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CD Management Services for Ownership Affordable Housing Program (missing MHA signature)Agreement for BMR Program Portfolio Management City of San Rafael AGREEMENT FOR PROFESSIONAL SERVICES FOR PROGRAM MANAGEMENT SERVICES FOR OWNERSHIP AFFORDABLE HOUSING PROGRAM THIS AGREEMENT is made and entered into this cZq of , 2020, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and the HODS G AUTHORITY OF THE COUNTY OF MARIN (hereinafter "CONTRACTOR" or "AUTHORITY"). This Agreement is for BMR Program Portfolio Management (the "Agreement") relating to CITY's Below Market Rate Homeownership Program (the "BMR Program"), and each unit that is part of the BMR Program is referred to a "BMR unit". RECITALS WHEREAS, San Rafael General Plan 2020 contains policies for the provision of affordable housing programs in San Rafael; and WHEREAS, CITY has contracted with CONTRACTOR to manage CITY'S affordable ownership housing program since the program's inception in the 1980's; and WHEREAS, the CONTRACTOR manages the affordable ownership housing program for all jurisdictions in the County, with the exception of the City of Novato; and WHEREAS, the current contract expires on June 30, 2020. The CITY and CONTRACTOR desire to renew the contract for an additional time period and to increase the contract amount by two percent annually to reflect inflation costs. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. Paul Jensen, Community Development Director, is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER, or any successor PROJECT MANAGER that CITY may, in its sole discretion, designate, shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single BMR Homeownership Agreement - MHA and City of San Rafael Page 1 PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Carmen Hall Soruco is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide services as pursuant to the Scope of Program Management Services attached as Exhibit A hereto and incorporated herein by reference. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as follows: A. Execute and, if appropriate, record documents that are appropriate or necessary for the operation of the BMR Program and performance of this Agreement and transactions contemplated hereby. B. Provide conditions of approval for each new development that includes affordable units to be managed by the AUTHORITY and execute the three -party (among AUTHORITY, CITY, and a developer/contractor) Affordable Housing Agreement. C. Approve the AUTHORITY'S initial for -sale BMR Unit pricing information for the Affordable Housing Agreement pursuant to the conditions of approval and/or the affordability requirements established by CITY. D. Obtain CITY approvals of the three -party Affordable Housing Agreement among AUTHORITY, CITY, and a developer. E. Notify the AUTHORITY of any changes to local code requirements or policies that impact the CITY'S BMR program, affordable housing program, or the terms of this Agreement. F. Communicate with AUTHORITY, including, but not limited to, meeting with AUTHORITY on an annual basis to review the asset management portfolio and the services. G. Assess and pay fees due to AUTHORITY as required by this Agreement. The invoiced fees and related expenses shall be paid by CITY within thirty (30) days of AUTHORITY'S submission of billings. CITY further agrees to assume and be solely responsible for all and any payment for legal services performed on CITY'S and AUTHORITY'S behalf per this Agreement. H. Provide, or cause to be provided, access by AUTHORITY to any and all CITY information and documentation necessary for the AUTHORITY to perform pursuant to this Agreement, including but not limited to, documents recorded by CITY. BMR Homeownership Agreement - MHA and City of San Rafael Page 2 4. COMPENSATION. PROGRAM MANAGEMENT SERVICES FEE. CITY shall pay AUTHORITY $689.00 per BMR unit, annually, for each BMR Unit that is in the BMR Program, which shall be due to AUTHORITY on or before July 1 of each year during the term of this Agreement, commencing on July 1, 2020 and increased each anniversary date thereafter by 2.0%. As of the effective date of this Agreement, the BMR Program in the City of San Rafael is comprised of One hundred and twenty-three (123) Units. Accordingly, CITY shall pay to AUTHORITY EIGHTY-FOUR THOUSAND SEVEN HUNDRED FORTY-SEVEN DOLLARS ($84,747.00) for the initial 12 months of this Agreement for services rendered through June 30, 2021. The total number of BMR Units will be increased or decreased over time. The AUTHORITY will include new units during the Fiscal Year in which an eligible buyer is in contract to purchase a BMR unit. The AUTHORITY will remove units from the BMR program during the Fiscal Year in which the affordability restrictions have expired or a BMR unit is removed from the BMR program. These changes will adjust the total annual payment that CITY is obligated to pay to the AUTHORITY. TERM OF AGREEMENT. Regardless of the term of the BMR Resale Restrictions recorded with CITY's BMR Units, the term of this Agreement shall be for four (4) years commencing as of July 1, 2020 (FY 2020- 21 to FY 2023-2024), and will automatically renew for an additional one (1) year term, to June 30, 2025, unless either party notifies the other in writing of its intention to terminate this Agreement at least 120 days prior to the expiration of the initial term. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement during the contract period without cause upon one hundred and twenty (120) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon sixty (60) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. In the event of termination of this Agreement by either party, with or without cause, CITY shall pay CONTRACTOR a prorated amount of the full compensation amount otherwise due for the fiscal year in which the termination becomes effective, calculated by dividing the number of days that have elapsed in the fiscal year in which the termination becomes effective by 365, less BMR Homeownership Agreement - MHA and City of San Rafael Page 3 credits for any Annual Maintenance and Certification Fees collected by CONTRACTOR.as pfovided in Paragraph 4(B).. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR'S documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. BMR Homeownership Agreement - MHA and City of San Rafael Page 4 4. If it employs any person, CONTRACTOR shall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONTRACTOR's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONTRACTOR'S insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO form CG20 0104 13. 3. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONTRACTOR hereby grants to CITY a waiver of any right to subrogation which any insurer of CONTRACTOR may acquire against CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements BMR Homeownership Agreement - MHA and City of San Rafael Page 5 for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the obligations of the CONTRACTOR under this agreement. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles, or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONTRACTOR'S willful misconduct or negligent performance of its obligations or conduct of its operations under this Agreement. To the extent that liability is caused by the negligence or willful misconduct of the City Indemnitees, the CONTRACTOR'S indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR'S work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR'S indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S performance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. CITY shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CONTRACTOR, and hold harmless CONTRACTOR, its officers, agents, employees and volunteers (collectively, the "Contractor Indemnitees"), from and against any BMR Homeownership Agreement - MHA and City of San Rafael Page 6 claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CITY'S willful misconduct or negligent performance of its obligations or conduct of its operations under this Agreement. To the extent that liability is caused by the negligence or willful misconduct of the Contractor Indemnitees, the CITY'S indemnification obligation shall be reduced in proportion to the Contractor Indemnitees' share of liability for the negligence or willful misconduct. In the event the Contractor Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CITY'S performance of or operations under this Agreement, CITY shall provide a defense to the Contractor Indemnitees or at CONTRACTOR'S option reimburse the Contractor Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LA CONTRACTOR shall observe and comply with all applicable federal, state, and local laws, ordinances, codes, and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes, and regulations. CONTRACTOR shall release, defend, indemnify. and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD -PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: BMR Homeownership Agreement - MHA and City of San Rafael Page 7 TO CITY'S Project Manager: TO CONTRACTOR'S Project Director: 16. INDEPENDENT CONTRACTOR. Paul Jensen Community Development Director City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 94915-1560 Carmen Hall Soruco Homeownership Programs Manager Housing Authority of the County of Marin 4020 Civic Center Drive San Rafael, CA 94903-4173 For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents, and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents, and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, 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. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, BMR Homeownership Agreement - MHA and City of San Rafael Page 8 agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. 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. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. SURVIVAL OF TERMS. Any terms of this Agreement that by their nature extend beyond the term (or termination) of this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective successors and assigns. 23. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 24. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed 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. 