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CD Clocktower II; 980 Lincoln AveRECORDING REQUESTED By and WHEN RECORDED MAIL TO: City of San Rafael Attn: City Clerk 1400 Fifth Avenue San Rafael, Ca 94901 No fee for recording pursuant to Government Code Section 27383 I! iflill�lllllillllll�lllill!lillll► II iii 2017-0036647 Recorded I REC FEE 0.00 Official Records I County of I C011FORHED COPi' 0.00 ffarin RICHARD H. misofl i Assessor -Recorder i County Clerk f 02:50PH 13 -Sep -2017 I Page 1 of 23 REGULAT Y AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (Below M rket Rate Rental Unit Agreement with No Condominium Map; Density Bonus Law) Development Name: Clocktower II Location: 980 Lincoln Avenue (APN 011-275-01) Developer: Clocktower Building, LLC This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") is made and entered into this 15`x' _day of August, 2017, among the CITY OF SAN RAFAEL, a municipal corporation ("City"); the HOUSING AUTHORITY OF THE COUNTY OF MARIN, a public body, corporate and politic, created under the Housing Authority Law of the State of California ("Marin Housing Authority"); and Clocktower Building, LLC, a California Limited Liability Company, or any successor in interest ("Developer"), collectively the "Parties,". RECITALS A. The City has adopted a density bonus ordinance (Section 14.16.030.H of the San Rafael Municipal Code) (the "Density Bonus Ordinance") to conform with state density bonus law (Government Code Sections 65915 — 65918) (together "Density Bonus Law"). Density Bonus Law allows a density bonus, concessions, and other regulatory incentives when a developer proposes to provide rental housing affordable to Very Low Income or Low Income Households, as defined below. B. Developer is the owner of certain real property located at 960-980 Lincoln Avenue, San Rafael, County of Marin, California which is more particularly described in attached Exhibit A incorporated herein by this reference (the "Property"). The property was developed in 1999 and contains 6,993 square feet of retail space on the ground floor, six residential units and 6,973 square feet of office on Level Two, 24 residential units on Levels 4 and 5, and 37 commercial parking spaces and 19 residential parking spaces. The Development has an allowable "base density" of 28 units. The Development received a two residential unit density bonus at the time it was developed in exchange for providing five affordable units. A Below Market Rate Rental Agreement (the "1999 Agreement") was recorded on the property under the 960 Lincoln Avenue address. C. The Developer now desires to convert the 6,973 square feet of offices on Level Two into eight residential units. The new residential units will consist of six (6) one bedroom units and two (2) two bedroom units. In consideration of certain valuable land use and economic benefits conferred by the City upon the Ztiq Property under Density Bonus Law, Developer, for itself, its successors, heirs, grantees and assigns, hereby agrees to comply with the requirements of Density Bonus Law as applied to the Property. D. On June 7, 2017, Developer received the following discretionary approvals from the City to construct a total of eight (8) dwelling units ("Units") (hereinafter referred to as the "Development") on the Property: Use Permit Application 16-048 (the "Project Approvals") As part of the Development, Developer has sought and agreed to construct two (2) One Bedroom Unit(s) (25% of the total Units in the Development) to be affordable to Very Low and Low Income Households (the "Affordable Units") for the Density Bonus Term as defined below. E. Under Density Bonus Law, Developer has applied for, and the City has granted, the following regulatory incentives in exchange for the Developer's provision of the Affordable Units: (i) A 35% density bonus on the full site for a total of 38 residential units; an addition of 10 units above the allowed base density of 28 residential Units; two (2) Units pursuant to the 1999 Agreement and eight (8) additional Units pursuant to this Agreement (the "Density Bonus"). Any Density Bonus, Concessions, Waivers, or Parking Reduction incorporated into the Development are collectively "Incentives." F. Density Bonus Law requires the City to ensure, and the Developer to agree to, continued affordability of the Affordable Units for the Density Bonus Term. To ensure their continued affordability for the Density Bonus Term, this Agreement shall be executed and recorded against the Property prior to issuance of any building permits for the Development. The Agreement will be executed on 980 Lincoln Avenue to differentiate it from the 1999 Agreement executed on 960 Lincoln Avenue. G. Developer acknowledges and agrees that the Project Approvals provided adequate and proper notice pursuant to Government Code Section 66020 of Developer's right to protest any requirements for fees, dedications, reservations, and other exactions as may be included in this Agreement, that no protest in compliance with Section 66020 was made within ninety (90) days of the date that notice was given, and that the period has expired in which Developer may protest any and all fees, dedications, reservations, and other exactions as may be included in this Agreement. H. Marin Housing Authority is authorized by law to participate in programs that provide housing for households of very low, low, and moderate income. The City has contracted with Marin Housing Authority to administer the City's affordable housing program. NOW THEREFORE, it is hereby agreed by and between the Parties hereto as follows: Page 2 AGREEMENT The Parties agree and acknowledge that the above recitals are true and accurate, and are incorporated into this Agreement by this reference. 