HomeMy WebLinkAboutCC Resolution 9451 (BMR Montevideo Terrace)RESOLUTION NO. 9451
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SAN RAFAEL AUTHORIZING THE EXECUTION OF
A BELOW MARKET RATE AGREEMENT
RE: MONTEVIDEO TERRACE SUBDIVISION
(Oakview School Site)
BETWEEN THE CITY OF SAN RAFAEL, THE HOUSING
AUTHORITY OF THE COUNTY OF MARIN AND
WATERFORD ASSOCIATES LLC
BE IT RESOLVED, the MAYOR and the CITY CLERK are authorized to
execute, on behalf of the City of San Rafael, a Below Market Rate Agreement,
between the City of San Rafael, the Housing Authority of the County of Marin and
Waterford Associates; of which is hereby attached and by -this reference made a part
hereof.
I, JEANNE M. LEONCI NI, Clerk of the City of San Rafael, hereby certify that
the foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of the City Council of said City held on Monday, the 18th day of September,
1995, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Phillips, Zappetini and
Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
='6; �&,'
JEM. LECityClerk
ORIGINAL a°s'
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Recording Requested by:
City of San Rafael
When Recorded Return to:
City of San Rafael
P. O. Box 151560
San Rafael, CA 94915-1560
Attention: Planning Director
THIS STAMP CONFIRMS
RECORWIC' DKTA ONLY
95-044756
SEP ? I5W
BELOW MARKET RATE HOUSING AGREEMENT
Project Name: MONTEVIDEO TERRACE
Location: Oakview School site, Montevideo Way, San Rafael, CA 94903
Developer: Waterford Associates LLC, or any successor in interest
This Agreement is made and entered into this 40 day of among the CITY OF
SAN RAFAEL, a municipal corporation (hereinafter referred to as "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 (hereinafter referred to as "Marin Housing Authority"), and
WATERFORD ASSOCIATES LLC, or any successor in interest (hereinafter referred to as "the
Developer").
A. The Developer intends to construct a residential housing development on that certain real property
situated within the corporate limits of the City, which real property is more particularly described in
Exhibit "A" attached hereto and incorporated herein.
B. The City, in accordance with the provisions of the Housing Element of its General Plan, has approved the
Developer's proposed development on condition that the Developer provide therein two (2) dwelling
units to be sold at prices which are within the means of moderate -income households.
C. Marin Housing Authority is authorized by law to participate in programs.which provide housing for
households of low and moderate income, and is by experience qualified to screen and determine
eligibility of applicants for low and moderate -income housing.
The parties hereto desire, by this Agreement, to cooperate in implementing the efforts of the Developer to
comply with the requirement that the Developer make available said dwelling units at prices which are within
the means of moderate -income households.
NOW THEREFORE, it is hereby agreed by and between the parties hereto as follows:
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 1 of 10
City of San Rafael / Marin Housing Authority 9/12/95 _
,Y J1
L The Developer agrees that two (2) dwelling units within the project approved by the City for the property
described in Exhibit "A" attached hereto will be sold to moderate -income households in accordance with -
the terms and pursuant to the procedures set forth in this Agreement. Said dwelling units are identified in
Exhibit "B" attached hereto and will be legally described in an attachment to be recorded with the final
map. Said dwelling units are hereinafter referred to as "the Units."
2. The Developer agrees that the contract sales price for the Units shall not exceed the prices set forth in
Exhibit "B" attached hereto. The contract sales price is defined as the amount paid by the Buyer to the
Developer without regard to proration of taxes, utilities, or other such items and without regard to Buyer's
payment of homeowners's association fees, insurance premiums, escrow costs, transfer taxes, recording
fees, document preparation cost or similar items.
3. The Developer agrees to offer the Units for sale only to individuals or households who have been
certified as eligible by Marin Housing Authority.
4. The Developer further agrees to give written notice to Marin Housing Authority at least one hundred and
twenty (120) days prior to estimated issuance of Certificate of Occupancy.
5. Marin Housing Authority agrees to process applications and certify eligibility of applicants as persons or
households of moderate income. An individual or a household shall be deemed to qualify as a
moderate -income applicant provided the income of such individual or household does not exceed one
hundred twenty percent (120%) of the current median income for the San Francisco Primary Metropolitan
Statistical Area (PMSA)--San Francisco, San Mateo and Marin County --as determined by the United
States Department of Housing and Urban Development ("HUD"), Office of Economic Affairs, Economic
and Market Analysis Division, with adjustments for smaller or larger households (refer to Exhibit "D"
attached hereto).
In certifying eligibility of applicants, Marin Housing Authority shall adhere to the requirements for
eligibility adopted by the City and specified in EXHIBIT "C" attached hereto. Selection of individuals or
households falling within any of the priorities established in EXHIBIT "C" shall be determined by a
drawing or other equitable method mutually agreed upon by the City and Marin Housing Authority.
Marin Housing Authority shall be paid a fee of $800 per unit to be paid by the buyer, which payment
shall be included in the buyer's closing costs through escrow.
6. In the event that any Unit remains unsold at the end of sixty (60) days from the date of issuance of a
Certificate of Occupancy by the City for the phase of development in which the subject unit is located,
the Developer shall notify Marin Housing Authority in writing of such fact. Within ten (10) working
days after receipt of such written notice, Marin Housing Authority or its assignee may notify the
Developer in writing that it will purchase such Unit. If such notice is given by Marin Housing Authority,
the Developer shall then sell such Unit to Marin Housing Authority or its assignee at the same price it
would have been available for sale to households of moderate income. As used herein, the term "sold"
shall mean the close of escrow for the sale of the Unit.
