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HomeMy WebLinkAboutCC Resolution 9147 (Boyd Court Condominiums)RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL APPROVING THE ASSIGNMENT TO THE AGENCY OF AN AGREEMENT REGARDING BETWEEN THE CITY, THE SAN RAFAEL HOUSING AUTHORITY RE: BOYD COURT 9147 OF THE CITY OF SAN RAFAEL SAN RAFAEL REDEVELOPMENT MODERATE INCOME HOUSING HOUSING GROUP AND THE MARIN CONDOMINIUMS. WHEREAS, the City and the Housing Authority of the County of Marin ("Housing Authority") entered into that certain Below Market Rate Housing Agreement dated as of July 6, 1993 and recorded in the Offical Records of the County of Marin on July 29, 1993 as No.93-060428 ("Developer Agreement") with San Rafael Housing Group, Inc. ("Developer"), whereby Developer agreed to assist in providing housing to moderate -'income households as one of the conditions upon which a 25 -unit residential housing development to be constructed by Developer, known as Boyd Court Condominiums ("Project"), was approved by City; and WHEREAS, pursuant to the Developer Agreement, Developer agreed to sell certain of the condominium units in the Project (each, a "Home") at an affordable price at least nine percent (9%) lower than the fair market value of each Home, with the amount of this price difference to constitute a loan payable to the City; and WHEREAS, the Housing Authority agreed in the Developer Agreement to administer this deferred second mortgage program; and WHEREAS, the City desires to assign its rights and obligations under the Developer Agreement to the San Rafael Redevelopment Agency ("Agency") and the Agency desires to assume the same; NOW, THEREFORE, BE IT RESOLVED THAT: The City Council of the City of San Rafael hereby approves the Assignment and Assumption Agreement presented to the City Council in connection with consideration of this resolution and hereby authorizes the City Manager or designee to execute that agreement on behalf of the City Council, subject to such minor changes that the City Manager deems appropriate. I, JEANNE M. LEONCINI, City Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a special joint meeting of the Council and Redevelopment Agency of said City on MONDAY the 6TH day of JUNE , 1994, by the following vote to wit: AYES: COUNCILMEMBERS: Heller, Thayer and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Cohen DISQUALIFIED: COUNCILMEMBERS: Zappetini (due to Conflict of Interest) JEAN -M. LEONCINI; CITY CLERK 1410AU-PSO 06/07/94 ORIGINAL #91�7 SAN RAFAEL REDEVELOPMENT AGENCY RESOLUTION NO. 94-21 MOVED BY: MEMBER HELLER SECONDED BY: MEMBER THAYER A RESOLUTION OF THE SAN RAFAEL REDEVELOPMENT AGENCY APPROVING THE ASSIGNMENT TO THE AGENCY OF AN AGREEMENT REGARDING MODERATE INCOME HOUSING BETWEEN THE CITY OF SAN RAFAEL, THE SAN RAFAEL HOUSING GROUP AND THE MARIN HOUSING AUTHORITY RE: BOYD COURT CONDOMINIUMS. FINDINGS AND PURPOSE: The San Rafael Redevelopment Agency, Marin County, California ("Agency"), does hereby find, declare and determine that: 1. WHEREAS, the City of San Rafael ("City") and the Housing Authority of the County of Marin ("Housing Authority") entered into that certain'Below Market Rate Housing Agreement dated as of July 6, 1993 and recorded in the Offical Records of the County of Marin on July 29, 1993 as No.93-060428 ("Developer Agreement") with San Rafael Housing Group, Inc. ("Developer"), whereby Developer agreed to assist in providing housing to moderate income households as one of the conditions upon which a 25 -unit residential housing development to be constructed by Developer, known as Boyd Court Condominiums ("Project"), was approved by City; and 2. WHEREAS, pursuant to the Developer Agreement, Developer agreed to sell certain of the condominium units in the Project (each, a "Home") at an affordable price at least nine percent (9%) lower than the fair market value of each Home, with the amount of this price difference to constitute a loan payable to the City; and 3. WHEREAS, in addition to the City's loan, the program provides that each Home will be financed by a primary loan from a first lender to the owner of the Home (the "First Lender's Loan"), which will be secured by a deed of trust recorded in a first lien position on the Home; and 4. WHEREAS, in order to protect the financial interest of the City and its program of providing housing for moderate income households, the Developer Agreement requires the owner to execute a note ("Note") in favor of the City; and 1410AW.P50 06/07/94 CONY #9��� 5. WHEREAS, the Developer Agreement also requires the owner to grant to the Housing Authority or its assignee an option to purchase the Home prior to transfer and to agree to certain use restrictions on the Home which are included in an agreement entitled Covenants, Restrictions and Option to Purchase ("Covenants"); and 6. WHEREAS, the Covenants and the Note shall be secured by a deed of trust executed by the owner and recorded in a second lien position (the "Deed of Trust"), subordinate to the lien securing the First Lender's Loan; and 7. WHEREAS, the Housing Authority agreed in the Developer Agreement to administer this deferred second mortgage program; and 8. WHEREAS, the City desires to assign its rights and obligations under the Developer Agreement to the Agency and the Agency desires to assume the same. NOW, THEREFORE, BE IT RESOLVED THAT: 1. The Agency hereby approves the Assignment and Assumption Agreement presented to the Agency in connection with consideration of this resolution and hereby authorizes the Executive Director of the Agency or her designee to execute the Assignment and Assumption Agreement on behalf of the Agency, subject to such minor changes as the Executive Director or such designee may deem appropriate. 2. The Agency hereby approves the Note, the Deed of Trust and the Covenants and hereby authorizes the Executive Director of the Agency or her designee to execute the Covenants for each Home on behalf of the Agency, subject to such minor changes as the Executive Director or such designee may deem appropriate, and to take such other actions and execute any additional documents as are reasonably necessary to carry out and are consistent with the transactions contemplated by this Resolution. 1410AW.P50 06/07/94 I, JEANNE M. LEONCINI, Agency Secretary of the San Rafael Redevelopment Agency, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a special joint meeting of said Agency and the City Council of the City of San Rafael on MONDAY , the 6TH day of JUNE , 1994, by the following vote to wit: AYES: MEMBERS: Heller, Thayer and Chairman Boro NOES: MEMBERS: None ABSENT: MEMBERS: Cohen DISQUALIFIED: MEMBERS: Zappetini (due to Conflict of Interest) JEAot M.LEONCINI, iggencyy Secretary 1410AW.P50 06/07/94 RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 BY: City of San Rafael When Recorded Mail To: City of San Rafael P.O.Box 151560 San Rafael, California 94915-1560 Attn: City Clerk ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement (the is entered into as of this 6th day of JUNE , between the City of San Rafael ("City") and the Sa Redevelopment Agency, a public body, corporate and "Agency"). RECITALS "Agreement") 1994, by and San Rafael politic (the A. The City, the Agency and the Housing Authority of the County of Marin ("Housing Authority") have determined that it would be desirable to assist in the purchase of homes by moderate income households; and B. In order to assist moderate income households in purchasing housing, the City and the Agency have caused or