1. Definitions and Exhibits 1.1 Definitions. In addition to those terms defined in the Recitals and in other sections of this Agreement, the following terms are specially defined for the purposes of this Agreement: A. "Affordable Rent' is the maximum allowable Rent for an Affordable Unit that does not exceed: (i) for Very Low Income Households, is equal to or less than one -twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Median Income, as adjusted for Assumed Household Size; (ii) for Low Income Households, is equal to or less than one -twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of Area Median Income; and (iii) for Median Income Households, is equal to or less than one -twelfth (1/12) of thirty percent (30%) of one hundred percent (100%) of Area Median Income, as adjusted for Assumed Household Size. Affordable Rent cannot exceed the rent for Market Rate Units. An example of the calculations and methodology to be used to determine the Affordable Rent is illustrated in Exhibit B attached hereto. B. "Area Median Income" means median yearly income in Marin County as published pursuant to California Code of Regulations, Title 25, Section 6932, or successor provision. C. "Assumed Household Size" shall be based on presumed maximum occupancy levels of one person in a studio apartment, two (2) persons in a one -bedroom unit, three (3) persons in a two-bedroom unit, and one additional person for each additional bedroom thereafter. D. "Density Bonus Term" is the period that commences when the City, Marin Housing Authority, and the Developer record the Regulatory Certificate described in Section 5 and that terminates fifty- five (55) years after the date of the recordation of the Regulatory Certificate. E. "Eligible Household" is a household which has been determined to be eligible to rent an Affordable Unit in compliance with Density Bonus Law and this Agreement. F. "Household Income" is the combined, gross, pre-tax income of all occupants of the applicant household, including the income of any co -signors on the lease. G. "Low Income Affordable Unit' means an Affordable Unit reserved for occupancy by Low Income Households at an Affordable Rent. H. "Low Income Household" means a household whose Household Income does not exceed the lower income limits applicable to Marin County, adjusted for household size, as published annually by the California Department of Housing and Community Development; generally a household with a Household Income between fifty percent (50%) and eighty percent (80%) of Area Median Income, adjusted for actual household size. "Market Rate Units" are Units which are not Affordable Units. Page 13 J. "Median Income Household" means a household whose Household Income does not exceed the Area Median Income applicable to Marin County, adjusted for household size, as published annually by the California Department of Housing and Community Development; generally a household with a Household Income between eighty percent (80%) and one hundred percent (100%) of Area Median Income, adjusted for actual household size. K. "Rent" is the total of monthly payments as calculated by the Marin Housing Authority and paid by the Tenant of an Affordable Unit for all of the following: (1) use and occupancy of the Affordable Unit and land and all facilities associated with the Affordable Unit, including but not limited to parking, bicycle storage, storage lockers, and use of all common areas; (2) any separately charged fees or service charges assessed by the Developer which are required of all tenants of Units in the Project, except security deposits; (3) an allowance for utilities paid by the Tenant as established by the Marin Housing Authority, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service or cable TV; and (4) any other interest, taxes, fees or charges for use of the land or associated facilities that are assessed by a public or private entity other than the Developer and paid by the Tenant. L. "Tenant" is a household occupying an Affordable Unit pursuant to a valid lease or rental agreement with the Developer. M. "Tenant Lease" is defined in Section 3.4. N. "Very Low Income Household" means a household whose Household Income does not exceed the very low income limits applicable to Marin County, adjusted for household size, as published annually by the California Department of Housing and Community Development; generally a household with a Household Income at or below fifty percent (50%) of Area Median Income. O. "Very Low Income Affordable Unit" means an Affordable Unit reserved for rent by Very Low -Income Households at an Affordable Rent. 1.2 Exhibits. The following exhibits are attached to and incorporated into this Agreement: Exhibit A Legal Description of the Property. Exhibit B Unit Description and Sample Calculation of Affordable Rent. Exhibit C Household Income Certification. Exhibit D Certificate of Continuing Compliance. Exhibit E Notice of Commencement of Density Bonus Term 2. Construction of Development and Affordable Units 2.1 Satisfaction of Affordable Housing Requirement. The Affordable Housing Requirements shall be satisfied with respect to the Property if: (a) the Developer constructs or causes to be constructed the Affordable Units and (b) Developer offers all dwelling units in the Development for rent and rents the Affordable Units to an Eligible Household in compliance with Section 3 below. 2.2 Affordable Units. To satisfy Developer's affordable housing requirements for the Development under Density Bonus Law and the Density Bonus Ordinance, at initial occupancy of the Page 14 Development, Developer shall rent one Affordable Unit to a Very Low Income Household and one unit to a Low Income Household at Affordable Rents, as specified in Section 3 below, for the Density Bonus Term. 2.3 Location of Affordable Unit. The One Bedroom Affordable Units shall be constructed on the Property in the location(s) shown or described in Exhibit B attached hereto. 2.4 Aaoearance, Size, Bedroom Count and Tenure. A. Aoaearance and Maintenance of Affordable Units,. The design, square footage, appearance, and general quality of the Affordable Units shall be compatible with those of the Market Rate Units and consistent with the designs provided for the Project Approvals. Developer shall allocate and assign parking spaces, bicycle storage, storage lockers, and other spaces reserved for use by individual Units to the Affordable Units on the same basis as for the Market -Rate Units, and Tenants of the Affordable Units shall have equal access to the Development's common areas as is given to the residents of the Market -Rate Units, but any fee charged for use of common areas or for spaces reserved for individual Units shall be included in the Tenant's Rent. Once completed, the Affordable Units shall not be kept vacant or used for any purpose except for residential use and shall be marketed concurrently with the Market -Rate Units and offered for rent to Eligible Households at Affordable Rents. B. Location and Characteristics of Affordable Units,. Developer shall provide the Affordable Units in the Development in accordance with the schedule shown in Exhibit B. As provided in Exhibit B, the Affordable Units shall have a bedroom mix equivalent to the bedroom mix of the Market -Rate Units, except that the Developer may elect to provide the Affordable Units with more bedrooms. If more than one Affordable Unit is to be provided, the affordable units shall be disbursed within the Development. C. Chance in Location of Affordable Units,. If, after recordation of this Agreement, Developer desires to change the location of any Affordable Unit within the Development, Developer shall submit a written request for such change to the Director, who may approve such request provided that any relocated Affordable Unit shall be comparable to those listed in Exhibit B and shall contain the same number of bedrooms. 