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 2 of 10
City of San Rafael / Marin Housing Authority 9/12/95
In the event that Marin Housing Authority or its assignee declines to purchase such Unit, it may be sold
by the Developer on the open market without restrictions as to price, affordability or future re -sale, and
no deed restrictions will be placed on the property. In such event, the Developer shall pay to the City
from the sale price of such Unit seventy-five percent (75%) of the difference between the net price
achieved after normal selling and closing costs and the below -market -rate sales price specified in Exhibit
"B". Said sum shall be paid to the City upon close of escrow on the sale of such Unit or, if the sale is
pursuant to a contract of sale, upon execution of such contract, which -ever shall first occur. The City
shall pay to Marin Housing Authority ten percent (10%) of this sum for Marin Housing Authority's use in
administering Below Market Rate projects including, but not limited to, on-going BMR monitoring and
future BMR re -sales. The balance of any such payments made to the City shall be retained by the City in
a special account to be used solely for activities which it deems will facilitate the provision of housing for
persons of low or moderate income.
7. Each contract conveying a Unit to a Buyer certified by Marin Housing Authority shall contain a resale
restriction and an option to purchase constituting a right of first refusal, pursuant to which the buyer
agrees that prior to selling the property, it will first be offered for sale to Marin Housing Authority or its
assignee, in writing. Said deed restrictions shall be in the form of a Resale Restriction Agreement and
Option to Purchase to be provided by Marin Housing Authority as set forth in Exhibit "E" to this
agreement, which Agreement shall be executed by the Buyer and recorded in immediate succession after
the Grant Deed conveying title to the property.
8. In the event that the development project is not constructed or in the event that the master plan for the
project is amended or revised such that the Units specified in Paragraph 1 are no longer required thereby,
this Agreement shall thereupon become void, unless one or more of the Units have ptleviously been sold
in accordance with the provisions of this Agreement, in which event the provisions of this Agreement
will continue in force with respect to the Unit or Units so sold.
9. All notices required to be given under the terms of this Agreement shall be sent by first class U.S. mail,
certified/return receipt requested, or by express courier service, addressed as follows:
To the City: City of San Rafael
P.O. Box 151560
San Rafael, CA 94915-1560
Attention: Planning Director
To Marin Housing Authority:
To the Developer:
Marin Housing Authority
30 N. San Pedro Rd., Suite 265
San Rafael, CA 94903-4129
Attention: Executive Director
Waterford Associates LLC
50 Bon Air Center, Suite 140
Greenbrae, CA 94904
Attention: Michael Smith
Any party may change the address to which notice shall be mailed to it by giving notice thereof to the
other parties by certified mail.
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 3 of 10
City of San Rafael / Marin Housing Authority 9/12/95
10. The City shall indemnify and hold harmless Marin Housing Authority and the Developer, its officers,
officials, employees and agents from and against all claims, damages, loses and expenses including
attorneys fees arising out of the performance of this agreement, cause in whole or part by any negligent
act or omission of the City, except where caused by the active negligence, sole negligence, or willful
misconduct of the Marin Housing Authority and/or Developer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above
written.
CITY OF SAN RAFAEL
f�Ll3ERT J. ��CiRO, Mays;,
ATTEST:
By:
Oi_ LE
E . �IN
ty Clerk
HOUSING AUTHORITY OF
THE COUNTY OF MARIN
ROSE, 6Pretfento=f-719-95
Board of Comnissi rs
ATTEST:
BIZ I' ES'
By:
6 T M= SCHODIR
DEVEA:WATE S IATES LLC
B
Attachments: Exhibit "A" --Legal Description of Property
Exhibit "B" --Schedule of BMR Units and Sales Prices
Exhibit "C" --Eligibility Requirements and Priorities
Exhibit "D" --Marin County FY1995 Median Family Income Schedule
Exhibit "E" --Resale Restriction Agreement and Option to Purchase
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 4 of 10
City of San Rafael / Marin Housing Authority 9/12/95
CALIFORNIA ALL-PURPOSE-.CKNOWLEDGMENT
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State of California
County of Marin
On September 21, 1995
DATE
personally appeared
before me, Kay A. McClure.
No. 5907
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Notary Public
NAME, TITLE OF OFFICER - E.G., -JANE DOE, NOTARY PUBLIC -
Janet Miller Schoder, Executive Director
NAME(S) OF SIGNER(S)
E personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence
to be the person(" whose name is/axe
subscribed to the within instrument and ac-
knowledged to me that beisheMM, executed
the same in /her/jk&tt authorized
capacity(;, and that by bij/her/ftoik
signature( on the instrument the person(,
or the entity upon behalf of which the
person(10 acted, executed the instrument. ;
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Kay A. McClure
Cc:nm. #1004871 t
Qt� E:. WITNESS my hand and official seal.
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NOTARY PUBLIC - CALIFORNIA % 1
MARINI COUNTY 0 (J
Comm. Expires SOM. 22. 1997 - Irl /M. 0 l
v SIG ATURE OF OTAAIrt
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OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER
Below Market Rate Housing Agreement
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) ❑ LIMITED t
t
❑ GENERAL four t
❑ ATTORNEY-IN-FACT NUMBER OF PAGES i
❑ TRUSTEE(S) t
❑ GUARDIAN/CONSERVATOR
❑ OTHER: September 12, 1995
DATE OF DOCUMENT t
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SIGNER IS REPRESENTING: Developer: Waterford Associates LLC t
1
NAME OF PERSON(S) OR ENTITY(IES) Annette Rose, Albert Boro, Jeanne Leonni
Housing Authority of the County of Marin SIGNER(S) OTHER THAN NAMED ABOVE
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01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184
STATE OF CALIFORNIA )
ss.
