policies or lease provisions with respect to the Affordable Units which have the effect of precluding occupancy of Affordable Units by such prospective Tenants. F51 hu b) Securitv Deposits. The Owner shall not require security deposits on the Affordable Units in excess of one (1) month's Affordable Rent for such Units, and shall not require for such Units any other deposits, including (without limitation) key deposits, cleaning deposits, orfinal month rent deposits. Affordable Units with pets may be charged a pet deposit. The pet deposit charged to Affordable Units may not exceed the pet deposit charged to Market Rate Units. c) Lease Provisions. Owner shall include in leases for all Affordable Units provisions which authorize Owner to immediately terminate the tenancy of any household one or more of whose members misrepresented any fact material to the household's qualification as a Very Low or Low Income Household. Each lease or rental agreement shall also provide that the household is subject to annual certification in accordance with Section 5 below, and that, if the household's income increases above the applicable limits for a Very Low Income or Low Income Household, such household's rent may be subject to increase. Section 5. Income Certification and Reportinq. a) Tenant Income Certification. The Owner shall obtain, complete, and maintain on file income certifications from Tenants residing in the Affordable Unit(s) dated no more than thirty (30) days prior to initial occupancy and annually thereafter. The Owner shall make a good faith effort to verify that the income reported by an applicant is accurate by obtaining two (2) or more of the following as a part of the verification process: (1) obtain a minimum of the three (3) most current pay stubs for all adults age eighteen (18) or older; (2) obtain an income tax return for the most recent tax year; (3) conduct a credit agency or similar search; (4) obtain the three (3) most current savings and checking account bank statements; (5) obtain an income verification form from the applicant's current employer; (6) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (7) if the applicant is unemployed and has no tax return, obtain another form of independent verification. If an occupant of a Unit fails for any reason to provide information requested by the Owner for the annual certification, then the Owner shall immediately terminate such household's tenancy in a manner consistent with applicable laws. The Owner shall obtain an Occupant Income Certification (Exhibit "C"), or a similar form as may be approved by the City, from the occupants of each Affordable Unit and maintain that form on file. b) Annual Report to the Citv. Owner shall submit to the City (a) not later than the forty- fifth (45") day after the close of each calendar year, or such other date as may be requested by the City, a statistical report, that shall include the rent, income, and household size of each Tenant occupying an Affordable Unit. The report shall also state the date the tenancy commenced for each Affordable Unit and such other information as the City may be required by law to obtain. Exhibit "D," Certification of Continuing Compliance, or a similar form as may be approved by the City, may be used to meet this requirement. The annual report is to be submitted by the Owner to the City quarterly until the Affordable Units are occupied and annually thereafter for the Term. 5 c) Additional Information. Owner shall provide any additional information reasonably requested by the City pertaining to matters which are the subject of this Agreement. The City shall have the right to examine and make copies of all books, records or other documents of Owner which pertain to any Affordable Unit. d) Records. The Owner shall maintain complete, accurate, and current records pertaining to the Affordable Units for five (5) years after creating such records, and shall permit any duly authorized representative of the City to inspect and copy such records, including the records pertaining to income and household size of the households occupying the Affordable Units. e) On-site Inspection. The City shall have the right to perform an on-site inspection of the Affordable Units at least one (1) time per year provided that the City provides reasonable notice of such inspection. The Owner agrees to cooperate in such inspection. Section 6. Monitoring Fee. The Owner agrees to pay to the City during the Term an annual monitoring fee payable on or before July 1 of each year, which shall be calculated at the rate of $50.00 for each Affordable Unit per year. If the actual expenses of the City in monitoring compliance by the Owner with provisions of this Agreement are in excess of $600.00 in any one-year period, the Owner upon written demand shall pay such actual excess costs in an amount not to exceed 5% increase per year. Section 7. Agreement