Loading...
CD MOU Village at Loch Lomond Marina (unsigned)DRAFT DATE: April 7, 2020 MEMORANDUM OF UNDERSTANDING AMONG THE CITY OF SAN RAFAEL, THE HOUSING AUTHORITY OF THE COUNTY OF MARIN, AND MARINA VILLAGE ASSOCIATES, LLC REGARDING DEVELOPMENT OF THE VILLAGE AT LOCH LOMOND MARINA THIS MEMORANDUM OF UNDERSTANDING ("MOU") is entered into this day of , 2020 ("Effective Date") by and among the City of San Rafael (hereinafter referred to as "City"), the Housing Authority of the County of Marin ("Marin Housing Authority") and Marina Village Associates, LLC, a Delaware limited liability company (hereinafter referred to as the "Developer"), collectively referred to herein as the "Parties". RECITALS 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. Pursuant to Section 14.16.030, and as a condition of approval of the Development, the City required, and the Parties entered into, that certain "Below Market Rate Housing Agreement" dated July 1, 2008 and subsequently recorded in the Official Records of the County of Marin on August 14, 2008, as Document No. 2008-003836 (the "BMR Agreement"). D. The BMR Agreement requires Developer to construct seventeen (17) of the eighty-one (81) residential units in the Development as below market rate ("BMR") units. In order to facilitate completion of the Development, Developer has requested and City and Marin Housing have agreed to an amendment of the BMR Agreement to reduce the number of required BMR units from seventeen (17) to eleven (11), in consideration of Developer's payment of a mutually agreeable buyout price, on the terms set forth herein. E. Pursuant to San Rafael City Council Resolution No. 13665, City and Developer entered into a Subdivision Improvement Agreement dated January 21, 2014 for Phase 1 of the Development (hereafter, the "Phase 1 SIA"). F. Pursuant to San Rafael City Council Resolution No. 13878, City and Developer entered into a Subdivision Improvement Agreement dated January 21, 2014 for Phase 2 of the Development (hereafter, the "Phase 2 SIA"). G. Developer has commenced construction of the Development and has completed the majority of Phase 1 including subdivision improvements, and portions of Phase 2 including subdivision DRAFT DATE: April 7, 2020 improvements. In order to reduce Developer's outstanding construction and payment bonds and thereby facilitate completion of the Development, the Parties now wish to consolidate and make amendments to the Phase 1 SIA and the Phase 2 SIA, and the security therefor, to reflect the completed improvements and to provide for the completion of those improvements that still remain to be constructed. NOW THEREFORE, the Parties agree as follows: AGREEMENT ARTICLE I. AMENDMENTS TO THE BMR AGREEMENT 1. The Parties will execute a "First Amendment to Below Market Rate Housing Agreement" (hereafter, the "First Amendment") that will include the following substantive amendments to the BMR Agreement: a. Paragraph 1 of the BMR Agreement and the Exhibits to the BMR Agreement will be amended to reduce the number of onsite BMR units required in the Development from seventeen (17) to eleven (11). The following units will be released from the affordability restrictions of the BMR Agreement: VILLAGE cr LOCH LOMOND MARINA Below Market Rate (BMR) Units to be Released Address APN Lot No. & Subdivision 25 Loch Lomond Drive 016-070-14 Lot #2, Village LL Marina Sub Phase 1 25 Loch Lomond Drive 016-341-04 Lot #2, Village P. LL Marina Sub Phase 1 36 Ba harbor Way 016-341-68 Lot #4, Village LL Marina Sub, Phase 2 54 Ba harbor Way 016-341-68 Lot #68, Village LL Marina Sub, Phase 2 58 Ba harbor Way 016-341-06 Lot #6, Village LL Marina Sub, Phase 2 64 Ba harbor Way 016-341-75 Lot #75, Village LL Marina Sub, Phase 2 b. The required types of BMR units specified in Paragraph 2 of the BMR Agreement will be amended to a requirement of nine (9) attached townhouses and two (2) detached cottages. c. Paragraph 8 of the BMR Agreement, concerning the Marin Housing Authority's declination to purchase a for -sale BMR unit, will be amended as follows, shown with additions underlined and deletions struck out: 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 agreed to sale price of the units on the oven market without restrictions. In such event, the Developer shall pay to the City from the sale DRAFT DATE: April 7, 2020 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 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"). Notwithstanding the 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 ofCalifornia 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 ereen o-} one percent 0%) 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. 2. In exchange for the elimination of six BMR units from the Development, Developer will pay to the City the sum of $3,686,400 (hereafter, the "Buyout Amount"). Pursuant to the amendment to be made to Paragraph 8 of the BMR Agreement as described in l.c. of this MOU, the Parties hereby agree that the Buyout Amount is calculated based upon an agreed sales prices as follows: a. Total below market sale price for six (6) affordable units: $2,359,800; b. Total below market sale price for six (6) affordable units on the open market without restrictions: $7,500,000; c. Normal selling and closing costs of $225,000, representing three percent (3%) of the sale price of the six (6) units combined on the open market without restrictions; d. Buyout Amount = 75% ($7,500,000 - $225,000 - $2,359,800) _ $3,686,400 3. The Developer will pay the Buyout Amount to the City within forty-five (45) days following execution by all the Parties of the First Amendment (the "Payment Date"). Notwithstanding the 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. 4. Upon receipt of the Buyout Amount, City will cause the First Amendment to be recorded in the Office of the Marin County Recorder and City will pay to the Marin Housing Authority the sum of $36,864 from the Buyout Amount, representing one percent (1%) of the Buyout Amount. 5. Once the First Amendment has been recorded, the BMR Agreement as amended by the First Amendment will be fully transferable and/or assignable to all successors or assignee(s) of the Development. 6. Following recordation of the First Amendment, the City will record a release notice for the lots described in Section 1(a) above, in a form approved by Developer, DRAFT DATE: April 7, 2020 ARTICLE H. CONSOLIDATED SUBDIVISION IMPROVEMENT AGREEMENT 7. City and Developer will enter into a Consolidated Subdivision Improvement Agreement for completion of the unconstructed subdivision improvements required by the Phase 1 SIA and the Phase 2 SIA, including the work required by Amendment No. 5 to Permit No. 2006.010.05 , issued by the San Francisco Bay Conservation and Development Commission ("BCDC") on December 12, 2019. The Consolidated Subdivision Improvement Agreement will be in the form attached hereto as Exhibit A and incorporated herein, subject to final approval as to form and substance by the City Attorney and the Director Of Public Works. ARTICLE III. GENERAL PROVISIONS 8. No Third -Party Beneficiaries. The Parties do not intend, by any provision of this MOU, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this MOU, to the other Parties. 9. Entire Agreement -- Amendments. a. The terms and conditions of this MOU, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. b. The terms and conditions of this MOU shall not be altered or modified except by a written amendment signed by all of the Parties. 10. Costs And Attorney's Fees. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 11. Applicable Law. The laws of the State of California shall govern this Agreement. 12. Counterparts And Electronic Si ani This MOU may be executed by electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this MOU as of the day, month and year first above written. CITY OF SAN RAFAEL MARINA VILLAGE ASSOCIATES, LLC A Delaware limited liability company By: By: JIM SCHUTZ, City Manager Name: 4 DRAFT DATE: April 7, 2020 ATTEST: Title: LINDSAY LARA, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, City Attorney HOUSING AUTHORITY OF MARIN COUNTY LEWIS JORDAN, Executive Director Attachment: Exhibit "A"- Consolidated Subdivision Improvement Agreement 5