COUNTY OF MARIN )
On September 10 , 1995, before me, the undersigned, a Notary Public for the
state, personally appeared LYN SCHOLZ, personally known to me, or proved to me on the
basis of satisfactory evidence, to be the person whose name is subscribed to the within
instrument, as a witness thereto, who, being by me duly sworn, deposes and says that she
was present and saw ANNETTE ROSE, the same person described in and whose name is
subscribed to the within and annexed instrument as a party thereto, execute the same, and
that said affiant subscribed her name to the within instrument as a witness at the request of
ANNETTE ROSE.
WITNESS my hand and official seal.
JENNIFER WALTER
COMM. # 980282 ?
Notary Public — California `s
` SONOMA COUNTY
q My Comm. Expires JAN 22, 1997
Ngo ARY PUBLIC in and for said
County and Site
MAIMMIAVAM
Project Name: OAKVIEW SUBDIVISION
Location: Montevido Way, San Rafael, CA 94903 '-
Developer: Waterford Associates LLC, or any successor in interest ;
i
DESCRIPTION:
All that certain Real Property situated in the City of San Rafael, State of California, described as follows:
BEGINNING at the most Southerly point on the centerline of Lucas Park Drive as said
L
point IS 5uvo+tl upon tnat certain map entitled, "Map of Sana Rafael Park, Unit One, San
Ra-fael, Marin Ccunt.,, California", filed for record ,lune 4, 1965 in Book 13 of ;daps at
Page 17, Marin County=eccrds; thence South 260 191 4511 West 225.200 fear- and South 630
401 1511 Eaez 279.00-o feet to the true urrin' ir.i. v z. of lana to be
L point of h..�_ ..� of talc parcel
fIPTP inn f�AcnTlh�/'1 •a !-s �f . L'a ro�l�r r
.., sal.. trLL2 pl _t_t begirming being the most ._s__ _j _o=er of Lot
as Si ow -P_ upo that cert�i : Map a:atitled, "Map of San Rafael Park, Gait Two, San
Rafael, Marin County, California", filed for record August 17, 1965 in Book li of gaps.
at page 26, Marin County Records , thence from said rp+ nt c; uegj--J , S,o 1 h 73
41' 37'1 Eilst Gr1.356 Iee_; thence North 490 571 East 102.000 feet; thence along a curve
to the right having a radius of 472.00 feet whose center beaxs South 490 571 West
having a central angle of 130 201, a distance of 110.072 feet; thence South 260 43,
East 132.651 feet; thence along a'curve to the right having a radius of 1173.00 feet
whose center bears South 630 171 West having a central angle of 230 421 559, a distance
of 485.516 feet; thence South 490 211 West 532.625 feet to the exterior boundary of
that certain subdivision entitled, "Map cf San Rafael Park, Unit Two, referred to
above; thence along said exterior boundary North 340 361 west 716.40 feet, North 130
251 1111 West 251.59 feet and North 440 48' East 353.63 feet to the true point of
beginning.
SUBDIVISION—Waterford Associates LLC / Page 5 of
Cityof San Rafael / Marin Housing Authority _ :_ 7/21/95_
Project Name:
Location:
Developer:
Total Units:
Total BMR Units:
EXHIBIT "B"
MONTEVIDEO TERRACE
Oakview School site, Montevideo Way, San Rafael, CA 94903
Waterford Associates LLC, or any successor in interest
21
2
SCHEDULE OF BMR UNITS AND SALES PRICES,
No. of Units Unit Tvne Unit Size Income Ranee Unit No. or Address Sales Price
2 313R/213A .... sf Moderate -Income Lot 10a & l0b $148,800'j
1
Family sizes and incomes used to establish the above sales price:
Income Range Unit Tyne Household Size % of Median Income Household Income
Moderate -Income 313R/213A Four Persons 90% of Median $52,900 L
Loan rate and term and debt -to -income ratio used to establish the above sales prices:
Mortgage Rate/Tenn:
(Rate includes PMI)
Loan -to -Value Ratio:
Percentage of Gross Monthly Income for
Mortgage Payment (Principal and Interest):
MONTEVIDEO TERRACE --Waterford Associates LLC /
City of San Rafael / Marin Housing Authority
9.25% L / 30 -year, fixed-rate
90%
25%
Page 6 of 10
9/12/95
L Recalculation of the above sales prices shall be permitted at the time of receipt by Marin Housing
Authority of the Developer's written notice one hundred twenty (120) days prior to the issuance of
Certificates of Occupancy for the Units if either: (I) it is determined that the above -stated mortgage rate is
different from the then -current market interest rate; or, (ii) it is determined that the median income for the
San Francisco PMSA as determined by the U.S. Department of H.U.D. has changed from that set forth in
Exhibit "D" attached hereto. Upon receipt of the Developer's 120 -day notice, the sales price shall be
recalculated by Marin Housing Authority using the most affordable available mortgage rate for a 30 -year,
fixed-rate mortgage as determined by Marin Housing Authority and using the most recent median income
for the San Francisco PMSA as determined by H.U.D.. Such an adjustment to the sales price shall be
allowed more than one time only if mutually agreed by all the parties to this Agreement.
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 7 of 10
City of San Rafael / Marin Housing Authority 9/12/95
EXHIBIT "C"
Project Name: MONTEVIDEO TERRACE
Location: Oakview School site, Montevideo Way, San Rafael, CA 94903
Developer: Waterford Associates LLC, or any successor in interest
Elieibilitv Requirements
In determining and certifying eligibility of applicants for the subject project, Marin Housing Authority shall
adhere to the following criteria:
The applicant's total household annual income may not exceed 120% of the current median income for
the San Francisco PMSA as determined by the U.S. Department of Housing and Urban Development
(HUD), and as adjusted for household size, in order to qualify as "moderate -income."
2. Tile total value of the applicant household's assets may not exceed 75% of the sales Brice of the unit.
The applicant must qualify as a "First-time Homebuyer" --defined as not having previously owned a
principal residence.