to Limitation on Rents. a) The City and the Owner acknowledge that the Project is mapped as an ownership project but that Owner desires to rent the Affordable Units and to comply with the Affordable Housing Requirements by provision of the Affordable Units on the Property as provided for herein. The City and the Owner agree that such compliance is consistent with the Affordable Housing Requirements and will not constitute a violation of the Costa - Hawkins Act. The Owner further agrees that the terms of this Agreement are fully enforceable and are compliant with all Federal, State, and City laws and ordinances. The Owner shall further comply with the Affordable Housing Requirements as required herein if and when individual Affordable Units are offered for sale. Section 8. Sale of Affordable Units. In the event that the Owner later determines to offer any Affordable Units for sale, the following shall apply. a) Affordable Sales Price. The Owner shall sell the Affordable Units to Low Income and Moderate Income Households at an Affordable Sales Price established by the City or Marin Housing Authority as described in Sections 7 through 9 of the Developer Agreement and applicable definitions, attached hereto as Exhibit "E." Three Affordable Units shall be sold to Moderate Income Households. b) Notification to Citv and Marin Housing Authoritv. At least one hundred twenty (120) C: days before offering a rental Affordable Unit for sale, the Owner shall provide the City and Marin Housing Authority with written notice of the proposed sale of the Affordable Unit, including the number of bedrooms and required income level of the Unit. Owner shall comply with all provisions relating to the sale of the Affordable Units specified in Exhibit „E c) Notification to Tenants; Relocation Assistance. Owner shall provide all notices to Tenants of the Affordable Units required by state law, including, at the time sale of the Affordable Units is proposed, notices required for residential condominium conversion projects. Additionally, at the time sale of the Affordable Units is proposed, the Owner shall provide all tenants of the Affordable Units with the same notices, rights, and relocation benefits as provided by San Rafael Municipal Code Section 14.16.279. Each Affordable Unit shall first be offered for sale to the existing Tenant at the Affordable Ownership Price. d) Release of Agreement. If and when any individual residential units (including the Affordable Units) are sold in compliance with this Agreement, the portions of the Property underlying the respective residential units shall be released from the burdens of this Agreement. Upon sale of each of any of Unit in the Project, City shall execute and record a release of each such residential unit from the burdens of this Agreement if at the time the Owner is in compliance with the terms of this Agreement. Section 9. Term. The provisions of this Agreement shall apply to the Property for the entire Term. This Agreement shall bind any successor, heir or assign of Owner, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the City. Section 10. Covenants Runninq with the Land. The City and Owner hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the Term of this Agreement said covenants and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the City expressly releases such conveyed portion of the Property from the requirements of this Agreement. Until the Property is released from the burdens of this Agreement, the owners of fee title to the Property shall expressly make the conditions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in the Property. Section 11. Default and Remedies. Failure of the Owner to cure any default in the Owner's obligations under the terms of this Agreement within thirty (30) days after the delivery of a written notice of default from Marin Housing Authority or the City (or such longer period of time up to an additional one hundred twenty (120) days as may be necessary to remedy such default, provided that the Owner has commenced action during 7 the thirty (30) days necessary to remedy such default, and the Owner is proceeding with reasonable diligence to remedy such default) will constitute a default under this Agreement and the Affordable Housing Requirements, and, in addition to any other remedy authorized by law or equity for breach of this Agreement, Marin Housing Authority and/or the City may exercise any and all remedies available to it with respect to the Owner's failure to satisfy the terms of this Agreement and the Affordable Housing Requirements, including but not limited to: a) exercising any remedies available under the Subdivision Map Act, the Affordable Housing Requirements, the City's Municipal Code, or otherwise, with respect to the Owner's failure to satisfy the terms of this Agreement and the Affordable Housing Requirements; b) instituting against the Owner, or