2.5 Schedule for Developing Affordable Units. Developer shall provide the Affordable Units pursuant to the following schedule: A. Prior to issuance of any building permit for the Development, this Agreement shall be duly executed by the City, Marin Housing Authority, and the Developer and recorded against the Property. B. Building permits for the Affordable Units shall be issued concurrently with building permits for the Market Rate Units, such that, of the units that have been issued building permits, at least ten percent (10%) shall be Affordable Units. C. Certificates of occupancy or final inspections for the Affordable Units shall be issued concurrently with certificates of occupancy or final inspections for the Market Rate Units, such that, of the units that have been issued certificates of occupancy or final inspections, at least ten percent (10%) shall be Affordable Units. Page 15 3. Rent ReEulatory Provisions The provisions of this Section 3 are applicable until the expiration of the Density Bonus Term. 3.1 Affordabilitv and Occupancv Covenants. A. Occuoancv Requirements. Subject to the provisions of Section 3.2 below, the Affordable Units shall be rented to and occupied by or, if vacant, available for occupancy by, Very Low and Low Income Households. The Affordable Units shall not be kept vacant or used for any purpose except for residential use and, when vacant, shall be offered for rent to Eligible Households at Affordable Rent. B. Allowable Rent. Subject to the provisions of Section 3.2 below, the maximum Rent charged to Tenants of the Affordable Units shall not exceed Affordable Rent. C. Approval of Rents. Initial Rent for the Affordable Units shall be approved by the Marin Housing Authority prior to occupancy at the time the Developer submits the marketing plan required by Section 4.2 below. Marin Housing Authority shall review all proposed Rent increases to determine whether the proposed increases are consistent with the provisions of this Agreement. Developer shall certify to Marin Housing Authority that Developer is not charging any fee other than Affordable Rent to Tenants of the Affordable Units for all of the components of Rent defined in Section 1.1 above. D. Schedule of Affordable Rents. The City has provided the Developer with a schedule of Affordable Rents for the Affordable Units in effect on the date of this Agreement, set forth in attached Exhibit B. Marin Housing Authority annually determines Affordable Rents (including utility allowances) based on changes in Area Median Income and utility allowances, and Developer shall obtain a copy of the schedule from Marin Housing Authority. 3.2 Increased Income of Tenants. A. Increase from Very Low Income to at or below Low Income,. If, upon annual recertification of a Tenant's Household Income, the Developer determines that a former Very Low Income Household's Income has increased and exceeds the qualifying income for a Very Low Income Household, but does not exceed the qualifying limit for a Low Income Household, then, upon expiration of the Tenant's lease and after thirty (30) days written notice to the Tenant, the Tenant's rent may be increased to Affordable Rent for Low Income Households. B. Increase from Very Low Income or Low Income to at or below Median Income,. If, upon annual recertification of a Tenant's Household Income, the Developer determines that a former Very Low Income or Low Income Household's Income has increased and exceeds the qualifying income for a Very Low Income or Low Income Household, but does not exceed the qualifying limit for a Median Income Household, then, upon expiration of the Tenant's lease and after thirty (30) days written notice to the Tenant, the Tenant's rent may be increased to Affordable Rent for Median Income Households. The rent calculation will be based on 30% of the Median Income for Household - C. Increase from Very Low Income. Low Income. or Median Income to Above Area Median Income. If, upon recertification of a Tenant's Household Income, the Developer determines that the Tenant's Household Income has increased and exceeds the qualifying income for a Median Income Household, then the Tenant shall be given written notice that: (i) Tenant's Rent shall be increased sixty (60) days after the Page 16 date in the notice to an amount to be determined by Developer but not to exceed Rent for a comparable Market -Rate Unit; and (ii) Tenant shall vacate the Affordable Unit six (6) months from the date of the notice or upon expiration of the Tenant's lease, whichever is later. If, prior to the date by which the Tenant must vacate the Affordable Unit, another Unit is vacated which is not designated as an Affordable Unit and is of appropriate bedroom size, the Developer may, at the Developer's option, request the City to approve a change in the location of the Affordable Unit; allow the Tenant to remain in the original Unit; and designate the newly vacated Unit as an Affordable Unit if approved by the City. 3.3 Agreement to Limitation on Rents. The Development has received Incentives from the City under the Density Bonus Law and the Density Bonus Ordinance, which is a form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a) (2) of the Costa -Hawkins Act provide that, where a developer has received such assistance, certain provisions of the Costa -Hawkins Act do not apply if a developer has so agreed by contract. The Developer hereby agrees to limit Rents as provided in this Agreement in consideration of the Developer's receipt of the Incentives and further agrees that any limitations on Rents imposed on the Affordable Units are in conformance with the Costa -Hawkins Act. The Developer further warrants and covenants that the terms of this Agreement are fully enforceable. 