Priorities for the Drawine
In selecting prospective purchasers from among all eligible applicants, a drawing shall be conducted. The City
of San Rafael has determined that the following priorities shall be employed in conducting the drawing to
select prospective purchasers. All names shall be drawn from the group of applicants falling within the first
priority before drawing names from the second and subsequent priority groups.
First priority in the drawing for the units shall be given to all permanent, full-time employees of the City
of San Rafael.
Second priority in the drawing shall be given to all other applicants.
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 8 of 10
City of San Rafael / Marin Housing Authority 9/12/95
EXHIBIT "D"
1•larin Countv FY 1995 Median Household Income Schedule.
Effcctivc January 18, 1995
Household i --------------------------Low Incane------------------------ r --------------
Size I
50% 60% 65% 70% 75% SO% 90%
MAR N
HOUSING
M.1-; rro„s,ng 61Ne 4ttowat'le
311 V San Pedro Road
Pint 011ire Hut �a?
S.m R.jfel California 114013
JIB
i17A\141i/a72-:1M
--------,Moderate Income --------1
95% Median 120%
1 20,600
24,700
26,750
28,800
30,850
32,950
37,050
39,100
41,150
49,400
2 23,500
28,200
30,600
32,950
35,300
37,650
42,350
44,700
47,050
56,450
3 26,450
31,750
34,400
37,050
39,700
42,350
47,650
50,250
52,900
63,500
4 29,4001
35,300
38,200
41,150
44,100
47,050
52,900
55,850 (
58,800
) 70,550
5 31,750
38,100
41,300
44,450
47,650
50,800
57,150
60,350
63,500
76,200
6 34,100
40,950
44,350
47,750
51,150
54,550
61,400
64,800
68,200
81,850
7 36,450
43,750
47,400
51,050
54,700
58,350
65,600
69,250
72,900
87,500
8 38,800
46,550
50,450
54,350
58,200
62,100
69,850
73,750
77,600
93,150
This median income schedule is based on the FY 1995 median income for the San Francisco PMSA (Primary Metropolitan Statistical
Area), which comprises San Francisco, San Mateo and Marin Counties. The median income for a four -person houschold is
determined by the Department of Housing and Urban Development ("HUD"), Office of Economic Affairs, Economic and Market
Analysis Division (telephone 415-556-5241) and is adjusted for household size in accordance with HUD standard adjustment factors.
The current median income became effective on 01-18-95. All figures are rounded to the nearest $50.
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 9 of 10
City of San Rafael / Marin Housing Authority 9/12/95
EXHIBIT "E"
Resale Restriction Agreement and Option to Purchase
MONTEVIDEO TERRACE --Waterford Associates LLC / Page 10 of 10
City of San Rafael / Marin Housing Authority 9/12/95
Recording Requested by:
Marin Housing Authority
When Recorded Return to:
Marin Housing Authority
P.O. Box 4282
San Rafael, CA 94913-4282
Attn: BMR Program
RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE
Owner(s):
Property Address:
Name of Development:
Local Jurisdiction:
Purchase Price:
Date of Purchase:
RECITALS
This Resale Restriction Agreement and Option to Purchase
("Agreement") is entered into as of the day of ,
19 , by and between the Housing Authority of the County of
Marin (the "Authority") and ("Owner")
regarding certain improved real property located at
, California (the "Premises").
A. The Premises are described more fully on Exhibit A
attached hereto and incorporated herein by reference and are
subject to the terms and conditions set forth in this Agreement.
B. The Premises are being made available for purchase by
an eligible moderate -income purchaser at a below-market purchase
price pursuant to the Below Market Rate Home Ownership Program
("Program") administered by the Authority on behalf of the above-
named Local Jurisdiction ("City").
Rev. 1/94
C. Owner is an eligible moderate -income purchaser under
the Program (defined below), intends to live in the Premises as
an owner -occupant and agrees to maintain the Premises as Owner's
principal residence.
D. In order to maintain and preserve the Premises as
housing affordable to eligible moderate -income purchasers, it is
necessary to restrict the use and resale price of the Premises by
the occupancy and resale controls. Such controls prevent initial
and subsequent purchasers from using the property for purposes
incompatible with the Program and realizing unwarranted gains
from sales of the Premises at unrestricted prices. The terms and
conditions of this Agreement provide the necessary occupancy and
resale controls to ensure that the Premises are used, maintained
and preserved as housing affordable to eligible moderate -income
purchasers.
E. The Premises subject to occupancy and resale controls
constitute a valuable community resource by providing decent,
safe and sanitary housing to moderate -income purchasers who
otherwise would be unable to afford such housing. To protect and
preserve this resource it is necessary, proper and in the public
interest for the Authority to administer the occupancy and resale
controls by means of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE SUBSTANTIAL ECONOMIC
BENEFITS INURING TO OWNER AND THE PUBLIC PURPOSES TO BE ACHIEVED
UNDER THE PROGRAM, OWNER HEREBY GRANTS TO THE AUTHORITY THIS
OPTION ON THE FOLLOWING TERMS AND CONDITIONS.
1. Program Conditions.
Owner agrees and acknowledges that the Authority's
acceptance of Owner's participation in the Program and purchase
of the Premises is conditioned upon Owner's continuing occupancy
of the Premises. Owner shall use and maintain the Premises as
Owner's principal residence. Without limiting the generality of
the foregoing, any absence from the Premises by Owner for a
period of sixty or more consecutive days shall be deemed an
abandonment of the Premises as the principal residence of Owner,
in violation of the conditions of this paragraph. Upon request
of the Authority, Owner shall certify Owner's continuing
compliance with Program conditions and provide such documents and
other evidence as may be requested to verify Owner's compliance.