other parties, a civil action for declaratory relief, injunction or any other equitable relief, or relief at law, including without limitation an action to rescind a transaction and/or to require repayment of any funds received in connection with such a violation; c) where one or more persons have received a financial benefit as a result of violation of this Agreement or of any requirement imposed under the Affordable Housing Requirements, assessing, and instituting legal action to recover as necessary, a penalty in any amount up to and including the amount of financial benefit received, in addition to recovery of the benefit received; d) Action to Compel Performance or for Damages. The City may bring an action at law or in equity to compel Owner's performance of its obligations under this Agreement, and/or for damages; e) Excess Rent. In the event the Owner leases any Affordable Unit at a rent that exceeds the Affordable Rent in violation of this Agreement, the Owner shall immediately, upon notice from the City, rent the Unit at the Affordable Rent in accordance with Exhibit "B" of this Agreement and pay: (i) to the occupant or former occupant of the Affordable Unit, 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 from 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 Tenant cannot be located within a reasonable time the Owner shall pay to the City the total amount due to the former occupant. Section 12. Remedies Cumulative. No right, power, or remedy given to Marin Housing Authority or to the City by the terms of this Agreement or the Affordable Housing Requirements is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to Marin Housing Authority and the City by the terms of any such document, the Affordable Housing Requirements, or any statute or otherwise against Owner and any other person. Neither the failure nor any delay on the part of Marin Housing Authority or the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by Marin Housing Authority or the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. Section 13. Attornevs Fees and Costs. If the City or the Owner is required to initiate legal proceedings to enforce its rights under this Agreement, the prevailing party in such action shall be entitled to an award of reasonable attorneys' fees and costs in addition to any other recovery under this Agreement. Section 14. Hold Harmless and Indemnification. Except for an award of attorneys fee and any other recovery to Owner pursuant to Section 13, Owner will indemnify and hold harmless the City and their elected officials, officers, employees, and agents in their official capacity (hereinafter collectively referred to as "Indemnitees"), and any of them, from and against all loss, all risk of loss and all damage (including expense) sustained or incurred because of or by reason of any and all claims, demands, suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of or relating in any manner to the Project, the Affcrdable Units, or Owner 's performance or non-performance under this Agreement, including without limitation the construction or sale of any Unit in the Project, and shall protect and defend Indemnitees, and any of them with respect thereto, except to the extent arising from the gross negligence or willful misconduct of Marin Housing Authority or the City. The provisions of this Section 14 shall survive expiration or other termination of this Agreement or any release of part or all of the Property from the burdens of this Agreement, and the provisions of this Section 14 shall remain in full force and effect. Owner's damages in no case shall exceed its rights to and value of the property subject to this agreement. Section 15. Notice. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, or by express courier service, to the party to receive such notice at the addresses set forth below: TO THE CITY: City of San Rafael Attn: Economic Development Department P.O. Box 151560 San Rafael, CA 94915-1560 E TO THE OWNER: Marin Icon, L.P., a California Limited Partnership 104 Tiburon #200, Mill Valley, CA 94941 TO MARIN HOUSING: Marin Housing Authority 4020 Civic Center Drive San Rafael, CA 94903-4173 Attn: Executive Director Any party may change its address for purpose of notice by giving notice pursuant to this section. Any party may change the address to which notices are to be sent by notifying the other parties of the new address, in the manner set forth above. Section 16. Integrated Agreement, This Agreement constitutes the entire Agreement between the parties and no modification shall be binding unless reduced to writing and signed by the Parties. Section 17. Amendment of Aareement. This Agreement shall remain in effect for the Term. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of the City and Owner. Section 18. No Joint Venture or Partnership. Nothing contained in this Agreement or any document executed pursuant to this Agreement shall be construed as creating a joint venture or partnership between Marin Housing Authority, City, and Owner. Nothing contained in this Agreement shall create or justify any claim against Marin Housing Authority or City by any person that Owner may have employed or with whom Owner may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the Property or the construction of the Project. Section 19. Applicable Law and Venue. This Agreement shall be governed by California law. Venue for any dispute arising out of this Agreement shall be Marin County. Section 20. Waivers. Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of Owner or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Owner to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by Owner shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City's written consent to future waivers. Section 21. Title of Parts and Sections,. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions. 10 Section 22. Multiple Oriainals, Counterpart. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. Section 23. Severabilitv. In the event any limitation, condition, restriction, covenant, or provision contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction, or if any provision of this Agreement is rendered invalid or unenforceable pursuant to any California statute which became effective after the effective date of this Agreement, the remaining portions of this Agreement shall nevertheless remain in full force and effect. Section 24. Exhibits. The following exhibits are attached to this Agreement: Exhibit A Legal Description of the Property Exhibit B Calculation of Affordable Rent Exhibit C Occupant Income Certification Exhibit D Certificate of Continuing Compliance Exhibit E Provisions Applicable to Sale of Affordable Units (Exhibit C of Developer Agreement) Exhibit F Calculation of Affordable Ownership Price (Exhibit B of Developer Agreement) Section 25. Termination of Developer Agreement. Except for the provisions of the Developer Agreement contained in Exhibit E, effective upon the recordation of this Agreement in the official records of Marin County, California, the Developer Agreement is terminated and released as an encumbrance on the Property, and shall be of no further force or effect. The Parties agree to perform such further acts, and to execute such other or additional instruments, as may be reasonably necessary to effectuate and accomplish the intent, purpose and other provisions of this paragraph. Section 26. Relation to Marin Housing Authoritv. City and Marin Housing Authority have entered into an agreement whereby Marin Housing Authority has agreed to undertake certain activities for City, as referenced in this Agreement. City may, at its discretion, perform those duties itself or assign those duties to another entity. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. (Signatures on next page) 11 ATTEST: sther lBeirne City Clerk CITY OF SAN RAFAEL Nancy Mackle City Manager OWNER Marin Icon, L.P. By: W FR/PFM LLC, its GP Name: --cam -�— William . advm , s V ember 12 F. Mockler, its Memb r CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California , vv�_ V County of - -_ � 1 On ✓--- before,me "{ �'' C.t /--•t �} re Insajl Name and Title o1 t6e 011,,,rpersonal y appeared . {�' pUlMl ��� �� Name(sl cf Siaregsl who proved to me on the basis of satisfac ory evidence to be the person(s) whose name(s) is/aN subscribed to the within instrument and acknowledged to me that she/rNy executed the same in !%/her/fhgjr authorized capacity(ies), and that by Ridder/tNr signature(s) on the instrument the person(s), ar the entity upon behalf of which the person(s) acted, executed the instrument. f,t C I certify under PENALTY OF PERJURY under the m-= a laws of the State of California that the foregoing paragraph is true and correct. WITNESS y an d off4icial seal. n � Signature: Place Notary Seal Above Slenaheo 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: Document Date Number of Pages Signer(s) Other Than Named Above. Capacity(ies) Claimed by Signer(s) Signer's Name: �� Corporate Officer Title(s): (_ Individual (_, Partner — Limited --"General Top cf thumb here Attorney in Fact U Trustee =.1 Guardian or Conservator 0 Other: Signer Is Representing: . — Signer's Name. Corporate Officer — Title(s):___ ..�.. 10 Individual Wei. 1.111MI:: t_1 Partner — -,Limited IID General Top of thumb here F Attorney in Fact 12 Trustee a_-! Guardian or Conservator f i Other: Signer Is Representing: 2010 National Notary Association - Nat onalNotary org - 1 -800 -US Not ARY (1.800-8/6.6827) Item #5407 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of•.z,✓� J _ _. f� before J� tic:�i`kx/�On me A, O ° 6Lta-e-i, HereInsert Name nd Title of the Ofpersonally appeared Name(.