25. EXHIBITS. The following exhibits are attached to this Agreement: BMR Homeownership Agreement - MHA and City of San Rafael Page 9 Exhibit A: Contractor Scope of Work Exhibit B: List of BMR developments development. in CITY and number of BMR units in each IN WITNESS WHEREOF, the Housing Authority of the County of Marin and the City of San Rafael, have executed this Agreement as of the date first written above. The undersigned represent and warrant that he/ she has full power and authority to enter into this Agreement and to bind each other in accordance with its terms. FOR THE CITY OF SAN RAFAEL: Jim Schutz,ity anager ATTEST: Lindsay Lara, City Clerk APPROVED AS TO FORM: 0, kLL.L-r�' Robert Epstein, City Attor6ey FOR THE HOUSING AUTHORITY OF THE COUNTY OF MARIN: Lewis Jordan, Executive Director DATE __=====END OF AGREEMENT===========_=====_ BMR Homeownership Agreement - MHA and City of San Rafael Page 10 EXHIBIT A PROGRAM MANAGEMENT SERVICES The Housing Authority of the County of Marin ("Authority") shall provide the following services to the City of San Rafael ("City"): I. INITIAL SALE OF BMR UNITS A. PRE -SALE SERVICES Meet with City and prospective developers to discuss (1) City's inclusionary housing requirements; (2) how those requirements can be satisfied through the BMR Program; and (3) how to determine a specific "affordable" sales price to be applied to a general income level target. ii. Assist City staff in developing the Conditions of Approval for projects with affordable units. iii. Establish the initial for -sale BMR Unit pricing information for the Affordable Housing Agreement pursuant to the conditions of approval and/or the affordability requirements established by City. iv. Prepare and execute the three -party Affordable Housing Agreement among Authority, City, and a developer/contractor, implementing the City's affordable housing requirements contained in the conditions of approval. The Affordable Housing Agreement shall include a description of the affordable units including number of bedrooms, the affordability levels and initial sales prices, the buyer selection criteria, and the procedures for the purchase of the unit by eligible households. The Authority shall work with the City to obtain the required signatures on the Agreement. The Authority shall effectuate the recordation of the Affordable Housing Agreement on the subject property and provide proof of such recording to the City. The Authority shall be paid by the Developer for the services contained in this Section A. (iv). B. SALE AND RE -SALE SERVICES i. Provide up to date information on the BMR program requirements, income limits, and applications on the Marin Housing Authority website. ii. Advertise the BMR Program and BMR units when appropriate and through methods deemed appropriate by the Authority, such as e-mail blasts, the Authority website and/or BMR database, and/or mailers to community service providers, and/or lenders. Page 11 iii. Manage applicants for BMR unit ownership by: 1. Determining applicant eligibility pursuant to criteria established in cooperation with City. 2. Operating a computer-generated lottery system to establish a numerical list of eligible households for the available BMR unit. This numerical list is used to establish the priority order of the potential buyers. 3. Preparing and mailing notices for house tours to the topmost households from the numerical lottery list. 4. Verifying applicants' attendance at the open house and established interest in the available BMR unit. Removing households that are not interested in the available BMR unit from the numerical list. 5. Working with lenders on pre -approvals for topmost households on the list of eligible and interested buyers. iv. Maintain an up to date list of approved mortgage providers on the Marin Housing Authority website. Provide lender training, BMR program documents and requirements to lending institution's underwriting department, and address questions from underwriters. v. Engage licensed real estate broker/agents to list, market, and complete the purchase and sale of BMR units in accordance with industry standards, while following the BMR Program requirements. vi. Subject to availability, provide assistance to BMR unit buyers with obtaining down payment assistance. Assistance programs may include, CalHome and other programs available to eligible buyers within the City. vii. Utilize the most current versions of the following documents and obtain all necessary signatures thereon, in connection with all BMR unit conveyances during the term of this Agreement: 1. Resale and Refinancing Restriction Agreement and Option to Purchase 2. Buyer's Disclosure Statement — Marin County Below Market Rate Home Otivnership Program 3. Authority Deed of Trust and Security Agreement seczrring the Resale and Refinancing Restriction Agreement and Option to Pitt -chase viii. Record or cause to be recorded, as appropriate, the Resale and Refinancing Restriction Agreement and Option to Purchase, the Authority Deed of Trust and Security Agreement Securing the Resale and Refinance Restriction Agreement, and a Request.for Copy of Default Notice as appropriate. ix. Calculate resale price evaluations for existing BMR units for purposes of resale or refinance. Page 12 x. Provide ongoing assistance to BMR owners with issues such as capital improvements, special assessments, etc. xi. Process requests from BMR owners to address life changes such as adding or removing parties from title, inheritance issues, etc. xii. When a BMR unit owner notifies Authority of owner's intention to sell their unit; request from such owner information regarding repairs or upgrades completed to that owner's BMR unit, conduct an inspection of the unit to assess the work that will be required to resell the unit to another first time homebuyer and, if appropriate, adjust the sales