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CD BMR Agreement; First Amendment Village at Loch Lomond Marina (unsigned)DRAFT DATE: April 10, 2020 EXHIBIT A No recording fee per G.C. 27383 Recording Requested by: City of San Rafael When Recorded Return to: City of San Rafael Attn: Lindsay Lara, City Clerk 1400 Fifth Avenue San Rafael, CA 94901 FIRST AMENDMENT TO BELOW MARKET RATE HOUSING AGREEMENT (Ownership Units) Development Name: Village at Loch Lomond Marina Affordable Unit Property Address: Loch Lomond Marina, San Rafael, California Developer: Marina Village Associates, LLC, a Delaware limited liability company, as successor -in -interest to San Rafael Marina LLC, a California Limited Liability Company, or any future successor -in -interest THIS FIRST AMENDMENT to Below Market Rate Housing Agreement is made and entered into this __ day of , 2020, 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 MARINA VILLAGE ASSOCIATES, LLC, a Delaware limited liability company, as successor -in - interest to San Rafael Marina, LLC, a California limited liability company ("SRM"), or any future successor -in -interest ("Developer"), collectively the "Parties," with reference to the following: A. Developer is the developer of a mixed-use development known as the Village at Loch Lomond Marina in the City of San Rafael, County of Marin, State of California (the "Development'). The City granted approval of the Development on August 6, 2007, approving the construction of eighty-one (81) residential units and numerous other structures and amenities. B. Marin Housing Authority is authorized by law to participate in programs that provide housing for households of very low, low, and moderate income and is by experience qualified to screen and determine the eligibility of applicants for very low, low, and moderate -income housing. C. The City has adopted affordable housing requirements contained in the Zoning Ordinance Section 14.16.030 of the San Rafael Municipal Code (the "Affordable Housing Requirements"). Pursuant to Section 14.16.030, and as a condition of approval of the Development, the City required, and the City, Marin Housing Authority. and SRM entered into, that certain "Below Market Rate Housing Agreement' dated July 1, 2008 and subsequently recorded in the Official DRAFT DATE: April 10, 2020 Records of the County of Marin on August 14, 2008, as Document No. 2008-003836 (the BMR Agreement"). D. Pursuant to the BMR Agreement, the Developer agreed to provide seventeen (17) of the allowed residential units on the site as below market rate ("BMR") units. E. The Developer has commenced construction of the Development in two phases. As of the date of this First Amendment, Developer has completed construction of forty-four (44) of the residential units, including eleven (11) of the seventeen (17) BMR units required by the BMR Agreement. F. The Parties hereto desire, by this First Amendment, to modify the terms of the BMR Agreement as set forth herein. NOW THEREFORE, it is hereby agreed by and between the Parties hereto as follows. AGREEMENT Section 1. Paragraph 1 of the BMR Agreement is hereby amended to read in its entirety as follows: 1. The Developer agrees that eleven (11) dwelling units within the project approved by the City for the property described in Exhibit "A" to this BMR Agreement will be sold to low- and moderate- income households in accordance with the terms and pursuant to the procedures set forth in this Agreement. Said dwelling units are identified in Exhibit "1" attached to this First Amendment and incorporated herein by reference, subject to the amendments provided in Section 4 of this First Amendment. Said dwelling units are hereafter referred to as "the Affordable Units". Section 2. Paragraph 2 of the BMR Agreement is hereby amended to read in its entirety as follows: The Developer agrees that the Affordable Units, consisting of nine (9) attached townhouses and two (2) detached cottages, shall be dispersed throughout Phase 1 of the Development as shown in Exhibit 2 attached to this First Amendment and incorporated herein by reference. The Affordable Units shall be of the same general design and exterior appearance as the Market Rate Unit, of comparable quality of construction and with the same number of averaged bedrooms as the Market Rate Units. Interior features of the Affordable Units shall be durable and of good quality. The Affordable Units shall include one, two, or three- bedroom units in the numbers and with the square footage indicated in Exhibit B to this Agreement. Section 3. Paragraph 8 of the BMR Agreement is hereby amended to read in its entirety as follows: In the event that Marin Housing Authority or its assignee declines to purchase the Unit, it may be sold by the Developer on the open market without restrictions as to the price, affordability, or future re -sale, and no deed restrictions will be placed on the property. In the event that the declination of the purchase of the Unit is the result of a separate memorandum of understanding ("MOU") between the City, the Marin Housing Authority and the Developer, such agreement shall include a mutually greed to sale price of the units on the open market without restrictions. In such events, the Developer shall pay to the City from the sale price of the Unit seventy-five percent (75%) of the difference between the net price achieved after normal selling and closing costs and the below -market -rate sales prices 2 DRAFT DATE: April 10, 2020 specific in Exhibit "B". Said sum shall be paid to the City upon close of escrow on the sale of such Unit or, if the sale is pursuant to a contract of sale, upon execution of such contract or, if the sale price is set by a separate MOU, within forty-five (45) days of execution of such an agreement, whichever shall first occur (the "Payment Date"). Notwithstandingthe foregoing. in recognition of the COVID-19 pandemic's effects on the financial markets and Executive Order N-33-20 issued by the Governor of the State of California on March 19. 2020 (the "Stay At Home Order"). the Payment Date shall be extended until forty-five (45) days after the Stay At Home Order has been lifted for Marin County. if such date is later than the Payment Date. The City shall pay to Marin Housing Authority ten peteent{kone percent L°1 of this sum for Marin Housing Authority's use in administering Below Market Rate projects, including, but not limited to, on-going BMR monitoring, legal fees and future BMR re -sales. Any such payments made to the City shall be retained by the City in a special account to be used solely for activities which it deems will facilitate the provision of housing for persons of low or moderate income. Section 4. The Exhibits to the BMR Agreement are hereby amended and shall be interpreted so as to exclude from the affordability requirement of the BMR Agreement, the following properties: VILLAGE @ LOCH LOMOND MARINA Below Market Rate (BMR) Units to be Released Address APN Lot No. & Subdivision Unit Type 25 Loch Lomond Drive 016-070-14 Lot #2, Village @ LL Marina Sub Phase 1 Flat 25 Loch Lomond Drive 016-341-04 Lot #2, Village @ LL Marina Sub Phase 1 Flat 36 Ba harbor Way 016-341-68 Lot #4, Village @ LL Marina Sub, Phase 2 Cottage 54 Ba harbor Way 016-341-68 Lot #68, Village @ LL Marina Sub, Phase 2 Townhome 58 Ba harbor Way 016-341-06 Lot #6, Village @ LL Marina Sub, Phase 2 Cottage 64 Ba harbor Way 016-341-75 1 Lot #75, Village @ LL Marina Sub, Phase 2 Townhome Section 5. Except as specifically amended in this First Amendment, all terms of the BMR Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the day and year first above written. DEVELOPER: CITY: Marina Village Associates, LLC City of San Rafael A Delaware limited liability company LN Name Title Jim Schutz, City Manager DRAFT DATE: April 10, 2020 MARIN HOUSING AUTHORITY: ATTEST: By: Lewis Jordan, Executive Director Lindsay Lara, City Clerk APPROVED AS TO FORM: Robert F. Epstein, City Attorney