^>1 ct �igner(s) who proved to me on the basis of satisfaptory evidence to be the person# whose name( is/ re 1-1 subscribed to the within instrument and acknow a ged to me that y/she/they executed the same in ROSF MONACO ARNAUDO (mss,/her/their authorized capacity(dO, and that by Commission # 1894800 Z fs/ er/their signature# on the instrument the Z Notary Public - California > personf$), or the entity upon behalf of which the z Santa Clara County person(&►) acted, executed the instrument. jf My Comm. Expires Aug 2, 2014 1 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS hand and official seal Signature Place Notary Seal Above gnahre of Notary- Publlr. 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: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signers Name: O Corporate Officer — Title(s): Li Individual t-1 Partner —1. - Limited rl General Top of !humb her- ❑ Attorney in Fact 0 Trustee U Guardian or Conservator 17 Other: S:gner Is Representing - Number of Pages: Signers Name: ._l Corporate Officer — Title(s): Individual iWeIRRI= ❑ Partner — ,r, Limited %: General Top of thumb here El Attorney in Fact D Trustee Ij Guardian or Conservator L, Other: Signer Is Representing: (91 2009 National Notary Assooation - Nationalfaotaq brg - 1.800 -US NOTARY fl -800-87G-6827) Item 05907 ACKNOWLEDGMENT State of California County of til 1 ►Z ;✓ On Q Fe 1 2 before me, -,r, t' (insert name and title of the officer) 1�personally appeared who proved to me on the basis of satisfactory evidend,&to be the persons) whose name(s)657are subscribed to the within instrument and acknowledged to m e that executed the same in Cris/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 pers on(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. Comml,sion 1602322 e ? h;otary Puo{{c California ? 'll'il) CoLn1y D q�My Cpm. Expires Sea 26.2013 3 Signature / f (Seal) ORDER NO.: 0224024278 -AN EXHIBIT A The land referred to is situated in the County of Marin, City of San Rafael, State of California, and is described as follows: Parcel A, as shown upon that certain Parcel Map filed for Record October 28, 2004 in Book 2004, of Parcel Maps, Page 268, Marin County Records. APN: 011-092-25 Page 1 of 1 EXHIBIT "B" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL UNIT AGREEMENT Project Name: Date: Address: Owner: Total Number of Units: Total Number of Very Low Income Units Total Number of Low Income Units: 1515 Lincoln Nov -12 1515 Lincoln Marin Icon,L.P. 24 0 3 Single 1 BRM, (2) Two bedroom ALLOWABLE RENT CALCULATION: Housing expense includes utility allowance from Marin Housing Very Low Income is 50% of Area Median Income, and Low Income is 60% of Area Median Income. The assumed household and unit sizes are as listed in the Agreement. Studio units- 1 person, One bedroom units -2 persons, Two bedroom units -3 persons. Three bedroom -4 persons. Actual households can exceed the assumed household size but the rental calculation will not change. The maximum qualifying tenant income is 50% of median for very low and 80% of median for low income or a lesser income as defined by the Owner. For example, using the 2012 Area Median Income for the such calculation would be as shown below. This schedule is based on the 2012 Area Median Income for Marin County as published by US Dept. of Housing & Urban Development (HUD) on 1/1/2012. The income limits are based on a percentage of Area Median Income and may not be cons -,stent with income limits published by CA Dept of Housing & Community Development. Median Very Low Low j Income Income income HH Size 100% 50% 80.00% 1 72,100 36,050 57,680 2 82,400 41,200 1 65,920 3 92,700 46,350 1 74,160 4 103,000 51,500 82,400 5 111,250 55,625 89,000 6 119,500 59,750 95,600 MAXIMUM RENT SCHEDULE - LOW INCOME Monthly rent, including utilities, may not exceed 1/12 of 30% c 80.00% of median income adjusted for household size. Annual Monthly 30% Monthly HH Size Unit size Income Income of income Utilities RENT / MO 1 studio 57,680 4,807 1,442 33 $1,409 2 1Br 65,920 5,493 1,648 44 $1,604 3 2Br 74,160 6,180 1,854 57 $1,797 4 3Br 82,400 6,867 2,060 73 $1,987 This schedule is based on the 2012 Area Median Income for Marin County as published by US Dept. of Housing & Urban Development (HUD) on 1/1/2012. The income limits are based on a percentage of Area Median Income and may not be cons -,stent with income limits published by CA Dept of Housing & Community Development. EXHIBIT "C" OCCUPANT INCOME CERTIFICATION SAN RAFAEL BELOW MARKET RATE RENTAL MONITORING PROGRAM Project Name: Lincoln Mews, 1515 Lincoln APARTMENT # APARTMENT SIZE OCCUPANT/ HOUSEHOLD NAME: last Date: MONTHLY RENT: first TOTAL HOUSEHOLD GROSS ANNUAL INCOME: (Total household income includes all wages, salaries, otc., ae reportod no grocc incomo 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 Household Member Relationship to head Age Place of Employment of household I/We the undersigned have read and answered fully, frankly and personally each of the above questions under