2. Grant of Option to Purchase.
Owner hereby grants and gives to the Authority a right to
purchase all of Owner's right, title and interest in and to the
Premises upon the occurrence of events specified in this
Agreement ("Option"), subject to the terms and conditions
contained herein.
Rev. 1/94 2
3. Assignment of the Opjion.
The Authority may assign the Option to another government
entity or to a moderate -income purchaser who meets the
eligibility qualifications established by the Authority under the
Program. The Authority's assignment of the Option shall not
extend any time limits contained herein with respect to the
exercise period of the Option or the period within which the
Premises must be purchased. As used in this Agreement, the term
"Authority" shall mean the Authority and any assignee to which it
has assigned the Option under this paragraph.
4. Events Giving Rise to Right to Exercise Opjion.
The Authority shall have the right to exercise its Option
upon the occurrence of any of the following events (an "Option
Event"):
a. Receipt of a Notice of Intent to Transfer (defined in
paragraph 5 below);
b. Any actual, attempted or pending sale, conveyance,
transfer, lease or other attempted disposition of the Premises or
of any estate or interest therein, except as provided in
paragraph 15 below;
C. Any actual, attempted or pending encumbrance of the
Premises, including without limitation by way of mortgage or deed
of trust, or by judgment, mechanics, tax or other lien, except as
provided in paragraph 16 below;
d. Recordation of a notice of default and/or notice of sale
pursuant to California Civil Code section 2924 (or successor
provisions) under any deed of trust or mortgage with a power of
sale encumbering the Premises;
e. Commencement of a judicial foreclosure proceeding
regarding the Premises;
f. Execution by Owner of any deed in lieu of foreclosure
transferring ownership of the Premises; and
g. Commencement of a proceeding or action in bankruptcy,
whether voluntary or involuntary, pursuant to Title 11 of the
United States Code or other bankruptcy statute, or any other
insolvency, reorganization, arrangement, assignment for the
benefit of creditors, receivership or trusteeship, concerning the
Owner.
Rev. 1/94 3
h. Any violation by Owner of the conditions set forth in
paragraph 1 above.
5. Method of Exercising the action.
a. Notice of Intent to Transfer. If Owner desires to sell,
convey, transfer, lease, encumber or otherwise dispose of the
Premises or of any estate or interest therein, Owner shall notify
Authority in writing to that effect (the "Notice of Intent to
Transfer"). The Notice of Intent to Transfer shall also state
the street address of the Premises, Owner's full name or names,
the address and telephone number at which Owner shall be
contacted if not at the Premises, and shall be delivered
personally or deposited in the United States mail, postage
prepaid, first class, certified -return receipt requested,
addressed to the Housing Authority of the County of Marin,
P.O. Box 4282, San Rafael, CA 94913, Attention: Executive
Director. The Notice of Intent to Transfer shall be in
substantially the form attached hereto and incorporated herein as
Exhibit B.
b. Notice of Exercise. Upon the occurrence of any Option
Event, the Authority may exercise its Option by delivering notice
to Owner that it will exercise such Option pursuant to the terms
of this Agreement ("Notice of Exercise"). The Notice of Exercise
may be in the form attached hereto and incorporated herein as
Exhibit C, or in such other form as the Authority may from time
to time adopt. The Notice of Exercise shall be delivered by
deposit in the United States mail, postage prepaid, first class,
addressed to Owner at the Premises, or at such other address as
may be indicated on the Notice of Intent to Transfer, and
delivery shall be deemed effective on the date of deposit. If
the Option Event relates to the potential foreclosure of a
mortgage under paragraphs 4d, a or f, then the Authority shall
also deliver the Notice of Exercise to the mortgagee or
beneficiary under such mortgage, at such mortgagee's or
beneficiary's address of record in the Office of the Recorder of
the County of Marin.
c. Notice of Consent to Transfer. If the Authority does
not exercise the Option, it may give its consent to the
occurrence of the Option Event ("Consent to Transfer"), which
consent shall be conditioned upon the proposed transferee's or
encumbrancer's assumption of Owner's duties and obligations under
this Agreement in writing, or execution of an agreement
substantially similar to this Agreement, within thirty (30) days
after the Consent to Transfer has been delivered to Owner. If
the proposed transferee or encumbrancer fails to assume this
Agreement or execute and deliver a substantially similar
agreement to the Authority within the thirty (30) day period,
then the Consent to Transfer shall expire and the Authority may
exercise the Option as if no Consent to Transfer had been
Rev. 1/94 4
delivered.
d. Time Period for Notice. The Authority must deliver a
Consent to Transfer, if applicable, not later than sixty (60)
days after the date that it receives notification of an Option
Event. The Authority must deliver a Notice of Exercise, if
applicable, on such date which is the later to occur of the
following dates: (1) sixty (60) days after the date that the
Authority receives notification of an Option Event or (2) fifteen
(15) days after a Consent to Transfer has expired. For purposes
of computing commencement of the delivery periods, the Authority
shall be deemed to have notification of an Option Event on the
date that it actually receives a written Notice of Intent to
Transfer, notice of default, summons and complaint or other
pleading, or other writing specifically stating that an Option
Event has occurred. The Authority shall have no obligation to
deliver a Notice of Exercise or Consent to Transfer, and the
applicable time period for exercise of the Option shall not
commence to run, unless and until it has received notification of
an Option Event in the manner specified in this subparagraph. If
there is a stay or injunction imposed by court order precluding
the Authority from delivering its Consent to Transfer or
exercising the Option within the applicable time period, then the
running of such period shall cease until such time as the stay is
lifted or injunction dissolved and the Authority has been given
written notice thereof, at which time the period for delivery of
a Consent to Transfer or exercise of the Option shall again begin
to run.
e. Notice of Abandonment. If the Authority fails to
deliver a Notice of Exercise or Consent to Transfer within the
above -stated time periods, then the Option shall terminate and
have no further force and effect. Thereafter, upon request by
Owner, the Authority shall cause to be filed for recordation in
the Office of the Recorder of the County of Marin a notice of
abandonment, which shall declare that the provisions of the
Option are no longer applicable to the Premises. If -the
Authority fails to record a notice of abandonment, the sole
remedy of Owner shall be to obtain a judicial order instructing
such a recordation, and Owner shall have no right to damages
against the Authority for failure to record such notice promptly.