will cause deferred second mortgages to be provided to eligible moderate income households to assist them in the purchase of homes at affordable housing cost; and C. The City and the Housing Authority entered into that certain Below Market Rate Housing Agreement dated as of July 6, 1993 and recorded in the Offical Records of the County of Marin on July 29, 1993 as No.93-060428 ("Developer Agreement") with San Rafael Housing Group, Inc. ("Developer"), whereby Developer agreed to assist in providing housing to moderate income households as one of the conditions upon which a 25 -unit residential housing development to be constructed by Developer, known as Boyd Court Condominiums ("Project"), was approved by City; and 1410AO.P50 05/12/94 -1- D. Pursuant to the Developer Agreement, Developer agreed to sell the condominium units in the Project (each, a "Home") at an affordable price at least nine percent (9%) lower than the fair market value of each Home, with the amount of this price difference to constitute a loan payable to the City; and E. The Housing Authority agreed in the Developer Agreement to administer this deferred second mortgage program; F. The City desires to assign its rights and obligations under the Developer Agreement to the Agency and the Agency desires to assume the same; NOW, THEREFORE, the City and _the Agency agree, as follows: 1. Assianment. The City hereby assigns to the Agency all of the City's rights, title and interest in, and obligations under, the Developer Agreement. 2. Assumption. The Agency hereby assumes all of the City's rights, title, and interest in, and obligations under the Developer Agreement. 3. Applicable Law. This Agreement shall be interpreted under and pursuant to the laws of the State of California. 4. Counterparts. This Agreement may be executed in counterparts, which together shall constitute but one and the same agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on or as of the date first written above. CITY: amela J. 4icolai Title: City Mana er ATTEST: ���. %y ,O4 Jeanne VM. Leoncini,Clerk ACKNOWLEDGED AND CONSENTED TO BY: AGENCY: B / �7"iai - By `-' Pamela. i Title: Execut ve Director ATTEST: Jeanne MV Leoncini, gency Secretary MARIN DEVELOPER: SAN RAFAEL HOUSING GROUP ,HOUSING AUTHORITY: A California Limited Partnership, �p n By Its General .Partner .. By:� KUYKENDALL CHATHAM DEVELOPERS, A Califo enera nership, By: �. Arthur R. Chat am, General Partner 1410A0.PSO OS/12/94 -2- State of California ) County of Marin ) On June 8- 1494 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared Pamela J. Nicolai, Citv Manager of the City of Ban Rafael personally known to me (er prevei " me en thebaeic •f satisfaetery --1 ::'==ee) to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in has/ her/them authorized capacity(}es), and that by h}s/her/their signature(q) on the instrument the person(s), or the entity upon behalf of which the person(a) acted, executed the instrument. WITNESS my hand and official seal. 0" A. IMARC TTE, NOTARY PUBLIC My commission expires 11/17/95 - 3 - A. FICIAL SEAL MARCOTTE Notary Public -California ; MARIN COUNTY My Commission Expires , - - - .... November 17, 1995 State of California :County of Marin On June 8, 1994 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared Pamela J. Nicolai, Executive Director of the San Rafael Redevelopment AcTencv personally known to me ( •r. ira-- basis --&I 3atisfaetery ::-------en e) to be the person (a) whose name (a) is/are subscribed to the within instrument and acknowledged to me that die/she/they executed the same in Vis/ her/their authorized capacity (yes) , and that by h4a/her/ter signature (s) on the instrument the person(a), or the entity upon behalf of which the person(a) acted, executed the instrument. WITNESS my hand and official seal. OFFICIAL SEAL A. M. MARCOTTE ' /.� ' Notary Public -California (,Q =`� MARIN COUNTY A. M. MARC TTE, NOTARY PUBLIC , .`,o.. My Commission Expires My commission expires 11/17/95 - .. . November 17, 1995 . - 4 - CALIFORNIA ALL-PURPOSr- ACKNOWLEDGMENT State of CALIFORNIA County of MARIN On JUNE 9, 1994 DATE personally appeared -rr rrr�rr rir rr rr rte^• before me, No. 5907 3 u A. M. MARCOTTE. NnTARY PTTRT,T(- L NAME. TITLE OF OFFICER - E.G.. 'JANE DOE, NOTARY PUBLIC' NAME(S) OF SIGNER(S) U l� ARTHUR R. CHATHAM ❑ personally known to me - OR -€ proved to me on the basis of satisfactory evidence to be the person( -s) whose name(s;) is/ass . subscribed to the within instrument and ac- !: _ _ ,,..- ' . , - OFFICIAL SEAL A. M. MARCOTrE knowledged to me that he/shs�, q executed l Notary Public -California , the same in hisl�he- I0te+r authorized , MARIN COUNT , My Commission Expires , capacity(ies), and that by his/h her V: y - - - . - November 17, 1995 4 signature(o) on the instrument the persons) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. SIdNATURE OF NOTARY OPTIONAL t. 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. j CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ® PARTNER(S) ❑ LIMITED ® GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT ASSIGNMENT & ASSUMPTION AGREEMENT`, TITLE OR TYPE OF DOCUMENT �J 2 NUMBER OF PAGES l 1 1 6/6/94 DATE OF DOCUMENT l l 1 SAME i SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIA71ON - 8236 Remmet Ave., P.O. Box 7184 -Canoga Park, CA 91309-7184 - 5 - CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF Marin On 6/14/94 before me, DATE Kay A. McClure, Notary Public NAME, TITLE OF OFFICER - E.G., -JANE DOE, NOTARY PUBLIC' personally appeared, Janet Miller Schoder, Executive Director 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. .-5E4 Kay A. McClure QCC,•. --­.I. #1004871 NOTA� y : RY PUBLIC - CALIFORNIAQ MARIN COUNTY 0 Comm, Expires Sept. 22.1987 (SEAL) i . . ., . . . ... . NOT PUB( IC SIGNATURE V / OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE NUMBER OF PAGES COMPLIMENTARY RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail To: Marin Housing Authority P.O. Box 4282 San Rafael, California 94913 Attn: Executive Director NOTE TO BORROWER: THIS DEED OF,TRUST CONTAINS PROVISIONS RESTRfCTING ASSUMPTIONS DEED OF TRUST THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made this day of , 19_, among the trustor, ("Borrower"), whose address is , and ("Trustee"), and the San Rafael Redevelopment Agency, a public body, corporate and politic (the "Agency") as Beneficiary. The Borrower, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of San Rafael, State of California, described in the attached Exhibit "A" and more commonly known as: , San Rafael, California (the "Property"); and TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Deed of Trust and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; 1410AA.PSO 04/14/94 _ 1 _ TO SECURE to the Agency the performance of the covenants and agreements of Borrower contained in that certain Covenants, Restrictions and Option to Purchase (the "Covenants") executed by and between the Owner, the Agency, and the Housing Authority of the County of Marin ("Housing Authority"); TO SECURE to the Agency the repayment of the sums evidenced by a promissory note to the Agency executed by Borrower, dated , 19 , in the amount of Dollars ($ ) ("Note"); and TO SECURE the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Borrower herein contained. BORROWER AND AGENCY COVENANT AND AGREE AS FOLLOWS: 1. Borrower's Estate. That Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the Security is encumbered only by: (1) that deed of trust ("First Lender Deed of Trust") executed by Borrower in connection with a loan made to Borrower by , or its successors and assigns (the "First Lender"), securing a promissory note executed by Borrower in favor of the First Lender ("First Lender Note"), to assist in the purchase of the Property; (2) the Note; and (3) the Covenants. Borrower agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring the Agency's interest in the Security. 