3.4 Lease Provisions. The Developer shall use a form of Tenant lease (the "Tenant Lease") approved by the City for the Affordable Units. The City shall not withhold approval from any form that: A. provides that the Tenant's Household Income is subject to annual certification; B. provides for termination of the lease for failure: (1) to provide any information required under this Agreement or reasonably requested by the Developer to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, as an Eligible Household in accordance with this Agreement, or (2) to qualify as an Eligible Household as a result of any material misrepresentation made by such Tenant with respect to the Household Income computation or certification; C. provides that the Rent may not be raised more often than once every twelve (12) months. The Developer will provide each Tenant with at least sixty (60) days written notice of any increase in Rent applicable to such Tenant; D. prohibits subleasing of the Affordable Unit or any portion of the Affordable Unit or any spaces reserved for the use of the Tenant, contain nondiscrimination provisions, and includes the Tenant's obligation to inform the Developer of any need for maintenance or repair; E. includes reasonable rules of conduct consistent with California law; F. allows termination of the tenancy only for an increase in Tenant's Household Income above qualifying income for Low Income Households or for good cause, including violation of the terms and conditions of the Tenant Lease, violations of applicable federal, state, or local law, or other good cause; G. includes at Developer's option, the obligation for Tenant to provide a security deposit not exceeding one months' rent. Page 17 Marketing. Income Certification. Reporting, and Annual Fee. 4.1 Required Citv Approvals. At least ninety (90) days before any Units in the Development receive a final inspection or certificate of occupancy, the Developer shall notify City and the Marin Housing Authority of the availability of the Affordable Units and provide to the City and Marin Housing with the proposed form of Tenant Lease to confirm conformance with the provisions of Section 3.4 above; and proposed Affordable Rent for the Affordable Units, all for City and Marin Housing Authority review and approval. The Affordable Units shall be marketed concurrently with the marketing of the Market -Rate Units. 4.2 Marketing. A. Prohibition on Discrimination in Tenant Selection (Section 8 Vouchers and Certificate, Holders). The Developer will review applications from prospective tenants of the Affordable Units, on the same basis as all other prospective tenants, of persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act or any successor. The Developer shall not apply selection criteria to Section 8 certificate or voucher holders that are more burdensome than criteria applied to all other prospective tenants for the Affordable Units, nor shall the Developer apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of Affordable Units by such prospective tenants. B. Marketing Materials. The marketing materials shall include information regarding the amount of any application screening fee to be imposed by Developer, and information on the conditions and restrictions applicable to occupancy of the Affordable Units, current Affordable Rent, maximum qualifying Household Income for an Eligible Household, requirement for annual Household Income recertification, preferences, and requirement to vacate the Affordable Unit if the Tenant's Household Income exceeds the maximum qualifying income. 4.3 Income Certification. Upon initial occupancy and annually thereafter, the Developer will obtain, complete and maintain on file Household Income certifications (Exhibit C), or a similar form as may be approved by the City, for each Tenant renting an Affordable Unit. Developer shall make a good faith effort to verify that the Household Income certification provided by a Tenant is accurate by taking two or more of the following steps as a part of the verification process for all members of the Tenant household age eighteen (18) or older: (a) obtaining a minimum of the three (3) most current pay stubs; (b) obtaining an income tax return for the most recent tax year including copies of any income tax returns where the Tenant is claimed as a dependent; (c) conducting a credit agency or similar search; (d) obtaining the three (3) most current savings and checking account bank statements; (e) obtaining an income verification form from a current employer; (f) obtaining an income verification form from the Social Security Administration and/or the California Department of Social Services if an adult member of the Tenant's household receives assistance from either of such agencies; or (g) if the Tenant is unemployed and has no such tax return, obtain another form of independent verification. The Developer shall collect copies of annual household income certifications, maintain that form on file for a minimum of five years and permit the City or their designee to inspect the income certification records at the Developer's office upon three days' notice. The Developer shall provide any additional information reasonably requested by the City or its designee. 4.4 Annual Report. The Developer shall submit to the City and Marin Housing Authority by June 30 of each year a report, in a form prescribed by or otherwise acceptable to the City, verifying compliance by Developer with the terms of this Agreement and certified as correct by the Developer under penalty of perjury. Page 18 Exhibit D Certification of Continuing Compliance, or a similar form as may be approved by the City, may be used to meet this requirement. The annual report shall include without limitation the following information: A. Certifications of eligibility for all Tenants of the Affordable Unit at the time of initial occupancy and upon the yearly anniversary of their continuing tenancies. B. Verified Household Income statements. Developer shall retain in the Tenant's file all verifications of Tenant's Household Income. C. Number of persons in each Affordable Unit. D. Certification of the amount of Rent charged for the year for the Affordable Unit. E. Certification that Developer is not charging any fee other than Affordable Rent to Tenants of the Affordable Unit for all of the components of Rent defined in Section 1.1 above. F. Other information reasonably required by the City. 4.5 Other Reoorts. Within fifteen (15) days after receipt of a written request, Developer shall provide any other information or completed forms requested by the City or Marin Housing Authority to ensure compliance with this Agreement. 