penalty of perjury and do hereby swear they are true. Occupant - Head of Household Date: Exhibit D CERTIFICATION OF CONTINUING COMPLIANCE REDEVELOPMENT AGENCY CITY OF SAN RAFAEL MONITORING PROGRAM Project Name : Lincoln Mews Date: Address: 1515 Lincoln Avenue Owner: Marin Icon, L.P. TOTAL NUMBER OF UNITS: NUMBER OF VERY LOW INCOME UNITS: NUMBER OF LOW INCOME UNITS: NUMBER OF MODERATE INCOME UNITS: The undersigned, in accordance with the City of San Rafael BELOW MARKET RATE RENTAL AGREEMENT dated November 2012 for tho Projoct dooc horoby cortify that during tho pr000ding twol•:o (12) months, the following units were occupied in accordance with the BELOW MARKET RATE RENTAL AGREEMENT and does hereby further certify that the representation set forth herein are true and correct to the best of the undersigned's knowledge. Lower Income Unit Monthly Annual Household Resident Name No. Rent Income size Signed : Owner attach additional sheets if necessary EXHIBIT E PROVISIONS APPLICABLE TO SALE OF AFFORDABLE UNITS Definitions a) "Deed of Trust" means the deed of trust, in the form provided by Marin Housing Authority, executed by each buyer of an Affordable Unit, securing the buyer's performance under the Resale Agreement and the Note. b) "Eligible Household" means a household that has been determined by the Marin Housing Authority to be eligible to purchase an Affordable Unit pursuant to the requirements for eligibility adopted by the City and specified in Exhibit "F" attached to this Agreement. c) "Resale Agreement" means the Resale and Refinancing Restriction Agreement and Option to Purchase, in the form provided by the Marin Housinq Authority, executed by each buyer of an Affordable Unit, the City, and Marin Housing Authority. d) "Note" means the promissory note, in the form provided by the Marin Housing Authority, executed by each buyer of an Affordable Unit. Section 7. Sale of Affordable Units to Eiioible Households. Owner shall make a good faith effort to market the Affordable Units to Eligible Households. a) The Owner shall provide Marin Housing Authority and the City with written notice at least one hundred twenty (120) days before offering any Affordable Unit for sale. The notice shall include the number of bedrooms and required income level of the unit. b) The Owner agrees that the Affordable Ownership Price for the Affordable Units shall not exceed the prices set forth in Exhibit "F", unless modified by the Marin Housing Authority as described in subsections (c) and (d) below. Owner acknowledges and agrees that the Affordable Ownership Prices as shown in Exhibit "F" shall be calculated by Marin Housing Authority in its reasonable discretion in interpreting the requirements of this Agreement, and that Marin Housing Authority's calculation of the Affordable Ownership Prices shall be consistent with the methodology illustrated in Exhibit "F", shall be adjusted annually consistent with the Area Median Income determinations and shall be binding on the Owner. The Affordable Ownership Price shall be the absolute maximum price that the Owner or any other seller may receive as compensation for the sale of an Affordable Unit. Any options or upgrades shall be purchased outside of escrow and not increase the sales price of the unit. The Affordable Ownership Price does not include proration of taxes, utilities, and homeowner's association fees, nor does it include such closing costs as insurance premiums, escrow costs, transfer taxes, recording fees, document preparation cost or similar items. 13 Exhibit E CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT, RESTRICTION ON SALES PRICE, AND DECLARATION OF RESTRICTIVE COVENANTS PAGE 2 c) Recalculation of the Affordable Ownership Price shall be permitted at the time that the Owner provides written notice to Marin Housing Authority one hundred twenty (120) days prior to offering an Affordable Unit for sale if: (i) the mortgage rate shown in Exhibit "C" is different from the then -current market interest rate; (ii) Area Median Income has changed from that set forth in Exhibit T"; or (iii) the final approved homeowners association dues are different from the estimate shown in Exhibit T." d) Upon receipt of the Owner's 120 -day notice, the Affordable Ownership Price shall be recalculated by Marin Housing Authority using: (i) the most affordable available mortgage rate for a thirty (30) -year, fixed-rate mortgage as determined by Marin Housing Authority; (ii) the current Area Median Income: and (iii) tha final npprmpri hnmenwnprc association dues. Such an adjustment to the Affordable Ownership Price shall be allowed more than one time only if mutually agreed by all the Parties to this Agreement. e) Owner agrees to offer the Affordable Units for sale only to Eligible Households. Marin Housing Authority agrees to process applications and certify the eligibility of applicants as Low Income Households or