2. ReDavment of Loan. Borrower will promptly repay, when due, the principal and contingent interest required by the Note. 3. Covenants. Borrower will observe and perform all of the covenants and agreements of the Covenants. 4. Charaes: Liens. Borrower will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Borrower making any payment, when due, directly to the payee thereof. Borrower will promptly furnish to the Agency all notices of amounts due under this paragraph, and in the event Borrower makes payment directly, Borrower will promptly discharge any lien which has priority over this Deed of Trust; provided, 1410AA.P50 04/14/94 -2- that Borrower will not be required to discharge the lien of the Deed of Trust securing the First Lender Note (the "First Lender Deed of Trust") or any other lien described in this paragraph so long as Borrower will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Agency, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 5. Hazard Insurance. Borrower will provide, maintain and deliver to Agency a standard fire and extended coverage insurance policy covering the Security in at least such amounts and for such periods as the Agency may require. All insurance policies and renewals thereof will be in'a form acceptable to the Agency, and Borrower shall promptly furnish to the Agency, or its designated agent, copies of all insurance policies or certificates of insurance. In the event of loss, Borrower will give prompt notice to the insurance carrier and the Agency or its designated agent. The Agency, or its designated agent, may make proof of loss if not made promptly by Borrower. The Agency shall receive thirty days advance notice of cancellation of any insurance policies required under this section. Unless the Agency and Borrower otherwise agree in writing, insurance proceeds, subject to the rights of the First Lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Borrower. If the Security is abandoned by Borrower, or if Borrower fails to respond to the Agency, or its designated agent, within thirty (30) days from the date notice is mailed by either of them to Borrower that the insurance carrier offers to settle a claim for insurance benefits, the Agency, or its designated agent, is authorized to collect and apply the insurance proceeds at the Agency's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Agency, all right, title and interest of Borrower in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Agency to the extent of the sums secured by this Deed of Trust immediate prior to such sale or acquisition subject to the rights of the First Lender. 1410AA.P50 04/14/94 -3- Notwithstanding any other provision.of this Deed of Trust, the rights of the Agency to collect and apply the proceeds of insurance shall be subject to the rights of the First Lender to collect and apply such proceeds in accordance with the terms of the First Lender Deed of Trust. 6. Preservation and Maintenance of Security,. Borrower will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 7. Protection of the Aaencv's Securitv. If Borrower fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Agency's interest in the Security, including, but not limited to, default under the deed of trust securing the First Lender Note, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Agency, at the Agency's option, upon notice to Borrower, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Agency's interest, including but not limited to, disbursement of reasonable attorney's fees and entry upon the Security to make repairs. Any amounts disbursed by the Agency pursuant to this paragraph, with interest thereon, will become an indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and Agency agree to other terms of payment, such amount will be payable upon notice from the Agency to Borrower requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Agency to insure any expense or take any action hereunder. 8. Inspection. The Agency may make or cause to be made reasonable entries upon and inspections of the Security; provided that the Agency will give Borrower reasonable notice of inspection. 9. Forbearance by the Agency Not a Waiver. Any forbearance by the Agency in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Agency will not be a waiver of the Agency's 1410AA.P50 04/14/94 -4- right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 10. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 11. Successors and Assians Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Agency and Borrower subject to the provisions of this Deed of Trust. r 12. Joint and Several Liabilitv. All covenants and agreements of Borrower shall be joint and several. 13. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Borrower provided for in this Deed of Trust will be given by certified mail or express delivery, return receipt requested, addressed to Borrower at the address shown in the first paragraph of this Deed of Trust or such other address as Borrower may designate by notice to the Agency as provided herein, and (b) any notice or delivery to the Agency will be given instead to the Housing Authority by certified mail or express delivery, return receipt requested, addressed to the Housing Authority at P.O. Box 4282, San Rafael, California 94913, Attention: Executive Director, or to such other address as the Agency may designate by notice to Borrower as provided above. Notice shall be effective as of the date received by the Housing Authority as shown on the return receipt. 14. Governina Law. This Deed of Trust shall be governed by the laws of the State of California. 15. Severabilitv. In the event that any provision or clause of this Deed of Trust or the Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the Note are declared to be severable. 16. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 1410AA.P50 04/14/94 _ 5 - 17. Acceleration; Remedies. Upon Borrower's breach of any covenant or agreement of Borrower in the Covenants or this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Agency or the Housing Authority, as applicable, prior to acceleration, will mail by certified mail or express delivery, return receipt requested notice to Borrower specifying; (1) the breach; (2) the action required to cure such breach; (3) a date, not less than thirty (30) days from the date the notice is received by Borrower as shown on the return receipt, by which such breach is to be cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Borrower;of Borrower's right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of Borrower to acceleration and sale. If the breach is not cured on or before the date specified in the notice, the Agency, at the Agency's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Agency shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California -Civil Code Sections 2924, et sea., as amended from time to time; or (d) exercise all other rights and remedies provided herein, in the instruments by which the Borrower acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. 