price for such owner's BMR unit. xiii. Up to 4 % of the total sales price of each BMR unit will be payable to a broker /agent and to the Authority ("brokerage fee"). The precise distribution of the brokerage fee will be dependent on whether there is dual representation of the BMR unit buyer and seller by an agent / broker. When a buyer is found from among the list of existing BMR applicants in the lottery drawn by the Authority, the Authority shall retain I% of the brokerage fee. II. SALE AND RESALE OF EXISTING BMR UNITS A. BELOW MARKET VALUE RESALE When a BMR unit owner wishes to sell their BMR unit, City may elect to retain such BMR unit within the BMR Program but to increase the sales price of such BMR unit for the subsequent purchaser of that BMR unit provided the increased sales price remains affordable to the unit's designated income level. If the City desires to increase the resale price of a BMR unit pursuant to the immediately foregoing sentence, City must provide written notice to Authority within 10 days of receiving notice from Authority that a BMR unit will become available for resale. Up to 4 % of the total sales price of each BMR unit will be payable to a broker/agent and to the Authority (`brokerage fee"). The precise distribution of the brokerage fee will be dependent on whether there is dual representation of the BMR unit buyer and seller by an agent / broker. When a buyer is found from among the list of existing BMR applicants in the lottery drawn by the Authority, the Authority shall retain I% of the brokerage fee. B. MARKET VALUE SALE City may elect to release a BMR unit from the BMR Program and its affordability and resale restrictions by directing the Authority in writing to resell a BMR unit at its market value ("Market Value Sale"). If City desires for a Market Value Sale to occur, City must provide written notice to Authority within 10 days of receiving notice from Authority that a BMR unit will become available for sale. Page 13 C. PROCEEDS FROM MARKET VALUE SALE After Authority's consummation of a sale pursuant to Section II (A) and II (B) above, Authority shall retain the difference between the actual sale price of the BMR unit subject to such sale, less (1) brokerage fees and all reasonable and customary closing fees, (2) satisfaction of all valid liens that the BMR unit is subject to if such lien(s) were permitted by relevant agreements with Authority and/or City governing such BMR unit, (3) such amount as BMR unit owner is entitled to receive at the close of a sale of their BMR unit pursuant to such owner's recorded resale restriction agreement(s) with Authority and/or City that govern the sale of their BMR unit, and (4) any funds that City owes to Authority pursuant to this Agreement. Funds remaining after satisfaction of Section II. (C) above shall be maintained in an account for the benefit of the City ("City Account"). III. ADMINISTRATIVE SERVICES A. BMR PROGRAM MONITORING SERVICES i. Authority shall perform annual monitoring of no less than one-third of City's existing BMR units to attempt to verify compliance with the Resale Restrictions Agreement such as continuing owner occupancy, no subleasing, no refinancing without approval, no over -encumbrances etc. ii. Authority shall provide annual status reports to City on BMR sales activity, refinancing activity, monitoring results, and other related information that is reasonably requested by the City (e.g., current affordability levels, issues, and concerns, etc.). B. INFORMATION AND EDUCATION i. Upon request, Authority shall provide City, BMR Program participants and lenders with information concerning procedures and/or restrictions regarding BMR unit conveyance refinancing, and determination of affordability levels and capital improvements. ii. Authority shall provide, or cause to be provided, HUD approved first time homebuyers' education. The HUD approved curriculum includes budgeting, financial preparedness, credit, qualifying for a loan, loan types and terms, refinancing, fair housing laws, and homeowners' associations. iii. Authority shall provide Median Household Income information to City and prospective developers, and provide relevant information concerning Income Page 14 Limits and Median Income, the relationship between those factors, and how those factors typically are used to determine affordability. C. AUTHORITY'S MANAGEMENT OF CITY ACCOUNT Upon approval by the City, this account may be used by the Authority for the benefit of the City BMR program including, but not limited to; the payment of legal fees, the acquisition of BMR units, payment of the Authority's annual fee, reduction in affordability levels of BMR units, and/or capital improvements to BMR units prior to resale. IV. OPTION EVENTS AND OTHER LEGAL DISPUTES A. ENFORCEMENT SERVICES BY AUTHORITY STAFF FOR OPTION EVENTS Should the Authority identify BMR Program violations by any BMR unit owners ("Option Events"), the Authority shall promptly notify the City and, upon City's request, the Authority shall contact such BMR unit owner and demand correction of their violation(s). The Authority, with consent of the City, will attempt to enforce the BMR Resale Restrictions Agreement to secure and preserve the BMR unit for the City and enforce compliance with the BMR Program, or as otherwise directed by the City with respect to each such BMR unit. The services performed by Authority