Moderate Income Households. In certifying eligibility of applicants, Marin Housing Authority shall adhere to the requirements for eligibility adopted by the City and specified in Exhibit "C" of the Developer Agreement. Selection of Eligible Households falling within any of the priorities established in Exhibit "C" of the Developer Agreement shall be determined by a drawing or other equitable method mutually agreed upon by the City and Marin Housing Authority and administered by the Marin Housing Authority. Owner shall not unreasonably delay its review and acceptance or rejection of any purchase offer submitted by an applicant supplied by Marin Housing Authority. f) Within the 120 day notice period (Selling Period), the Marin Housing Authority will provide a letter describing the sales status of each affordable unit to the Owner showing the number of units sold and ready to close escrow and the Owner shall verbally report confidential sales status information to the Marin Housing Authority. 14 Exhibit E CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT, RESTRICTION ON SALES PRICE, AND DECLARATION OF RESTRICTIVE COVENANTS PAGE 3 g) In the event that Affordable Unit(s) do not close escrow on the date which is the later to occur of the following: (i) 90 days after the expiration of the 120 notice period, or (ii) 90 days after the certificate of occupancy has been issued; the Owner will, in writing, offer Affordable Units which did not close escrow for sale to the Marin Housing Authority or assignee at the Affordable Ownership Price. Within thirty (30) working days after receipt of such written notice, Marin Housing Authority shall notify the Owner in writing whether or not it will purchase the Affordable Unit at the Affordable Ownership Price or whether it has assigned the offer to the City, another public agency, a non-profit organization, or an Eligible Purchaser. If Marin Housing Authority notifies the Owner that it or its assignee will purchase the Affordable Unit, the Owner shall execute a purchase and sale agreement and other documents described in Sections 8 and 9 below, as applicable, to sell the Affordable Unit to Marin Housing Authority or its assignee at the Affordable Ownership Price. Close of escrow shall take place on the date which is the later to occur of the following: (i) thirty (30) days after the date that the purchase and sale agreement is executed, or (b) ten (10) days after Owner has done all acts and executed all documents required for close of escrow. The Owner shall convey title to the Affordable Unit at the close of escrow free and clear of any mortgage, lien, or other encumbrance. unless approved in advance in writing by the Marin Housing Authority or assignee. h) In the event that Marin Housing Authority declines to purchase the Affordable Unit or to assign the offer provided pursuant to subsection (f) of this Section within ten (10) working days after receipt of such written notice or does not close escrow on the unit within 30 days, the Affordable Unit may be sold by the Owner without restrictions as to price, and Sections 8 and 9 below will not apply to the sale of the Affordable Unit. In such event, the Owner shall pay to the City at close of escrow sixty (60%) of the difference between the sales price (less any real estate commissions and seller escrow expenses not to exceed six percent (6%) of the sales price) and the Affordable Ownership Price. The City shall pay to Marin Housing Authority a minimum of ten percent (10%) of this sum for administrative costs related to administration of the City's Affordable Housing Requirements and shall utilize the remaining amount to provide housing affordable to Very Low, Low, and Moderate Income Households. Following payment of all sums due to the City, City shall release the property from this Agreement. 15 Exhibit E CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT, RESTRICTION ON SALES PRICE, AND DECLARATION OF RESTRICTIVE COVENANTS PAGE 4 Section 8. Marin Housinq Authority Approval of Homebuver Documents. Approval of the following documents by the Marin Housing Authority shall be required prior to the offering for sale of the Affordable Units. a) Form of Purchase and Sale Agreements for the Affordable Units (to be prepared by Owner and submitted to the Marin Housing Authority). Purchase and sale agreements between Owner and Eligible Households shall include requirements that: (i) Eligible Households shall execute documents for the benefit of the City and Marin Housing Authority as described in Section 9 below; and (ii) Marin Housing Authority shall be paid a transaction fee of 1 % of the Affordable Ownership Price by the Eligible Household at close of escrow. Except for terms required to effectuate this Agreement, the Affordable Units shall be offered to Eligible Purchasers on the same terms as the Market Rate Units are offered to purchasers. b) Form of Resale Agreement, Note, Deed of Trust, Request for Notice of Default and Sale, and Borrower's Disclosure (to be prepared by the Marin Housing Authority, following Owner's 120 -day notice to Marin Housing Authority). c) The preliminary Department of Real Estate public report for the Development, including the Affordable Units (to be obtained by the Owner and submitted to the Marin Housing Authority). d) Owner's form escrow instructions (to be prepared by the Owner and submitted to the Marin Housing Authority). 