1410AA.P50 04/14/94 -6- The Agency shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees. 18. Borrower's Riaht to Reinstate. Notwithstanding the Agency's acceleration of the sums secured by this Deed of Trust, Borrower will have the right to have any proceedings begun by the Agency to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Borrower pays Agency all sums which would be then due under this Deed of Trust and no acceleration under the Note has occurred; (b) Borrower cures all breaches'of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) Borrower pays all reasonable expenses incurred by Agency and Trustee in enforcing the covenants and agreements of Borrower contained in this Deed of Trust, and in enforcing the Agency's and Trustee's remedies, including, but not limited to, reasonable attorney's fees; and (d) Borrower takes such action as Agency may reasonably require to assure that the lien of this Deed of Trust, Agency's interest in the Security and Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Borrower, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 19. Due on Transfer of the Proverty. Upon a Transfer (as defined in the Covenants) of the Property or any interest in it, the Agency may, at its option, require immediate payment in full of all sums secured by this Deed of Trust. However, this option shall not be exercised by the Agency if exercise is prohibited by federal law as of the date of this Deed of Trust, or if the Agency has executed a separate written waiver of this option. 20. Reconvevance. Upon payment or forgiveness of all sums secured by this Deed of Trust, the Agency will request Trustee to reconvey the Security and will surrender this Deed of Trust and the Note to Trustee. Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 21. Substitute Trustee. The Agency, at the Agency's option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 1410AA.P50 04/14/94 -7- 22. Superiority of First Lender Documents. Notwithstanding any other provision hereof, Agency and Borrower acknowledge and agree that this Deed of Trust is subject and subordinate in all respects to the lien, terms, covenants and conditions of the First Lender Deed of Trust and to all advances heretofore made or which may hereafter be made pursuant to the First Lender Deed of Trust, including all sums advanced for the purpose of (a) protecting or further securing the lien of the First Lender Deed of Trust, curing defaults by the Borrower under the First Lender Deed of Trust or for any other purpose expressly permitted by the First Lender Deed of Trust or (b) constructing, renovating, repairing, furnishing, fixturing or equipping the Property. The terms and provisions of the First Lender Deed of Trust are paramount and controlling, and they supersede any other terms and provisions hereof in conflict therewith. In the event of a foreclosure or deed in lieu of foreclosure of the First Lender Deed of Trust, any provisions herein or any provisions in any other collateral agreement restricting the use of the Property or otherwise restricting the Borrower's ability to sell the Property shall have no further force or effect on subsequent owners or purchasers of the Property. Any person, including the successors or assigns of such person (other than the Borrower or a related entity of the Borrower) receiving title to the Property through a foreclosure or deed in lieu of foreclosure of the First Lender Deed of Trust shall receive title to the Property free and clear from such restrictions. Further, if the First Lender acquires title to the Property pursuant to a deed or assignment in lieu of foreclosure, the lien of this Deed of Trust shall automatically terminate upon the First Lender's acquisition of title, provided that (i) the Agency has been given written notice of a default under the First Lender Deed of Trust and (ii) the Agency shall not have cured the default under the First Lender Deed of Trust, or diligently pursued curing the default as determined by the First Lender, within the sixty (60) -day period provided in such notice sent to the Agency. This agreement shall not diminish or affect the rights of HUD, FNMA or the Veterans Administration ("VA"), as and if applicable, under the First Lender Deed of Trust. Notwithstanding any provision in this Deed of Trust to the contrary, all of the provisions of this Deed of Trust shall terminate and have no further force and effect upon the occurrence of one of the following events: (i) Title is acquired by HUD, FNMA, VA, or another party upon foreclosure of a deed of trust insured by HUD or guaranteed by VA; (ii) Title is acquired by HUD, FNMA, VA, or another party by a deed in lieu of 1410AA.P50 04/14/94 -8- foreclosure of a deed of trust insured by HUD or guaranteed by VA; or (iii) a deed of trust insured by HUD is assigned to HUD. 23. Request for Notice. Borrower requests that copies of the notice of default and notice of sale be sent to Borrower at the address set forth in Section 13 above. IN WITNESS WHEREOF, Borrower has executed this Deed Of Trust as of the date first written above. Borrower Borrower 1410AA.P50 04/14/94 -9- EXHIBIT A Property Description 1410AA.P50 04/14/94 -10- STATE OF CALIFORNIA ) )ss COUNTY OF ) On , 199 , 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 (This area for official notarial seal) 1410AA.PSO 04/14/94 —11— STATE OF CALIFORNIA ) )ss COUNTY OF ) On , 199_, 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 (This area for official notarial seal) 1410AA.P50 04/14/94 -12- RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail To: Marin Housing Authority P.O.Box 4282 San Rafael, California 94913 Attn: Executive Director COVENANTS, RESTRICTIONS AND OPTION TO PURCHASE Owner: Residence: These Covenants, Restrictions and Option to Purchase (the "Covenants") are entered into as of this day of , 1994, by and between the San Rafael Redevelopment Agency, a public body, corporate and politic (the "Agency"), the Housing Authority of the County of Marin, a public body, corporate and politic (the "Housing Authority") and (the "Owner"). RECITALS A. The City of San Rafael ("City"), the Agency and the Housing Authority have determined that it would be desirable to 1410AM.P50 04/18/94 _ 1 _ assist in the purchase of homes by moderate income households; B. In order to assist moderate income households in purchasing housing, the City and the Agency have caused deferred second mortgages to be provided to eligible moderate income households to assist them in the purchase of homes at affordable housing cost; and C. The City and the Housing Authority entered into that certain Below Market Rate Housing Agreement dated as of July 6, 1993 ("Developer Agreement") with San Rafael Housing Group, Inc. ("Developer"), whereby Developer agreed to assist in providing housing to moderate income households as one of the conditions upon which a 25 -unit residential housing development to be constructed by Developer, known as Boyd Court Condominiums ("Project"), was approved by City; and D. Pursuant to the Developer Agreement, Developer agreed to sell the condominium units in the Project (each, a "Home") at an affordable price at least nine percent (9%) lower than the fair market value of each Home, with the amount of this price difference to constitute a loan payable to the City; and E. The Housing Authority agreed in the Developer Agreement to administer this deferred second mortgage program; and the City has assigned or will assign its rights and obligations under the Developer Agreement to the Agency; and 1410AM.P50 04/18/94 -2- F. In addition to the deferred second mortgage provided by