pursuant to this sub -section IV(A) shall be referred to as "Enforcement Services." B. FEE TO AUTHORITY FOR ENFORCEMENT SERVICES Enforcement Services will be provided on a case-by-case basis only upon City's written consent pursuant to sub -section IV(A), immediately above. Enforcement Services will be provided by an employee of the Authority, and the Authority will charge City $95 per hour if the Enforcement Services are performed by a non -attorney and $145 per hour if the Enforcement Services are performed by an employee of the Authority that is an attorney. Charges for Enforcement Services will be at'/4 hour increments, at a maximum limit of $1,900 per BMR unit. The Authority will submit detailed monthly billings to City reflecting the Enforcement Services performed. Payment is due on all billings net 30 days from the date City receives the invoice. No fees shall be billed to City in excess of the above maximum without City's prior written approval. Compensation for Enforcement Services will be in addition to the compensation provided to Authority under other provisions of this Agreement. C. LEGAL SERVICES IN THE EVENT OF BMR DEFAULT OPTION EVENTS. BMR units may be subject to legal disputes and retaining outside legal counsel to perform services relating to certain BMR units may become appropriate (with respect to each such BMR unit, a "Dispute"). The Authority will notify City within a reasonable period of time within which Authority learns of a Dispute. In the event Authority notifies City of a Dispute, the Authority may, with City's prior written consent, retain outside legal counsel of Authority's choosing to represent the Authority with respect to each Dispute. The Authority will manage and provide instruction to outside legal counsel, keep City reasonably informed and forward Page 15 legal counsel's advice to City concerning each Dispute. Any time expended by Authority employees regarding a Dispute shall also constitute Enforcement Services and will be billed pursuant to Section IV(B), above. D. FEE TO AUTHORITY TO REIMBURSE 3RD PARTY LEGAL SERVICES. The Authority will provide Enforcement Services with respect to each Dispute until the Dispute is resolved. Upon attorneys' fees and costs incurred for a Dispute reaching $5,000 (to be billed on an hourly basis pursuant to standard industry practices, with detailed billings to be provided to City), the City will be briefed on the recommended course of action provided by legal counsel and the City shall provide general direction to Authority with respect to each Dispute. E. EXERCISE OF OPTION TO PURCHASE PURSUANT TO RESALE RESTRICTION AGREEMENT i. Notice of Option In the event the Authority identifies an Option Event, and option to purchase a BMR Unit may be exercised, the Authority shall: Notify City in writing within five (5) working days of Authority learning that an option to purchase may be exercised with respect to a BMR unit (the "Notice"). The Notice shall include the option -triggering event, the anticipated resale price, and any other information that may be available to Authority that will assist City in deciding on a course of action. Within ten (10) working days of receipt of the Notice, City shall provide written instructions to the Authority directing the Authority to (1) exercise the Option, (2) assign to City the right to exercise the Option to purchase the BMR unit with City assuming responsibility to enforce the Resale Restriction Agreement and Deed of Trust and Security Agreement, or (3) file a Notice of Abandonment. ii. Exercise of Option If the City requests that the Authority exercise the Option, the Authority shall: Utilize funds provided by the City; or Utilize Authority's line of credit if Authority determines it would not interfere with Authority's operations. The Authority shall be reimbursed by City such amount that Authority contributes toward the exercise of an option. This reimbursement shall occur immediately upon re -sale of the BMR unit subject to such option or 90 days from the Authority's exercise of the Option, whichever occurs earlier. Page 16 RAP 1 i 2 C /T� WITH P 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: Community Development Project Manager: Paul Jensen Extension: 415-485-5064 Contractor Name: Housing Authority of the County of Marin Contractor's Contact: Stephanie Lovette Contact's 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 Insurance N certs available PJ b. Email contract (in Word) and attachments to City 7/21/2020 PJ Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement Click here to and return to Project Manager enter a date. ❑ b. Confirm insurance requirements, create Job on Click here to PINS, send PINS insurance notice to contractor enter a date. ❑ 3 Department Director Approval of final agreement form to send to Click or tap ❑ contractor to enter a date. 4 Project Manager Forward three (3) originals of final agreement to Click here to ❑ contractor for their signature When necessary, contractor -signed agreement enter a date. ❑ N/A 5 Project Manager agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed �Q agreement 8 City Attorney Review and approve insurance in PINS, and bonds % 7 (for Public Works Contracts) Agreement executed by City Council authorized 2,3`2W 9 City Manager/ Mayor City Clerk official 10 Attest signatures, retains original agreement and forwards copies to Project Manager