6. Right to Reinstatement.
If the Option Event is the recordation of a notice of
default, then the Authority shall be deemed to be Owner's
successor in interest under California Civil Code section 2924c
(or successor sections) solely for purposes of reinstatement of
any mortgage on the Premises that has led to the recordation of
the notice of default. As Owner's deemed successor in interest,
the Authority shall be entitled to pay all amounts of principal,
interest, taxes, assessments, insurance premiums, advances,
Rev. 1/94 5
costs, attorneys' fees and expenses required to cure the default.
If the Authority exercises the Option, then any and all amounts
paid by the Authority pursuant to this paragraph shall be treated
as Adjustments to the Resale Price for the Premises, as defined
in paragraph 11, below.
7." Inspection of Premises.
After delivering a Notice of Exercise, the Authority shall
be entitled to inspect the Premises one or more times prior to
the close of escrow to determine the amount of any Adjustments to
the Resale Price. Before inspecting the Premises,othe Authority
shall give Owner not less than forty-eight (48) hours written
notice of the date, time and expected duration of the inspection.
The inspection shall be conducted between the hours of 9:00 a.m.
and 5:00 p.m., Monday through Friday, excluding court holidays,
unless another date and time is mutually agreed to by the
parties. Owner shall make the Premises available for inspection
on the date and at the time specified in the Authority's request
for inspection.
8. Escrow.
Promptly after delivering a Notice of Exercise, the
Authority shall open an escrow account for its purchase of the
Premises. Close of escrow shall take place on such date which is
the later to occur of the following: (a) sixty (60) days after a
Notice of Exercise has been delivered, or (b) ten (10) days after
Owner has done all acts and executed all documents required for
close of escrow. Prior to the close of escrow, the Authority
shall deposit the Resale Price as defined in paragraph 10 below,
plus or minus any Adjustments as defined in paragraph 11 below.
Closing costs and title insurance shall be paid pursuant to the
custom and practice in the County of Marin at the time of the
opening of escrow, or as may be provided otherwise by mutual
agreement. Owner agrees to do all acts and execute all documents
necessary to enable the close of escrow and transfer of the
Premises to the Authority.
9. Proceeds of Escrow; Removal of Exceptions to Title,.
Prior to close of escrow, Owner shall cause the removal of
all exceptions to title to the Premises that were recorded after
the date of this Agreement. All amounts deposited into escrow by
the Authority shall be applied first to the payment of any and
all liens and encumbrances recorded against the Premises, and
thereafter to the payment of escrow fees and closing costs. Any
amounts remaining after the amounts deposited into escrow by the
Authority have been so applied shall be paid to Owner upon the
close of escrow. If the amounts deposited into escrow by the
Authority are insufficient to satisfy all liens and encumbrances
recorded against the Premises, then Owner shall deposit into
Rev. 1/94 6
escrow such additional sums as may be required to remove said
liens and encumbrances. In the event that the Authority agrees
to proceed with close of escrow prior to the date that Owner has
caused all exceptions to title recorded after the date of this
Option to be removed, then Owner shall indemnify Authority from
any and all costs, expenses or liabilities (including attorneys'
fees) incurred or suffered by Authority that relate to such
exceptions and their removal as exceptions to title to the
Premises.
10. Resale Price.
Prior to adjustment pursuant to paragraph 11, the resale
price of the Premises shall be the lowest of ("Resale Price"):
a. Median Income. The original price paid by Owner for
acquisition of the Premises pursuant to the Program ("Base
Price") increased (but not decreased) by an amount, if any, equal
to the Base Price multiplied by the percentage increase in the
median household income for the San Francisco Primary
Metropolitan Statistical Area (PMSA)--San Francisco, San Mateo
and Marin Counties --published by the Department of Housing and
Urban Development, Office of Economic Affairs, Economic and
Market Analysis Division ("Median Income") between the date of
this Agreement and the date that the Authority receives
notification of an Option Event.
b. Index Price. The Base Price increased (but not
decreased) by an amount, if any, equal to the Base Price
multiplied by the percentage increase in the Consumer Price Index
for All Urban Consumers for the San Francisco Bay Area published
by the U.S. Department of Labor, Bureau of Labor Statistics
("Index") between the date of this Agreement and the date that
the Authority receives notification of an Option Event.
C. Fair Market Value. The fair market value of the
Premises as determined by an appraiser selected and paid for by
Owner and approved in writing by the Authority.
d. Resale Price Worksheet. To compute the Resale Price,
the Authority may use the Resale Price Worksheet attached as
Exhibit D hereto, or such other form as the Authority may from
time to time adopt.
11. Adjustments to Resale Price,.
The Resale Price shall be adjusted by the following
("Adjustments"):
a. Capital Improvements. An increase for capital
improvements made to the Premises by Owner provided that the
amount of said improvements had been previously accepted in
Rev. 1/94 7
writing by the Authority after original written documentation of
the cost was provided to the Authority for verification. The
amount of the Adjustment shall equal the original cost of any
capital improvements depreciated in a straight-line basis based
upon the estimated useful life of the improvement stated in the
Authority's prior written acceptance of said improvement.
b. Damaaes. A decrease by the amount necessary to repair
damages to the Premises, if any, and to place the Premises into
saleable condition as reasonably determined by the Authority,
including amounts attributed to cleaning, painting, replacing
worn carpeting and draperies, making necessary structural,
mechanical, electrical and plumbing repairs and repairing or
replacing built-in appliances and fixtures.