the Agency, the Owner's residence will be financed by a primary loan from (the "First Lender") to Owner (the "First Lender's Loan"); and G. The First Lender's Loan will be secured by a deed of trust recorded in a first lien position on Owner's residence (the "First Lender's Deed of Trust"); and r H. In order to protect its financial interest and program of providing housing for moderate income households, the Agency has required the Owner to execute a note ("Note") in its favor in addition to these Covenants; and I. The Covenants and the Note shall be secured by a deed of trust recorded in a second lien position (the "Deed of Trust"), subordinate only to the lien securing the First Lender's Loan; and J. The purpose of the Covenants is to place certain use restrictions on the residence and reserve to the Agency and the Housing Authority an option to purchase the residence under certain conditions. NOW, THEREFORE, in consideration of the benefits received by the Owner, the Agency and the Housing Authority, the Owner, the Agency and the Housing Authority agree, as follows: 1410AM.P50 04/18/94 -3- 1. DEFINITIONS The following terms are specially defined for these Covenants: A. "Covenants" shall mean these Covenants, Restrictions and Option to Purchase. B. "Contingent Interest" shall have the same meaning as defined in the Note. r C. "Deed of Trust" shall mean the deed of trust securing the Note and these Covenants, and recorded in a second lien position against the Residence, subordinate only to the First Lender's Deed of Trust. D. "Fair Market Value" shall mean the value of the Residence as determined by an appraisal prepared in accordance with Section 8 below. E. "First Lender" shall mean the lender described in Recital F above. F. "First Lender's Deed of Trust" shall mean the deed of trust securing the First Lender's Loan and recorded in a priority lien position against the Residence. G. "First Lender's Loan" shall mean the loan from the First Lender to Owner for purchase of the Residence. H. "FNMA" shall mean the Federal National Mortgage Association. 1410AM.P50 04/18/94 -4- I. "Note" shall mean the promissory note evidencing the deferred second mortgage to the Owner by the Agency in connection with the Owner's purchase of the Residence. J. "Option" shall mean the option to purchase the Residence that may be exercised by either the Agency or the Housing Authority pursuant to Section 7 or Section 12 below. K. "Residence" shall mean that certain real property described in Exhibit A attached hereto and incorporated herein. L. "Term" shall mean the period of these Covenants beginning on the date first written above and ending on the date thirty (30) years thereafter. M. "Transfer" shall mean any sale, assignment or transfer of any interest in the Residence as provided in Section 5 below. 2. DESCRIPTION OF PROPERTY The Covenants concern that certain real property located in San Rafael, California, which is more fully described in Exhibit A attached hereto and incorporated herein by reference (the "Residence"). 3. OWNER CERTIFICATIONS A. The Owner certifies that (i) the financial and other information previously provided in order to qualify to purchase the Residence is true and correct as of the date first written above, and (ii) the Owner shall occupy the Residence as the Owner's principal place of residence. The Owner shall be considered as occupying the Residence if the Owner is living in 1410AM.P50 04/18/94 - 5- the Residence for at least ten (10) months out of each calendar year. The Housing Authority may grant a temporary waiver of this occupancy requirement for good cause in its sole discretion. B. The Owner shall periodically, upon the request of the Housing Authority, certify in writing to the Housing Authority, on a form supplied by the Housing Authority, that: i) the Owner occupies the Residence as the Owner's principal place of residence; and ii) the Residence is in good repair. 4. LEASING OF RESIDENCE The Owner shall not lease the Residence except in hardship cases as determined in writing by the Housing Authority. The Owner shall provide the Housing Authority with a copy of a proposed lease at least sixty (60) days prior to the proposed lease date. The Owner shall also provide the Housing Authority with a copy of the executed lease. Any lease in violation of these Covenants is prohibited, and shall constitute a default by the Owner hereunder. 5. TRANSFER OF RESIDENCE "Transfer" means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Residence, including, but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, or an interest evidenced by a land contract by which possession of the Residence is transferred and Owner retains title, except transfers by gift, devise or inheritance to an existing spouse, surviving joint 1410AM.P50 04/18/94 -6- tenant, or a spouse as part of a dissolution proceeding or in connection with marriage, or by devise or inheritance to children. Any Transfer without satisfaction of the provisions of the Covenants is prohibited and shall be voidable at the option of the Housing Authority. 6. NOTICE OF INTENDED TRANSFER In the event the Owner intends to Transfer or vacate the Residence, the Owner shall promptly notify the Housing Authority in writing of such intent. The written notice shall be given in accordance with Section 19 below at least ninety (90) days prior to the actual date of the Transfer or vacation of the Residence. Said notice from the Owner shall be sent by certified mail, return receipt requested. Following receipt of such notice, the Agency or the Housing Authority may purchase the Residence pursuant to Section 7 below. 7. AGENCY AND HOUSING AUTHORITY PURCHASE OPTION The Owner agrees that, upon receipt by the Housing Authority of the notice specified in Section 6 above, the Agency or the Housing Authority shall have the option, but not the obligation, to purchase the Residence (the "Option") for an amount equal to the Fair Market Value of the Residence in accordance with Section 8 below. If the Agency or the Housing Authority decides to exercise the Option to purchase the Residence, it shall within sixty (60) days of receipt by the Housing Authority of the notice specified in Section 6 above, notify the Owner in accordance with 1410AM.PSO 04/18/94 -7- Section 19 below that it chooses to exercise the Option. If the Agency or the Housing Authority exercises the Option to purchase, it shall purchase the Residence at Fair Market Value within ninety (90) days of the date it receives the notice specified in Section 6 above. If the Agency or the Housing Authority fails to purchase the Residence within such ninety (90) day period and such failure is not attributable to the actions or inaction of the Owner, the Option shall terminate. Notwithstanding any other provision hereof, the Agency or the Housing Authority may, instead of purchasing the Residence itself, assign its right to purchase the Residence to a person who meets the criteria established by the Agency or the Housing Authority, or to the City or another governmental agency, or to a nonprofit organization devoted to developing or operating housing for low and moderate income persons. 