4.6 Records. The Developer shall maintain complete, accurate, and current records pertaining to the Units for five (5) years after creating such records, and shall permit any duly authorized representative of the City or Marin Housing Authority to inspect and copy such records, including the records pertaining to Household Income and household size of Tenant households. 4.7 Initial Set uo Fee The Developer agrees to pay to the City an initial set up fee in the amount of One Thousand Dollars ($1,000) to review the documents listed in this Section 4. If City expenses to review the documents are in excess of One Thousand Dollars ($1,000), the Developer upon written demand shall pay such actual excess costs. 4.8 Annual Monitoring fee. In addition to the initial set-up fee described in Section 4.7 above, the Developer agrees to pay to the City during the Density Bonus Term an annual monitoring fee payable on or before June 30 of each year as established by the City. The initial annual monitoring fee is shown on Exhibit D. 5. Commencement of Densitv Bonus Term. The Density Bonus Term shall commence on the date that the Developer, City, and Marin Housing record a Notice stating that the Affordable Units are rented and occupied by an Eligible Household. Such notice shall identify the beginning and end dates of the Density Bonus Term (Exhibit E). 6. Manasement of Proaerty and Proaerty Maintenance. 6.1 Management Responsibilities. The Developer is responsible for all management functions with respect to the Development, including, without limitation, the annual recertification of household size and Household Income (subject to review by the City or its assignee), selection of Tenants, maintenance of a waiting list for the Affordable Units, evictions, collection of Rents and deposits, maintenance, landscaping, Page 19 routine and extraordinary repairs, replacement of capital items, and security. The City and Marin Housing Authority shall have no responsibility over management of the Development. 6.2 Provertv Maintenance. The City places prime importance on quality maintenance to ensure that all developments within the City which include affordable housing units are not allowed to deteriorate due to below-average maintenance. Developer shall provide the Affordable Units with the same level and quality of maintenance, including performance of repairs and periodic replacement of fixtures, as the Market -Rate Units. The Developer agrees to maintain all interior and exterior improvements, including landscaping, on the Property in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. 6.3 Remedies. In the event that the Developer breaches any of the covenants contained in this Section 6 and such default continues for a period of ten (10) days after written notice from the City specifying the nature of the breach with respect to graffiti, debris, waste material, or a health or safety violation, or thirty (30) days after written notice from the City specifying the nature of the breach with respect to general maintenance, landscaping and building improvements, then the City, in addition to whatever other remedy it may have at law or in equity, shall have the right (but is not required) to enter upon the Property after ten (10) days' prior written notice to the Developer describing the nature of the City's intended actions and to perform or cause to be performed all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, as specified in a correction plan approved by the City, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures incurred by the City or its agents arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, plus an administrative charge equal to fifteen percent (15%) of the amount of such expenditures (the expenditures plus the administrative charges are the "Correction Costs"), if Developer does not remit the full amount of the Correction Costs to the City within thirty (30) days after City notifies Developer of the full amount of the Correction Costs. 6.4 Taxes and Assessments. Developer shall pay all real and personal property taxes, assessments, if any, and charges and all franchise, income, employment, old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that Developer shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event Developer exercises its right to contest any tax, assessment, or charge against it, Developer, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. 6.5 Damage or Destruction of Development. If all of the Units on the Property are demolished, the Incentives granted to Developer under Density Bonus Law shall terminate and the terms of this Agreement shall terminate and be of no further force and effect. Enforcement 7.1 Covenants Running with the Land. The City, Marin Housing Authority, and Developer hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall apply to and bind Developer and its heirs, executors, administrators, successors, transferees, and assignees having or acquiring any right, title or interest in or to any part of the Property and shall run with and burden such portions Page 110 of the Property until tenninated in accordance with Section 7.2. Until all or portions of the Property are expressly released from the burdens of this Agreement, each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered, and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument. In the event of foreclosure or transfer by deed -in -lieu of all or any portion of the Property prior to completion and sale of the Affordable Units, title to all or any portion of the Property shall be taken subject to this Agreement. Developer acknowledges that compliance with this Agreement is a requirement of Density Bonus Law and the Project Approvals, and that no event of foreclosure or trustee's sale may remove these requirements from the Property. 7.2 Release of Pronertv from Agreement. A. Prior to the expiration of the Density Bonus Term, Developer shall provide all notifications required by Government Code Sections 65863.10 and 65863.11 or successor provisions and any other notification required by any state, federal, or local law. B. Upon the expiration of the Density Bonus Term, City and Marin Housing Authority shall execute and record a release of the Development, the Property, and each Unit in the Development from the burdens of this Agreement within thirty (30) days following written notice from the Developer, if at the time the Developer is in compliance with all terms of this Agreement. 