HomeMy WebLinkAboutCC Resolution 12417 (Loch Lomond BMR)RESOLUTION NO. 12417
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A BELOW
MARKET RATE HOUSING AGREEMENT BETWEEN SAN RAFAEL MARINA, LLC
AND THE CITY OF SAN RAFAEL RE: LOCH LOMOND
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The City Council hereby approves and authorizes the Mayor to execute on behalf of the City of
San Rafael, a Below Market Rate Housing Agreement between San Rafael Marina, LLC, a
California limited liability company, and the City of San Rafael, copy of which is hereby attached
and by this reference made a part hereof, with such changes, deletions and insertions as may be
approved by the City Attorney.
I, ESTHER C. BEIRNE, City Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the
City Council held on the 22nd day of January 2008, by the following vote, to wit:
AYES:
COUNCILMEMBERS:
Brockbank, Connolly, Heller, Miller & Mayor Boro
NOES:
COUNCILMEMBERS:
None
ABSENT:
COUNCILMEMBERS:
None
en. 9:24'e-'4
ESTHER C. BEIRNE, City Clerk
t.1cri
Recording Requested b),:
City of San Rafael
When Recorded Return to:
City of San Rafael
Attention: Esther C. Beirne, City Clerk
P. O. Box 151560
San Rafael, CA 94915-1560
8008-00383E>3
Recorded
Ufficial Record.
County of
Marin
JOAN; C. I HAYER
Assessor -Recorder
08:49AM 14 -Aug -2008
REQ FEE 0. +p"�
a
Rage 1 of 41
BELOW MARKET RATE HOUSING AGREEMENT
Project Name:
Location: Loch Lomond Marina, San Rafael, California
Developer: San Rafael Marina LLC, a California Limited Liability Company,
Or any successor in interest
This Agreement is made and entered into this fA5i' day of J , a OOR, among the CITY
OF SAN RAFAEL, a municipal corporation (hereinafter referred to as "the ity"), 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 (hereinafter referred to as "Marin Housing Authority"), and, LLC, a California Limited
Liability Company, or any successor in interest (hereinafter referred to as "the Developer").
A. The Developer intends to construct a residential housing development on that certain real property situated
within the corporate limits of the City, which real property is more particularly described in Exhibit "A"
attached hereto and incorporated herein.
B. The City, has adopted affordable housing requirements in accordance with the provisions of the Housing
Element of its General Plan, contained in Zoning Ordinance 14.16.030 of the San Rafael Municipal Code,
(the "Affordable Housing Requirement").
C. The Developer intends to construct a total of eighty- one (8 1) residential units on the property, 64 units
will be sold by the developer without price restrictions from the City ("market rate units"). The developer
intends to meet the affordable housing requirements by constructing or causing to be constructed
seventeen (17) on site dwelling units to be sold at prices that are affordable to low and moderate income
households ("affordable units"). The affordable units are shown on Exhibit `B" attached hereto and
incorporated herein.
D. The Developer is required to enter into a Regulatory Agreement, on terms acceptable to the City of San
Rafael and Marin Housing. This Regulatory Agreement shall be executed and recorded against the
Property prior to the recordation of the parcel map or final map in the case of subdivision of the
BMR Housing Agreement -,-San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 1 of 11
Property or prior to the issuance of building permits for the Property in the case of all other land use
permits.
E. Marin Housing Authority is authorized by law to participate in programs that provide housing for
households of low and moderate income, and is by experience qualified to screen and determine eligibility
of applicants for low and moderate -income housing.
The parties hereto desire, by this Agreement, to cooperate in implementing the efforts of the Developer to comply
with the Affordable Housing Requirement that the Developer make available said dwelling units at prices which
are affordable to low-income households.
NOW THEREFORE, it is hereby agreed by and between the parties hereto as follows:
1. The Developer agrees that seventeen (17) dwelling units, within the project approved by the City for the
property described in Exhibit "A" attached hereto will be sold to low and moderate income -income households
in accordance with the terms and pursuant to the procedures set forth in this Agreement. Said dwelling units
are identified in Exhibit "B" attached hereto and will be legally described in an attachment to be recorded with
the final map. Said dwelling units are hereinafter referred to as "the Affordable Units."