8. FAIR MARKET VALUE If it is necessary to determine the Fair Market Value of the Residence, it shall be determined by a real estate appraiser mutually agreed upon by the Housing Authority and the Owner. If possible, the appraisal shall be based upon the sales prices of comparable properties sold in the market area during the preceding three-month period. The cost of the appraisal shall be borne by the Owner. In the event the Housing Authority and the Owner cannot agree on an appraiser, the Fair Market Value of the Residence will be determined by taking the average of two 1410AM.PSO _ 04/18/94 -8 appraisals -- one prepared by an appraiser chosen by the Housing Authority and the other prepared by an appraiser chosen by the Owner. In the event that the Owner has made capital improvements to the Residence which have improved the value of the Residence, the appraisal shall specifically ascribe a value to these adjustment factors and state what the fair market value of the Residence would be without such adjustments. Nothing in this section shall preclude the Owner and the Housing Authority from establishing the fair market value of the Residence, including the value of any capital improvements, by mutual agreement in lieu of an appraisal pursuant to this section. 9. REPAYMENT OF AGENCY NOTE UPON TRANSFER BY OWNER If the Agency or the Housing Authority exercises the Option to purchase the Residence, the outstanding amount of principal and Contingent Interest (as defined in the Note) due under the Note shall be paid in the form of a credit against the purchase price to be paid by the Agency or the Housing Authority to the Owner. If a Transfer of the Residence occurs and neither the Agency nor the Housing Authority elects to exercise the Option to purchase the Residence, the Owner shall pay the Agency whatever principal and Contingent Interest is due under the Note. The Agency or the Housing Authority may require the Owner and the proposed purchaser to certify in writing, in a form acceptable to the Agency or the Housing Authority, that the proposed purchaser 1410AM.P50 04/18/94 -9- or any other party has not paid and will not pay to Owner, and Owner has not received and will not receive from the proposed purchaser or any other party, money or other consideration in addition to what is set forth in the sales contract and in such written certification. Thereafter, the Covenants shall terminate and have no further effect. r 10. TRANSFER BY OWNER In the event neither the Agency nor the Housing Authority exercises the Option to purchase pursuant to Section 7 above, the Owner may sell the Residence to a person of the Owner's choosing. 11. DEFAULTS AND REMEDIES Upon a violation of any of the provisions of the Covenants, the Note, or Deed of Trust by the Owner, the Housing Authority shall give written notice to the Owner specifying the nature of the violation. If the violation is not corrected to the satisfaction of the Housing Authority within a reasonable period of time, not longer than thirty (30) days after the date the notice is mailed, or within such further time as the Housing Authority determines is necessary to correct the violation, the Housing Authority may declare a default under the Covenants. The Housing Authority shall notify the First Lender if the Housing Authority has declared a default under the Covenants, the Note, or the Deed of Trust. The notice to the First Lender shall indicate that the Agency or the Housing Authority may exercise 1410AM.P50 04/18/94 -10- the Option to purchase the Residence pursuant to Sections 7 or 12 of the Covenants. Upon the declaration of a default or if the Owner makes any misrepresentation in connection with receiving any benefits under the Covenants, the Housing Authority may apply to a court of competent jurisdiction for specific performance of the Covenants, or for any such other relief at law or in equity as may be appropriate and shall have the right to declare the full amount of principal and interest under the Note immediately due and payable. 12. PURCHASE OPTION UPON DEFAULT A. PURCHASE OPTION: Notwithstanding, and in addition to, the remedies provided the Housing Authority in Section 11, the Owner hereby grants to the Agency and the Housing Authority, the Option to purchase the Residence upon Owner's default under these Covenants or default under any promissory note, deed of trust or any other lien recorded against the Residence, including, but not limited to the Note, the Deed of Trust, the First Lender's Loan or the First Lender's Deed of Trust ("Third Party Loans"). Said Option to purchase is given in consideration of the economic benefits received by the Owner resulting from ownership of the Residence made possible by the financial assistance of the Agency in the Owner's purchase of the Residence. B. EXERCISE OF OPTION: The Housing Authority shall have sixty (60) days after either (i) declaring a default under these 1410AM.P50 04/18/94 -11- Covenants or (ii) receiving notice of Owner's default under any Third Party Loan to notify the Owner of the decision of the Agency or the Housing Authority to exercise the Option to purchase. Not later than ninety (90) days after such notice is given in accordance with Section 19 below, the Agency or Housing Authority shall purchase the Residence at its Fair Market Value. If the Agency or the Housing Authority fails to purchase the f Residence within such ninety (90) day period and such failure is not attributable to the actions or inaction of the Owner, the Option shall terminate. Notwithstanding any other provision hereof, the Agency or the Housing Authority may, instead of purchasing the Residence itself, assign its right to purchase the Residence to a person who meets the criteria established by the Agency or the Housing Authority, or to the City, or another governmental agency, or to a nonprofit organization devoted to developing or operating housing for low and moderate income persons. 13. NONLIABILITY OF THE AGENCY AND HOUSING AUTHORITY In no event shall the Agency or the Housing Authority become in any way liable or obligated to the Owner or any successor -in - interest to the Owner by reason of the Option to purchase under Sections 7 or 12 hereof nor shall the Agency or the Housing Authority be in any way obligated or liable to the Owner or any successor -in -interest to the Owner for any failure to exercise the Option to purchase under Sections 7 or 12 hereof. 1410AM.P50 04/18/94 -12- 14. BINDING ON SUCCESSOR AND ASSIGNS The Covenants shall bind, and the benefit hereof shall inure to, the Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to the Agency and its successors and assigns, and to the Housing Authority and its successors and assigns, until the earlier of (a) the date on which all principal and Contingent Interest due under the Note has been paid in full, (b) the date the Agency or the Housing Authority purchases the Residence under Sections 7 or 12 hereof, or (c) the expiration of the Term hereof. 15. SUPERIORITY OF COVENANTS Subject to the provisions of Section 16 below, the Owner covenants that he or she has not, and will not, execute any other agreement with provisions contradictory to or in opposition to the provisions hereof, and that, in any event, the Covenants are controlling as to the rights and obligations between and among the Owner, the Agency, the Housing Authority and their respective successors and assigns. 16. RIGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS; SUBORDINATION These Covenants shall not diminish or affect the rights of the Agency under the Note or the Deed of Trust executed by the Owner in favor of the Agency in connection with the purchase by the Owner of the Residence. Notwithstanding any other provision hereof, Agency, Housing Authority and Owner acknowledge and agree that these Covenants 1410AM.P50 04/18/94 -13- are subject and subordinate in all respects to the lien, terms, covenants and conditions of the First Lender's Deed of Trust and to all advances heretofore made or which may hereafter be made pursuant to the First Lender's Deed of Trust, including all sums advanced for the purpose of (a) protecting or further securing the lien of the First Lender's Deed of Trust, curing defaults by the Owner under the First Lender's Deed of Trust or for any other purpose expressly permitted by the First Lender's Deed of Trust or (b) constructing, renovating, repairing, furnishing, fixturing or equipping the Residence. The terms and provisions of the First Lender's Deed of Trust are paramount and controlling, and they supersede any other terms and provisions hereof in conflict therewith. In the event of a foreclosure or deed in lieu of foreclosure of the First Lender's Deed of Trust, any provisions herein or any provisions in any other collateral agreement restricting the use of the Residence or otherwise restricting the Owner's ability to sell the Residence shall have no further force or effect on subsequent owners or purchasers of the Residence. Any person, including the successors or assigns of such person (other than the Owner or a related entity of the Owner) receiving title to the Residence through a foreclosure or deed in lieu of foreclosure of the First Lender's Deed of Trust shall receive title to the Residence free and clear from such restrictions. Further, if the First Lender acquires title to the Residence pursuant to a deed or assignment in lieu of foreclosure, the lien 1410AM.P50 04/18/94 -14- of these Covenants shall automatically terminate upon the First Lender's acquisition of title, provided that (i) the Housing Authority has been given written notice of a default under the First Lender's Deed of Trust and (ii) the Housing Authority shall not have cured the default under the First Lender's Deed of Trust, or diligently pursued curing the default as determined by the First Lender, within the sixty (60) -day period provided in such notice sent to the Housing Authority. This agreement shall not diminish or affect the rights of HUD, FNMA or the Veterans Administration ("VA"), as and if applicable, under the First Lender's Deed of Trust. Notwithstanding any provision in these Covenants to the contrary, all of the provisions of these Covenants shall terminate and have no further force and effect upon the occurrence of one of the following events: (i) Title is acquired by HUD, FNMA, VA, or another party upon foreclosure of a deed of trust insured by HUD or guaranteed by VA; (ii) Title is acquired by HUD, FNMA, VA, or another party by a deed in lieu of foreclosure of a deed of trust insured by HUD or guaranteed by VA; or (iii) a deed of trust insured by HUD is assigned to HUD. 17. INVALID PROVISIONS If any one or more of the provisions contained in the Covenants shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions 1410AM.P50 04/18/94 -15- shall be deemed severable from the remaining provisions contained in the Covenants, and the Covenants shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 18. CONTROLLING LAW The terms of the Covenants shall be interpreted under the laws of the State of California. 19. NOTICES All notices required herein shall be sent by certified mail, return receipt requested or express delivery service with a delivery receipt and shall be deemed to be effective as of the date received or the date delivery was refused as indicated on the return receipt as follows: " To the Owner: At the address of the Residence. To the Agency: Send all notices to the Housing Authority To the Housing Authority: Housing Authority of Marin P.O. Box 4282 San Rafael, CA 94913 Attn: Executive Director 1410AM.P50 04/18/94 -16- The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this Section 19. 20. NONDISCRIMINATION Owner covenants and agrees, for itself and its successors and assigns that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Residence, nor shall Owner itself or any person claiming under or through Owner establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Residence. 21. HUD FORBEARANCE RELIEF Notwithstanding any other provision of these Covenants, the Option to purchase shall not be exercised by the Agency or the Housing Authority or any other entity when a deed of trust insured by HUD is secured by the Residence, and: 1) the Owner is undergoing consideration by HUD for assignment forbearance relief; or ii) the Owner is undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment (TMAP) Program. 22. ASSIGNMENT 1410AM.P50 04/18/94 -17- Notwithstanding any other provision of these Covenants, the Housing Authority may assign any or all of its rights or obligations hereunder to the Agency or the City; and the Agency may assign any or all of its rights or obligations hereunder to the Housing Authority or the City. 23. EXHIBITS Any exhibits referred to in the Covenants are incorporated in the Covenants by such reference. IN WITNESS WHEREOF, the parties have executed these Covenants on or as of the date first written above. AGENCY: OWNER: By: Title: (Type Name and Title) (Type Name) HOUSING AUTHORITY: By: Title: 1410AM.P50 04/18/94 -18 - EXHIBIT A Residence Description 1410AM-PSO 04/18/94 -19- STATE OF CALIFORNIA ) )ss COUNTY OF SAN FRANCISCO ) On , before me, appeared , personally , 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 (This area for official notarial seal) 1410AM.P50 04/18/94 -20- STATE OF CALIFORNIA )ss COUNTY OF SAN FRANCISCO On , before me, appeared , personally 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 (This area for official notarial seal) 1410AM.P50 04/18/94 -21- STATE OF CALIFORNIA )ss COUNTY OF SAN FRANCISCO On , before me, , personally appeared r 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 sea[. Signature (This area for official notarial seal) 1410AM.P50 04/18/94 -22- STATE OF CALIFORNIA )ss COUNTY OF SAN FRANCISCO 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 (This area for official notarial seal) 1410AM.P50 04/18/94 -23- NOTICE TO BORROWER: THIS DOCUMENT CONTAINS PROVISIONS RESTRICTING RESALES AND ASSUMPTIONS PROMISSORY NOTE Secured by Deed of Trust San Rafael, California . 1994 FOR VALUE RECEIVED, the undersigned, ("Borrower"), promises to pay to the San Rafael Redevelopment Agency ("Agency"), or order, at P.O. Box 15160, San Rafael, California 94915-1560, Attn: Executive Director, or such other place as the Agency may designate in writing, the principal sum specified in Section 1 below, plus Contingent Interest calculated in accordance with Section 2 below. 1. Principal Sum. The principal sum due under this Note is Dollars ($ ), which amount represents the difference between the fair market value of the Residence, represented by the Original Sales Price (defined below), and the below market rate price ("BMR Price," as defined in the Developer Agreement) to Borrower. 2. Continaent Interest. Borrower shall pay Contingent Interest to the Agency equal to nine percent (9%) of the Appreciation Amount (defined below). 3. Securitv. This Note is secured by a Deed of Trust dated the same date as this Note. 4. Assumption of Note is Restricted,. Borrower(s) acknowledge(s) that this Note is given in connection with the purchase of the Residence to comply with requirements of the Agency to assist in the development of homes for moderate income persons. Consequently, this Note is not automatically assumable, but is subject to Section 711.5 of the California Civil Code which allows the Agency to accelerate all amounts due under this Note if any subsequent sale or transfer of the Residence of any 1410AK.PSO 04/18/94 -1- kind does not comply with the provisions of the Covenants (defined below). 