16 Exhibit E CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT, RESTRICTION ON SALES PRICE, AND DECLARATION OF RESTRICTIVE COVENANTS PAGE 5 Section 9. Homebuver Documents and Securitv Instruments. Prior to the sale of each Affordable Unit, Owner shall ensure that: a) The Eligible Household, the City, and the Marin Housing Authority execute the Resale Agreement and the Notice of Affordability Restrictions in the form provided by the Marin Housing Authority. The escrow instructions shall stipulate that the Resale Agreement shall be recorded against the Affordable Unit at close of escrow on the sale to the Eligible Household; and that the Resale Agreement shall be recorded junior only to the lien of the deed of trust securing the Eligible Household's first mortgage loan, or to a second mortgage loan only if such loan is provided by a public agency which requires such subordination, or as otherwise approved in writing by the Marin Housing Authority. b) The Eligible Household signs the Note in the form provided by the Marin Housing Authority_ c) The Eligible Household signs the Deed of Trust to secure performance of the Eligible Household's covenants under the Resale Agreement and payment of the amounts due under the Note. The Deed of Trust shall be recorded against the Affordable Unit, subordinate only to the Resale Agreement and the lien of the deed of trust securing the Eligible Household's first mortgage loan or to a second mortgage loan only if such loan is provided by a public agency which requires such subordination, or as otherwise approved in writing by the Marin Housing Authority. d) A Request for Notice of Default and Sale is recorded for each deed of trust recorded at close of escrow. e) The Eligible Household signs the Borrower's Disclosure in the form provided by the Marin Housing Authority. Within five (5) days following closing of the sale of any Affordable Unit, Owner shall forward to the Marin Housing Authority copies of the buyer's and seller's settlement statement and all closing documents, including Resale Agreement, Notice of Affordability Restrictions, the original Note, Deed of Trust, Request(s) for Notice of Default and Sale, and Borrower's Disclosure executed in connection with the sale. Owner shall retain all records related to compliance with obligations under this Agreement and the Affordable Housing Requirements for a period not less than two (2) years from the date of sale of all units in the Development and make them available on five (5) business days' written notice to Marin Housing Authority or City employees or others designated by the Marin Housing Authority or City for the purposes of inspection and copying. 1f Exhibit F Affordable Sales Price Calculation Address: 1515 Lincoln Avenue Owner: Marin lcon,L.P. Attached Home with HOA Moderate Income Informational only- specific calculations will be provided @ time of project application Affordability target:1 90% 1 Eligibility limit: 120% 1 Number of bedrooms Household size (for calculation purposes) See Footnote Median income for household size (see chart below) Median income reduced to affordability target shown above Monthly income (annual income divided by 12) 33% Housing -expense -to income ratio Breakdown of monthly housing expense Property Tax (estimated @ 1.25%) Homeowners Association Dues (estimated) Mortgage Insurance (req'd for LTV over 80%-10% of mort) Mortgage Payment Total Housing Expense Financing -- assuming 30 -year, fixed-rate mortgage Rate (current prevailing rate / to be updated at completion) Term (months) Loan amount Loan -to -value ratio Purchase price Downpayment Estimated closing costs (@ 4%) Estimated cash required for downpayment plus closing costs Footnote: Assumes units are 1,500 + sq feet townhouse or duplex 3BR 2BR 1BR 4 persons 3 persons 2 persons 103,000 82,400 72,100 92,700 74,160 64,890 7,730 6,180 5,410 2,550 2,040 1,790 336 288 245 200 200 200 180 140 120 1,834 1,413 1,225 2,550 2,040 1,790 5.00% 5.00% 5.00% 360 360 360 341,600 263,100 228,200 95% 95% 95% 1 359,6001 1 276,9001 1 240,2001 18,000 13,800 12,000 14,400 11,100 9,600 32,400 24,900 21,600 2012 Sales Price -Attached 90% 11/8/2012 FY2012 Marin County I Median Family income HCD- effective 4118107 HH Size Median 120% 1 person $72,100 $86,520 2 persons $82,400 $98,880 3 persons $92,700 $111,240 4 persons $103,000 $123,600 2012 Sales Price -Attached 90% 11/8/2012