2. The Developer agrees that the Affordable Units, consisting of eleven (11) attached townhouses, four (4)
detached cottages and two (2) second story flats, shall be dispersed throughout the Property as shown in
Exhibit B. 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.
The Developer agrees that the contract sales price for the Affordable Units shall not exceed the prices set forth
in Exhibit "B" attached hereto. Developer acknowledges and agrees that the contract sales prices as shown in
Exhibit B shall be calculated by Marin Housing in its reasonable exercise of discretion in interpreting the
requirements of this Agreement and that Marin Housing's calculation of the contract sales prices shall be
determinative and binding on the Developer. The reasonable contract sales price is defined as the amount paid
by the Buyer to the Developer without regard to proration of taxes, utilities, or other such items and without
regard to Buyer's payment of homeowner's association fees, insurance premiums, escrow costs, transfer taxes,
recording fees, document preparation cost or similar items. The contract sales price shall be the absolute
maximum price that the Developer or any other person may charge for the Unit. The Developer or any other
seller may not charge or receive any additional amount for the Unit regardless of whether the additional
amount is (a) for options, upgrades or additional improvements to the unit, (b) paid through escrow or outside
escrow, (c) paid prior to, or after or as part of the purchase escrow; or (d) paid in cash or in kind without the
written approval of Marin Housing.
4. The Developer agrees to offer the Affordable Units for sale only to individuals or households who have been
certified as eligible by Marin Housing Authority ("Eligible Buyer").
5. The Developer further agrees to give written notice to Marin Housing Authority at least one hundred and
twenty (120) days prior to the issuance of a Certificate of Occupancy for the Units.
BMR Housing Agreement—San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 2 of 11
Marin Housing Authority agrees to process applications and certify the eligibility of applicants as low and
moderate income households. An individual or a household shall be deemed to qualify as a low-income
household provided the income of such individual or household does not exceed eighty percent (80%) of the
current median income. An individual or a household shall be deemed to qualify as a moderate -income
household provided the income of such individual or household does not exceed one hundred and twenty
percent (120%) of the current median income. The median income is defined as the median income for Marin
County as determined by the California State Department of Housing and Community Development ("HCD"),
Division of Housing Policy Development, with adjustments for smaller or larger households (refer to Exhibit
"D" attached hereto).
In certifying eligibility of applicants, Marin Housing Authority shall adhere to the requirements for eligibility
adopted by the City and specified in EXHIBIT "C" attached hereto. Selection of individuals or households
falling within any of the priorities established in EXHIBIT "C" shall be determined by a drawing or other
equitable method mutually agreed upon by the City and Marin Housing Authority.
Marin Housing shall be paid a fee of 1% of the sales price by the buyer, which shall be included in the buyer's
closing costs through escrow.
Developer shall not unreasonably delay its review and acceptance or rejection of the offer submitted by an
applicant supplied by Marin Housing.
7. In the event that any of the Affordable Units remain unsold at the end of one hundred fifty (150) days from the
date of issuance of a Certificate of Occupancy by the City for the phase of development in which the subject
unit is located, the Developer shall notify Marin Housing Authority in writing of such fact. Within ten (10)
working days after receipt of such written notice, Marin Housing Authority or its assignee may notify the
Developer in writing that it will purchase the Unit. If such notice is given by Marin Housing Authority, the
Developer shall then sell the Unit to Marin Housing Authority or its assignee at the same price it would have
been available for sale to households of low and moderate income. As used herein, the term "sold" shall mean
the execution of a contract for purchase and the approval of a mortgage loan for the buyer.
8. 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 price, affordability or future re -sale, and no deed
restrictions will be placed on the property. In such event, 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 price specified 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, whichever shall first occur. The City shall pay to Marin Housing Authority ten
percent (10%) 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.