7.3 Default. Failure of the Developer to satisfy any of Developer's obligations under the terms of this Agreement within thirty (30) days after the delivery of a notice of default from the City will constitute a default under this Agreement and a failure to satisfy the Project Approvals and Density Bonus Law. In addition to remedies for breach of this Agreement, the City or Marin Housing Authority, if authorized by the City, may exercise any and all remedies available to it, including but not limited to: A. withholding, conditioning, suspending or revoking any permit, license, subdivision approval or map, or other entitlement for the Development, including without limitation final inspections for occupancy and/or certificates of occupancy; B. instituting against the Developer, or other parties, a civil action for declaratory relief, injunction or any other equitable relief, or relief at law, including without limitation an action to rescind a transaction and/or to require repayment of any funds received in connection with such a violation; C. where one or more persons have received financial benefit as a result of violation of this Agreement or of any requirement imposed under the Density Bonus Law, instituting legal action to recover as necessary, a penalty in any amount up to and including the amount of financial benefit received, in addition to recovery of the benefit received; D. requiring the Developer or his/her successors in interest to the Property to pay the City Rent or any other payment received by the Developer for the Affordable Unit from the date of any unauthorized use of the Affordable Unit or in excess of Affordable Rent; and E. Any other means authorized under the City of San Rafael Municipal Code, Density Bonus Law, or any other federal or state statute. Page111 7.4 Remedies Cumulative. No right, power, or remedy given to the City or Marin Housing Authority by the terms of this Agreement or Density Bonus Law is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of this Agreement, Density Bonus Law, or by any statute or ordinance or otherwise against Developer and any other person. Neither the failure nor any delay on the part of the City or Marin Housing Authority to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City or Marin Housing Authority of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. 7.5 Attornev's Fees and Costs. If either party initiates an action to enforce its rights under the Agreement, and elects at the initiation of the action to seek the recovery of attorneys' fees, the prevailing party in such an action shall be entitled to an award of reasonable attorneys' fees and costs in addition to any other recovery under this Agreement. 8. General Provisions 8.1 Anaointment of Other Agencies. At its sole discretion, the City may designate, appoint or contract with any other public agency, for-profit or non-profit organization to perform some or all of the City's obligations under this Agreement. 8.2 Records. Developer shall retain all records related to compliance with obligations under this Agreement for a period not less than five (5) years from the date of origination of such records, and make them available to City or Marin Housing Authority employees or others designated by the City for inspection and copying on five (5) business days' written notice. The City and Marin Housing Authority shall be entitled to monitor compliance with this Agreement and Density Bonus Law, and Developer shall cooperate with City monitoring, including obtaining Tenant Rent and Household Income verification upon request of the City. 8.3 Nondiscrimination. The Affordable Units shall be available for occupancy to members of the general public. The Developer shall not give preference to any particular class or group of persons in renting the Affordable Units, except to the extent that the Affordable Units are required to be rented to Eligible Households and as required by this Agreement, including, without limitation, as set forth in Section 3 above; provided, however, 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, source of income (e.g., SSI), age (except for lawful senior housing), ancestry, or disability, in the leasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall the Developer or any person claiming under or through the Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of Tenants of any Unit or in connection with the employment of persons for the construction, operation and management of the Development. 8.4 Hold Harmless. Developer will indemnify and hold harmless (without limit as to amount) City and Marin Housing Authority and their elected officials, officers, employees and agents in their official capacity (hereinafter collectively referred to as "Indemnitees"), and any of them, from and against all loss, all risk of loss and all damage (including expense) sustained or incurred because of or by reason of any and all claims, demands, suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of or relating in any manner to the Development, the Affordable Units, or Developer's performance or non-performance under this Agreement, including claims pursuant to California Labor Code Section 1720 et seq., and shall protect and defend Indemnitees, and any of them with respect thereto, except to the extent arising from the active negligency, sole Page 112 negligence or willful misconduct of the Indemnitees. The provisions of this Section shall survive expiration or other termination of this Agreement or any release of part or all of the Property from the burdens of this Agreement, and the provisions of this Section shall remain in full force and effect. 8.5 Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to the Party to receive such notice at the addressed set forth below: To the City: To the Developer: To Marin Housing Authority: City of San Rafael Community Development Department 1400 Fifth Avenue San Rafael, Ca 94915-1560 Clocktower Building, LLC 960 Lincoln Avenue San Rafael, CA 94901 Marin Housing Authority Executive Director 4020 Civic Center Drive San Rafael, CA 94903-4173 Any party may change the address to which notices are to be sent by notifying the other parties of the new address, in the manner set forth above. 8.6 Integrated Agreement. This Agreement constitutes the entire Agreement between the Parties and no modification hereof shall be binding unless reduced to writing and signed by the Parties hereto. 8.7 Each Partv's Role in Drafting the Agreement,. Each Party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither Party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the Agreement. 