C. Advances by Authority. A decrease in an amount equal
to the sum of all costs advanced by the Authority for the payment
of mortgages, taxes, assessments, insurance premiums, homeowner's
fees and/or associated late fees, costs, interest, attorneys'
fees, pest inspections, resale inspections and other expenses
related to the Premises, which Owner has failed to pay or has
permitted to become delinquent.
12. Priority and Effectiveness of the Option.
a. Recordation. This Agreement shall be filed for
recordation in the Office of the Recorder of the County of Marin
prior to any sale, conveyance, transfer or other disposition of
the Premises, or of any estate or interest therein, by Owner.
The Option shall have priority over any subsequent sale,
conveyance, transfer, lease or other disposition or encumbrance
of the Premises, or of any estate or interest therein. Except as
otherwise provided in paragraph 13a, the exercise of the Option
by the Authority at any time and from time to time shall not
extinguish the Option or cause a merger of the Option into any
estate or other interest in the Premises, and the Option shall
continue to exist and be effective with respect to the Premises
against any subsequent owner in accordance with the terms and
conditions hereof.
b. Request for Notice of Default,. The Authority shall file
a Request for Notice of Default for recordation in the Office of
the Recorder of the County of Marin promptly upon execution of
this Agreement (see Exhibit E).
13. Survival of Option Upon Transfer.
a. In General. The Authority's rights to exercise the
Option shall survive any transfer of the Premises by Owner. The
Option may be exercised against the Premises whether owned,
possessed or occupied by (i) an eligible moderate -income
purchaser, (ii) any successor, transferee, assignee, heir,
Rev. 1/94 8
executor, or administrator of an eligible moderate -income
purchaser, including a debtor-in-possession, debtor or trustee
pursuant to Title 11 of the United States Code, or (iii) any
person owning, possessing or occupying the Premises who does not
meet the eligibility qualifications established by the Authority
under the Program (collectively all referred to and defined
herein as "Owner"). Notwithstanding the foregoing, the Option
shall not survive (i) the sale and transfer of the Premises to a
third party purchaser pursuant to a judicial or non -judicial
foreclosure or a deed -in -lieu of foreclosure under a power of
sale contained in a mortgage or deed of trust recorded against
the Premises in the Office of the Recorder of the County of Marin
on or prior to the date of recordation of this Agreement,
provided that the Authority has received timely notice of such
Option event and has failed to either reinstate said mortgage or
deed of trust or exercise its Option, or (ii) the recording of
Owner's conveyance of the Premises to the Authority, or its
assignee, provided the conveyance is in accordance with the terms
of this Agreement.
b. HUD Insured Mortqaqes. If Owner has acquired the
Premises by a mortgage insured by the Secretary of the United
States Department of Housing and Urban Development, and a notice
of default has been recorded pursuant to California Civil Code
section 2924 (or successor provisions), this Option shall
automatically terminate if title to the Premises is transferred
by foreclosure or deed -in -lieu of foreclosure, or if the insured
mortgage is assigned to the Secretary.
14. voidable Transfers.
As long as the Option has not been abandoned pursuant to
paragraph 5e, any actual or attempted sale, conveyance, transfer
or other disposition of the Premises, or of any estate or
interest therein, in violation of the terms and conditions of
this Option, shall be voidable at the election of the Authority.
15. Permitted Transfers.
The following transfers of title to the Premises, or of any
estate or interest therein ("Permitted Transfers"), will not
authorize the exercise of this Option: a good -faith transfer by
gift, devise or inheritance to Owner's spouse or issue; a taking
of title by a surviving joint tenant; a court-ordered transfer of
title to a spouse as part of a divorce or dissolution proceeding;
or an acquisition of title, or of any interest therein, in
conjunction with marriage. Notwithstanding any Permitted
Transfer, the Option shall remain effective with respect to the
Premises.
16. Permitted Encumbrances.
This Option shall not become exercisable as the result of
Rev. 1/94 9
Owner's encumbering the Premises for the purpose of securing
financing to purchase the Premises pursuant to the Program, or to
refinance existing indebtedness incurred to purchase the Premises
pursuant to the Program, in an amount not to exceed the
outstanding principal amount of such existing indebtedness.
17. Obligations of Owner After Option Abandonment.
If the Authority records a notice of abandonment of the
Option, then the Premises may be sold by Owner to a third party
without restriction as to price. Upon such sale, Owner shall pay
to Authority an amount equal to eighty-five percent (85%) of the
difference between (a) the actual sales price net of reasonable
and customary real estate commissions paid (such commissions not
to exceed six percent (6%) of the actual sales price), and (b)
the Resale Price plus Adjustments. This amount shall be paid to
the Authority upon close of escrow on the sale of the Premises,
or upon execution of a contract of sale, whichever shall first
occur. Owner shall not receive any proceeds from the sale unless
and until the Authority has been paid in full the amount
determined pursuant to this paragraph.
18. Limits on Liabilitv.
In no event shall the Authority become liable or obligated
in any manner to Owner by reason of the assignment of the Option,
nor shall the Authority be in any way liable or obligated to
Owner for any failure of the Authority's assignee to consummate a
purchase of the Premises or to comply with the terms of this
Option, or any escrow instructions or agreement for the purchase
of the Premises.