BMR Housing Agreement—San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 3 of 11
9. Prior to the sale of each Unit, the Developer shall ensure that:
9.1. The Eligible Buyer and the Housing Authority execute a Resale Restriction, which shall be recorded
against the Unit at the close of escrow on the Sale to the Eligible Buyer. Exhibit "E" contains a draft
Resale Restriction. Marin Housing shall provide the Developer the final Resale Restriction for approval,
which Developer shall not unreasonably withhold, upon receipt of the Developer's 120 day written notice
contained in Section 5.
The Resale Restriction shall be recorded junior only to the lien of the deed of trust securing the Eligible
Buyer's first mortgage loan, and second mortgage loan if such loan is provided by a public agency or
private entity which requires such subordination, unless approved otherwise by the Marin Housing
Authority.
9.2. The Eligible Buyer signs a Homebuyer/Marin Housing Authority Note that obligates the Eligible Buyer to
transfer to Marin Housing Authority any excess sales proceeds or rents received by the eligible Buyer if
the Eligible Buyer fails to comply with the Resale Restriction on rental or resale of the Unit.
9.3. The Eligible Buyer signs a Homebuyer/Marin Housing Authority Deed of Trust to secure performance of
the Eligible Buyer's covenants under the Resale Restriction and payment of the amount due under the
Homebuyer/Marin Housing Authority Note if the Eligible Buyer fails to comply with the terms of the
Resale Restriction. The Homebuyer/Marin Housing Authority Deed of Trust shall be recorded against the
Unit, subordinate only to the Resale Restriction and a lien for the first mortgage loan obtained by the
homebuyer to finance the purchase of the Unit (and second mortgage loan if such loan is provided by a
public agency or private entity which requires such subordination).
10. In the event that the development project is not constructed or in the event that the master plan for the project
is amended or revised such that the Affordable Units specified in Paragraph 1 are no longer required thereby,
this Agreement shall thereupon become void, unless any of the Affordable Units have previously been sold in
accordance with the provisions of this Agreement, in which event the provisions of this Agreement will
continue in force with respect to the Affordable Units so sold.
11. In the event of a willful violation of this Agreement by the Developer, Marin Housing Authority and the City
shall be entitled to receive from the Developer and any person employed by or representing the Developer
violating the requirement of this Agreement, in addition to any remedy otherwise available under this
Agreement or at law or equity, whether or not litigation is instituted, the costs of enforcing this Agreement,
including without limitation reasonable attorney's fees and costs of Marin Housing Authority and City staff
time.
BMR Housing Agreement—San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 4 of 11
12. All notices required to be given under the terms of this Agreement shall be sent by first class U.S. mail,
certified/return receipt requested, or by express courier service, addressed as follows:
To the City:
Attention:
To Marin Housing Authority:
Attention:
City of San Rafael
Economic Development Department
P.O. Box 151560
San Rafael, CA 94915-1560
Marin Housing Authority
Executive Director
4020 Civic Center Drive
San Rafael, CA 94903-4173
To the Developer: San Rafael Marina, LLC
c/o Oaktree Capital Management
333 South Grand Avenues, 28h Floor
Los Angeles, CA 90071
Any party may change the address to which notice shall be mailed to it by giving notice thereof to
the other parties by certified mail.
13. The City shall indemnify and hold harmless Marin Housing Authority and the Developer, its officers, officials,
employees and agents from and against all claims, damages, loses and expenses including attorneys fees
arising out of the performance of this agreement, cause in whole or part by any negligent act or omission of the
City, except where caused by the active negligence, sole negligence, or willful misconduct of the Marin
Housing Authority and/or Developer.
14. 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.
15. The following exhibits are attached to this Agreement:
Attachments: Exhibit "A" --Legal Description of Property
Exhibit "B"—Map and Schedule of BMR Units and Sales Price
Exhibit "C" --Eligibility Requirements and Priorities
Exhibit "D" --Marin County FY 2008 Median Family Income Schedule
Exhibit `B"—Resale Restriction
BMR Housing Agreement—San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 5 of 11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.