8.8 Amendment of Agreement; Aoarovals and Consents. A. Amendments to this Agreement, including any proposal to change any condition of the Project Approvals, shall be subject to the review and approval of the decision-making body which approved the Development. No amendment may be approved that is inconsistent with State law, the San Rafael Municipal Code, or any adopted affordable housing guidelines. Upon approval, a new Agreement or amendments to this Agreement, as appropriate, shall be executed and recorded. B. The City has authorized the City Manager to execute this Agreement and has authorized the City Manager to deliver such approvals or consents as are required by this Agreement. Marin Housing Authority has authorized the Executive Director to execute this Agreement and has authorized Executive Director to deliver such approvals or consents as are required by this Agreement. Any consents or approvals required under this Agreement shall not be unreasonably withheld or made, unless it is specifically provided that a sole discretion standard applies. Page 113 C. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of the City, Marin Housing Authority, and the Developer. 8.9 No Claims. Nothing contained in this Agreement shall create or justify any claim against the City or Marin Housing Authority by any person that Developer may have employed or with whom Developer may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the Property or the construction of the Development or construction of the Affordable Units. 8.10 Applicable Law and Venue. This Agreement shall be governed by California law. Venue for any dispute arising out of this Agreement shall be Marin County. 8.11 Waivers. Any waiver by the City or Marin Housing Authority of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City or Marin Housing Authority to take action on any breach or default of Developer or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Developer to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City or Marin Housing Authority to any act or omission by Developer shall not be construed to be consent to any other or subsequent act or omission or to waive the requirement for Marin Housing Authority's or the City's written consent to future waivers. 8.12 Title of Parts and Sections. Any titles of the sections, subsections, or subparagraphs of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions. 8.13 Multiple Originals: Counterpart. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. 8.14 Recording of Agreement. This Agreement shall be recorded against the Property in the Official Records of the County of Marin prior to the recordation of any parcel map or final subdivision map or issuance of any building permit for the Development, whichever occurs first. 8.15 Severability. In the event any limitation, condition, restriction, covenant, or provision contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction, the remaining portions of this Agreement shall nevertheless be and remain in full force and effect. 9. Exhibits. The following exhibits are attached to this Agreement: Exhibit A Legal Description of the Property. Exhibit B Unit Description and Sample Calculation of Affordable Rent. Exhibit C Household Income Certification. Exhibit D Certificate of Continuing Compliance. Exhibit E Notice of Commencement of Density Bonus Term Page114 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. DEVELOPER: LIM MARIN HOUSING AUTHORITY: Housing Authority of the County of Marin, a public body, corporate and politic, created under the Housing Authority the of California By - — Lewis A. Jordan xecutive Director Page 115 CITY: City of San Rafael, a municipal corporation By: ti _.. Jim Schu ty Manage APP R VED AS TO FORM: By: Robert F. Epstein, CityA omey A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF MARIN On Alk. 211 &17 , before me, & Notary Public, personally appeared TQtjQ I(/ who proved to me on the basis of satisfactory evidence to be the persons whose nam(s) is/4& subscribed to the within instrument and acknowledged to me that he/s�e/tkey executed the same in his/hpt/thfir authorized capacity(ie), and that by his/haf/tWir signature(4 on the instrument the person(jr), or the entity upon behalf of which the personA acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. PEDRO Commission 2051879 1 Conpnissfon 2051879 Z -s Notary Public - California Marin County My Comm. Expires Dec 14, 2017 Page 116 �-� f�d -- Name: Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF MARIN O,uS� 2Q� 201', before me, ol S Kariav► , Notary Public, personally appe ed L-c-wl S A. 3orA" , who proved to me on the basis of satisfactory evidence to be the person(g) whose name(jr) is/aFe subscribed to the within instrument and acknowledged to me that he/shek�y executed the same in his/h*"Whei�r authorized capacity(ies), and that by his/herhfieir signature(0)on the instrument the person(c), or the entity upon behalf of which the person($) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Name: Notary Public CAROL J. KAZARIAN Commission # 2070835 z =m Notary Public -California D Z Marin County My Comm. Expires Jun 15, 2018 Page 17 EXHIBIT A LEGAL DESCRIPTIO\ OF THE PROPERTY teal prop- q in the City of Sari Rafael; County 0"AfFriii, Stato rfCalifornia, de—ribv�d as follow , THAT;'t�i:.`l:`f0;�1 ofllocle 48 �f tlle�:it,{ of`Sa�Yaia�l, t=.'•ounty of.l�i2a'itt, �ttiie iifC�l=4rni�, aS sllo;vn. on t'ne Map of the Tows: ofS'Nii it.afael, filed Octobv. 4,1$73 inRick- I t`IvIOLs; Pall rl, lviaritt Couirh� Reoo.fds, dcscriWd ;�s follm s; 13-E(,T,--4N'? h\TG at the intersectioit of the Southerly line ofF-0tirtlt Streot witli the E-astuly .line of Reta llm (now LinMfn}Avcrvw, as shovm on said .map; #heacy easterly alons said;Souflt line of fourth Sirmi 120 feet to fhe Northm.tet corner of the }mild convoyed ta.A=ie. 0. Nichols by Deed elgtcd Auat:st 17, lei?, reworded iii $oolc 14- of Deeds, at pap 313,Kim County Records; thence Soufhealy aloii� the Westerly line, pf laud so bonvoy'-d 90 Feet to +lte Soi ow.'est Gomer thereof; thence Rasterly along tltc Southerly lino of said MoMs 39 feet to tiro Saiitli ast cirYit thowort, thence Sot:th along Elle We8t line conveyed to 11C. Whiting uy Deed recorded Iii Book "Y" of Docds,.at Phgt; 258, Marin County Records, 14 feet to the Southwest corder thereat'; thetioe Lnsterly along the land sa crmayed to Wliiting 50 -Poet to the ;gest this of. Tainalpais Awn.l -,; 41011M Soufh.on tlt� West. line of Tamalpais Awnue, PM feet, therica VMa 197,45 -A!V1 more or less, to 8-Pointill fh;1, ast line ofPetaluma (now Lincoln) Avenue, which is I72 feet Nurtll of tlteinterseatim with tho Not1h IinL ofThird Streerf «iid llicnce North oil the �a"aE line of f eta Una Avontic, 127 foet, neon: or leas, to the tin itt of l -,ginning. EXCEPT the Northerly 411e0 thereofas exvcpted in Deeds of Record for flip, 1videniilg of fourth Street, APN: 011.