19. Insurance Proceeds and Condemnation Award.
In the event the Premises are destroyed and insurance
proceeds are distributed to Owner instead of being used to
rebuild the premises, or in the event of condemnation, if the
proceeds thereof are distributed to Owner, any surplus of
proceeds remaining after payment of the encumbrances of the
premises shall be distributed as follows: that portion of the
surplus up to, but not to exceed the net amount that Owner would
have received pursuant to paragraph 9 had the Authority exercised
its Option on the date of the destruction or condemnation
valuation date shall be distributed to Owner, and the balance of
such surplus, if any, shall be distributed to the Authority.
20. Term of OpIlion.
The restrictions contained herein shall continue for a
period of thirty (30) years from the date that this Agreement is
filed for record in the Office of the Recorder of the County of
Marin.
Rev. 1/94
M
21. Notices.
Except as otherwise specified in this Agreement, all notices
required to be sent pursuant to this Agreement shall be made by
personal delivery or by deposit in the United States mail, first
class postage prepaid, and shall be deemed to have been delivered
and received on the date of personal delivery or five (5) days
after deposit in the mail, if sent to the following addresses:
AUTHORITY:
X17011:8
Housing Authority of the County of Marin
Post Office Box 4282
San Rafael, California 94913
Attn: Executive Director and BMR Program
at the address of the Premises
The addresses above may be changed by notice given pursuant to
this section.
22. Attorneys' fees.
If either party 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.
23. Specific Performance.
Owner acknowledges that any breach in Owner's performance
of
Owner's obligations under this Agreement or in the transfer of
the Premises to the Authority shall cause irreparable harm to
the
Authority. Owner agrees that the Authority is entitled to
equitable relief in the form of specific performance upon its
exercise of the Option, and that an award of damages shall not
be
adequate to compensate the Authority for Owner's failure to
perform according to the terms of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to
be executed this day of , 19_.
OWNER(S):
Rev. 1/94 11
STATE OF CALIFORNIA )
COUNTY OF MARIN )
On
before
me, personally appeared
personally
known to me OR proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Signature of Notary
Rev. 1/94 12
CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code §27281)
This is to certify that the interest in real property conveyed by
the Resale Restriction Agreement and Option to Purchase dated
from
to the Housing Authority of the County of Marin, a political
corporation and/or governmental agency, is hereby accepted by the
undersigned officer or agent on behalf of the Housing Authority
of the County of Marin pursuant to authority conferred by
resolution #10-81, dated 5/19/81; and the grantee consents to
recordation thereof by its duly authorized officer.
Dated:
by
JANET MILLER SCHODER, Executive Director
Housing Authority of the County of Marin
Rev. 1/94 13
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EXHIBIT A
Legal Description
ATTENTION:
TO BE INSERTED PRIOR TO CLOSING
Exhibit A, page 1 of 1
EXHIBIT B
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
To: Housing Authority of the County of Marin
Post Office Box 4282
San Rafael, California 94913
Date:
Re: Notice of Intent to Transfer
The undersigned Owner(s), ,
hereby gives notice of his/her inte to transfer roperty
located at( e "Premises"). Owner may
be contacted at the Premises or a�the llowing Odress:
Owner's daytime telephon numberN
The proposed transfer o the
person(s):
Name:
Address:
Telephone)
The propos
ra
as e
wises is to the following
ansfer is: (check one)
cumbrance
L- =.L
Specify:
•nR_
Signature
Exhibit B, page 1 of 1
EXHIBIT C
To:
Owner or Transferee
Re: Notice of Exercise
Date:
The Housing Authority of the County of Marin uthory")
hereby gives notice that it is exercising its opti'on p chase
the real property located at e
option has been granted to the Authorit ursuant to the Resale
Restriction Agreement and Option to Purch e between Owner and
the Authority dated ® and corded
option to purchase the real pr
An escrow for the purchase wil
Title Company of Marin. i
by
Its Au
Vtho y had assigned its
.]
st American
ity of the County of Marin
epresentative
S* A* M* P* L* E
Exhibit C, page 1 of 1
MARtN
HOUSING
Abik ay 11nurMg More AllnrrinAlr
31) N. Sm Pedro Riad
Poa Oflice Mix 42112
Nin Rafael Cnlifiriia 94913
415/472-4030
WAX) 41 5/472-218(1
liaeculive Direclnr
Janet Miller Schomer
lkpwy Nrcclir
Michael 1). Kelleher
EXHIBIT "D"
BMR RE -SALE PRICE WORKSHEET
Date:
(lame:
Address:
Purchase Price:
Date of Purchase:
Months Owned:
MO.
Z / annum
% / annum
r - f
C. FAIR MARKET VALUE
The fair market value, if unrestricted by the DMR Decd Restrictions, is estimated to be in excess of
the above DMR Re -Sale Price calculations, and thus would not govern.
AS OF THIS DATE, THE BMR RE -SALE PRICE IS BASED ON
Exhibit D, page 1 of 1
lJIUUl IVU.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
EXHIBIT "E"
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
Request For Notice Under Section 2924b Civil Code
In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of Default and a copy of any
Notice of Sale under the Deed of Trust recorded as instrument No.
on 19 , in Book Page Official
Records of . County, California, and describing land therein as
executed by as Trustor,
in which is named as
Beneficiary, and as Trustee,
be mailed to
at
Number and Street
City and Slate
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TOTH E
ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A NEW REQUEST MUST
BE RECORDED.
I
STATE OF CALIFORNIA hti.
COUNTY OF
On
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before me, the undersigned, a Notary Public in and for said State, personally
appeared
Personally known to me (or proved to me on the basis of satisfactory evidence) to
be the person(s) whose name(s) is/are subscribed to the within Instrument and
acknowledged to me that he/she/they executed the same.
WITNESS my hand and official seal.
Exhibit E, page 1 of 1
Signature (This area for official notarial seal)
1168 (Rev. 1/87)
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State of CALIFORNIA
County of MARI N
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