5. Term. The term of this Note shall be thirty (30) years from the date first written above (the "Term"); provided, however, that repayment of the sums owed under this Note shall be payable at the time specified in Section 6 below. 6. Repayment. The total amount of the unpaid principal and Contingent Interest owed under this Note shall immediately become due and payable upon: (a) the date a Transfer (defined in the Covenants) is made whether voluntarily, involuntarily, or by operation of law and whether by deed, contract of sale, gift, devise, bequest or otherwise; fib) an event of default by Borrower under this Note, the Deed of Trust, or the Covenants; or (c) upon prepayment in full or refinance of the First Lender's Loan (defined below) if the amount refinanced exceeds the amount of the First Lender's Loan plus the Value of Capital Improvements (defined below) plus closing costs; provided that if this Note shall not have been repaid at an earlier time during the Term, the total amount owed under this Note shall be due and payable upon the first Transfer to occur following the expiration of the Term. 7. Prepavments. Borrower may prepay the principal balance and Contingent Interest.due under this Note without any prepayment charge. 8. Definitions. The terms set forth in this section shall have the following meanings in this Note. All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Covenants. (a) "Appreciation Amount" shall mean the difference between the Original Purchase Price of the Residence paid by Borrower and one of the following amounts, as applicable: (i) in the event of a sale of the Residence, the amount received by the Borrower as the sale price of the Residence (excluding amounts received but paid out for any commissions paid by Borrower and the Value of Capital Improvements), as certified in accordance with Section 9 of the Covenants; (ii) in the event of a Transfer other than sale of the Residence, or in the event of a default, or upon prepayment of this Note prior to expiration of the Term, the Fair Market Value of the Residence, less the Value of Capital Improvements; or (iii) for purposes of Section 9 below, in the event a creditor acquires title to the Residence through a deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the amount paid for the Residence at the creditor's sale of the Residence. 1410AK.P50 04/18/94 -2- (b) "Borrower's Equity Share" shall mean the Appreciation Amount minus the amount of the Agency's Contingent Interest. (c) "Contingent Interest" shall mean the percentage of the Appreciation Amount owed the Agency pursuant to Section 2 above. (d) "Covenants" shall mean the Covenants, Restrictions and Option to Purchase executed by and between the Agency, the Housing Authority and the Borrower, of even rate herewith. (e) "Fair Market Value" shall be determined by an appraisal of the Residence performed as provided in the Covenants. Nothing in this subparagraph shall preclude the Borrower and the Housing Authority from establishing the Fair Market Value of the Residence by mutual agreement in lieu of an appraisal. (f) "Housing Authority" shall mean the Housing Authority of the County of Marin, a public body, corporate and politic. (g) "Original Purchase Price" shall mean the price upon which the transfer tax is paid with respect to Borrower's purchase of the Residence. (h) "Residence" shall mean the housing unit and land which are encumbered by the Deed of Trust executed in connection with this Note. (i) "Value of Capital Improvements" shall mean the value of substantial structural or permanent fixed improvements which cannot be removed without substantial damage to the Residence or substantial or total loss of value of said improvements. No such valuation shall be made except for improvements: (i) made or installed by or under the direction of the Borrower; and (ii) with an initial cost of Two Thousand Dollars ($2,000) or more; and (iii) approved in advance in writing by the Housing Authority. The value of such improvements to be taken into account in calculation of the Appreciation Amount shall be, at the sole option of the Housing Authority, either (a) the market value of the improvements when considered as additions or fixtures to the Residence (i.e., the amount by which said improvements enhance the market value of the Residence at the time of sale or valuation), provided that the adjustment to the Appreciation Amount for such improvements shall be limited to increase in value, and shall be determined by agreement of the Housing Authority and Borrower, or, in the event of a failure to 1410AK.P50 04/18/94 -3- agree, by appraisal pursuant to Section 8 of the Covenants; or (b) calculated as the cost of the improvements as originally incurred by the Borrower and as evidenced by receipts or other documentation provided to the Housing Authority. 9. Restrictions on Foreclosure Proceeds. If a creditor acquires title to the Residence through a deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the Borrower shall not be entitled to the proceeds of sale to the extent that such proceeds exceed the amount paid by the Borrower as the downpayment on the Residence plus the amount of the Borrower's Equity Share. The Borrower shall instruct the holder of such excess proceeds to pay such proceeds to the Agency as the Agency's Contingent Interest inconsideration of the financial assistance provided in the acquisition of the Residence. 10. Acceleration. Upon the occurrence of a default under the Deed of Trust or the Covenants, the Agency or the Housing Authority, as applicable, shall have the right to declare the full amount of the principal along with any interest under this Note immediately due and payable. Any failure by the Agency or the Housing Authority to pursue its legal and equitable remedies upon default shall not constitute a waiver of the Agency's or, as applicable, the Housing Authority's right to declare a default and exercise all of its rights under this Note, the Deed of Trust, and the Covenants; nor shall acceptance by the Agency or the Housing Authority of any payment provided for herein constitute a waiver of the Agency's or Housing Authority's right to require prompt payment of any remaining principal and interest owed. 11. No Offset. Borrower hereby waives any rights of offset it now has or may hereafter have against the Agency or the Housing Authority, its successors and assigns, and agrees to pay to Agency the sums called for herein in accordance with the terms of this Note. 12. Waiver: Attornevs' Fees. Borrower and any endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, dishonor and non-payment of this Note, and expressly waive any rights to be released by reason of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payment hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection or enforcement when incurred, including reasonable 1410AK.P50 04/18/94 -4 - attorneys' fees. If an action is instituted on this Note, the undersigned promises to pay, in addition to the costs and disbursements allowed by law, such sum as the court may adjudge reasonable as attorneys' fees in such action. 13. Severabilitv. If any provision of this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. 14. Joint and Several Obliaations,. This Note is the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assigns. BORROWER 1410AY-PSO 04/18/94 - 5 -