-2-75-t)1 A -I 885101L049494.3 3;91'_017 EXHIBIT B UNIT DESCRIPTION AND SAMPLE CALCULATION OF AFFORDABLE RENT TOTAL NUMBER OF VERY LOW AND LOW INCOME UNITS: Two units of one bedrooms. One unit affordable to households at 50% of Area Median Income and one unit affordable to households at 60% of Area Median Income. UNIT LOCATION -DESCRIPTION: Developer to choose the units annually. TOTAL NUMBER OF VERY LOW AND LOW INCOME UNITS: One unit affordable to households at 50% of Area Median Income and one unit affordable to households at 60% of Area Median Income. ALLOWABLE RENT CALCULATION: Housing expense includes utility allowance per schedule below (allowances from Marin Housing). Very Low Income is 50% of Area Median Income, Low Income is 60% of Area Median Income and Moderate Income is 80% of Area Median Income. The applicable household and unit sizes are listed below. Actual households can exceed the household size indicated but the rental calculation will not change. For example, using the 2017 Area Median Income such calculation would be as follows: The One Bedroom Housing Expense shall not exceed 1/12 of 30% of 50% for very low income and 1/12 of 30% of 60% for low income. The maximum qualifying tenant income is 50% of Area Median Income for very low income and 60% of Area Median Income for low income or a lesser income as defined by the Developer. Affordability Level 50% Household Size 2 persons Unit Type One Bedroom Median Income $92,250 Affordability Level $46,150 Monthly Income $3,846 30% of Income $1,154 No reduction for Monthly Utility Allowance. Utilities included in the rent. $ 0 Allowable Rent $1,154 L- In 60% 2 persons One bedroom $92,250 $55,350 $4,613 $1,384 $ 0 $1,384 EXHIBIT C HOUSEHOLD INCOME CERTIFICATION SAN RAFAEL BELOW MARKET RATE RENTAL MONITORING PROGRAM Project Name: Clocktower II Date: APARTMENT NUMBER # NUMBER OF BEDROOMS MONTHLY RENT $ OCCUPANT/HOUSEHOLD NAME: TOTAL GROSS ANNUAL INCOME OF ELIGIBLE HOUSEHOLD: Total household income is the combined, gross, pre-tax income of all occupants of the household including any co -signors on the lease. Income includes all wages, salaries, governmental assistance, as reported as gross income for federal income tax; or verified by pay stubs, bank account records, governmental assistance records or other relevant documentation. Attached hereto are the tax returns, pay stubs or other evidence of the income of the persons listed below: Name of household Relationship to Age Place of Employment/Source of member head of household income I/We understand and have read and answered fully, frankly and personally each of the above questions under penalty of perjury and do hereby swear they are true. Occupant -Head of Household Date: PROPERTY OWNER TO MAINTAIN THIS DOCUMENT FOR FIVE YEARS FOR INSPECTION PURSUANT TO AGREEMENT WITH THE CITY k e L) k S --- § < /0 -- 0 y _\ _ S \ r ± Cl) k f\ \§ _� k: C E E E q/{ O- 5 77mmm =e�mn §cn§------- _ c LL / E{ - £ § _� § � m / 7 & /m£ m _ ca o < . m /±/ k} CD --�- c 22 bi :3a) c % In 2 % u < 0 E0m °° / CL CO \ z 7 L �. z ± = ) / R § \ k ------ :3 cis < e I= °- c 6 z a 0 = <G 22\ @ \ ■cam uR #- u cu S�z <w �tr> c § £ }/ ww R3 ��� �� 0 \ _2§k C, % y = 7 K % § < < £ inz/< ° § 2 S 0 2Ir cu K � F k 0 U) � u�a= a u- ® b 2 S k ------- .. b = _ { \ c 2 �\ƒ / R c\ G m )%2 �k e I03 D Q a-1 = c 3§ $ o £ 2 = K Ir / k § k 2 < / \ / § 3 ±�� ------- = - oFu m %/ § k k ( 0: / = k - c 2 � � = 5 ° D u \ « / G a ca _ 22§¥�� 2 / 22 § E 0 cb}I %kms ------- a 2 /§ U= § 2 c n t 2 ® _CD ®c; a m :=o=. § d 7 / f cm :3 ¥ § f t42 a2 o c u 0 =E •- / 222 ----------- 0 &f \ 3% co ) ° 2@ / 2 S k - � \ 2 2 / a) /§/ U).0 k \ � \ k / \ k \ \ c C: = I §\ S2k L jc t o E c\§ »EEC Ef \ § cu k CO cn_ ' / E $ \k®�\�-------- - _ p ƒ CD cn G 2§ 2 c S) f 3 2 g / 3 U t � \:-0 \ < QEO<Re= 0 CL z :-0 �� ��� « 0<2 0 EXHIBIT E NOTICE OF COMMENCEMENT OF DENSITY BONUS TERM PROJECT NAME: Clocktower II DATE: ADDRESS: 980 Lincoln Avenue OWNER: Clocktower Building,LLC Tommy Kennedy The "Density Bonus Term" as defined in that certain Regulatory Agreement and Declaration of Restrictive Covenants, recorded on as Document , in the Office of the Marin County Recorder and pertaining to the real property located within the City of San Rafael, State of California, and described in Exhibit A attached hereto, commenced on , the date that the Affordable Unit(s) were rented and occupied by an Eligible Household. The Project Period will expire 55 years from the date of this notice on , 2072. CITY OF SAN RAFAEL ATTEST BY: NAME: TITLE: City Clerk OWNER BY: NAME: TITLE: MARIN HOUSING BY: NAME: TITLE: A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF MARIN On 9 l 1511 'V 14 , before me, G - B �G—I APNG , Notary Public, personally appeared fir/ ie40-f -I— , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)Vare subscribed to the within instrument and acknowledged to me that/she/they executed the same iRf�;/her/their authorized capacity(ies), and that bya/her/their signatures) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Name: C - '&F/ +PNC Page 18 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: CDD Project Manager: Paul Jensen Extension: 5064 Contractor Name: Marin Housing Contractor's Contact: Stephanie Lovette Contact Email: slovette@marinhousing.org ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor. N/A b. Email contract (in Word) with attachments to City Atty c/o 9/5/17 Laraine.Gittens@cityofsanrafael.org. 2 City Attorney a. Review, revise, and comment on draft Click here to agreement. enter a date b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor. 3 Project Manager Forward at least two originals of final agreement to Click here to contractor for their signature. enter a date. 4 Project Manager When necessary, * contractor -signed agreement agendized for Council approval. Date of Council approval: Click here to *PSA > $20,000; or Purchase > $35,000; or enter a date. Public Works Contract > $125,000 PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City 9/5/17 Attorney with printed copy of this routing form. 6 City Attorney Review and approve hard copy of signed agreement 9ls/1-7 7 City Attorney Review and approve insurance in PINS and, and bonds (for Public Works Contracts) 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and l forwards copies to Project Manager.