CITY OF SAN RAFAEL
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ATTEST:
HOUSING AUTHORITY OF
THE COUNTY OF MARIN
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BMR Housing Agreement—San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 6 of 1 I
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Mari n
On August 7, 2008 beforeme, Carol J. Kazarian, Notary Public
Date Here Insert Name and Title of the Officer
personally appeared Nannette Beacham -Sparks
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(t) whose name(s) isfare subscribed to the
within instrument and acknowledged to me that
*)Wshe/Ok" executed the same inftsr/her/thak authorized
capacity(iM), and that byktfher/thaix signature" on the
G1ROL J. KAZARIAN instrument the person(s), or the entity upon behalf of
Commisgon # 1675252 which the person(%) acted, executed the instrument.
Notary PubNc - Calffornla
Moan county I certify under PEN11ALTY OF PERJURY under the laws
My Comm. Expkes Jun t s, 2ot
true and correct.
WITNESS my hand and official seal.
Signature
Place Notary Seal Above Signature o%NN% ry Public
OPTIONAL
v
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: BELOW MARKET RATE HOUSING AGREEMENT- LOCH LOMOND
Document Date: „ July 1, 2008 Number of Pages: 11 pages
Signer(s) Other Than Named Above: Albert J. Boro, Ambrose Fisher, Cary A Kleinman
Capacity(ies) Claimed by Signer(s)
Signer's Name: Nannette Beacham -Sparks Signer's Name:
Individual I""""I Individual
)(LA Corporate Officer — Title(s): De Du t v Director ❑ Corporate Officer — Title(s):
Attorney . l To II Attorney in Fact
V Partner — I Limited I .. General
Partner -- in Fact — ... Limited General p of thumb here I I
Trustee Trustee
Guardian or Conservator Guardian or Conservator
II Other: " Other:
Signer Is Representing: the Signer Is Representing:
Housing Authority of the
County of Marin
RW
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02007 National Notary Association- 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www NationalNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827
ACKNOWLEDGMENT
State of California
County of Marin
on July 21, 2008 before me, Esther C. Beirne, Notary Public
(insert name and title of the officer)
personally appeared Albert J. Boro
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)is re
9s bscribed to the within instrument and acknowledged to me tha(gshe/they executed the same in
/her/their authorized capacity(ies), and that by is er/their signature(s) 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
Signature �� (Seal)
ESTHER C. 9EIRNE
Commlulon M 1744802 L
Notary Public - California
Marin County
f*CGnMB iw.An10,2011
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of 9,OS PnoJw)
On 0//-,�¢- I (o, Q001& before me, 1���� `_0 - -- \► L
V Date L Here Insert Name Mid Title of the Of ice?—
personally appeared Rrrbvc-O,A � +�C aNs j Aner(sK' Cin��
CONSUELO ELISA SANTIAGO
Commission # 1786971
-�i Notary Public - C ount nla
Los Angeles County
tqyA r Comm. Exp res Jan 5, 2012
My„,���iwi WW .Pi'40” "o, .,,i��„•,�, yp'�W'v'.wd
y0�.y
who proved to me on the basis of satisfactory evidence to
be the persorag)whose name so i ar subscribed to the
within instrument and acknowledged to me that
he/she45xecuted the same in his/h thel authorized
capaci es and that by his/he thei sfgna ur (�s on the
instrument the person "sQ D or the entity upon behalf of
which the persons'� cted, 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.
`'o'
Signature � q .
Place Notary Seal Above Signature of Notary Pubic
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:.kk-c YY1f aaZ-Q 11"�
Document Date: Number of Pages: I
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signee
Signer's Name: t—
Individual
Corporate Officer — Title(s,): n'i4•,
Partner —I Limited General -
Attorney in Fact
Trustee Top of thumb h e
Guardian or Conservator
Other:
Signer Is Representing:
LIZ -
Signer's Name: KICIfIvYtd-��
I Individual ` /
Corporate Officer — Title(s): �/ I U= Q"�i dlo”
Partner — i.::: Limited I . General _ :-
I Attorney in Fact •
ll Trustee Tcpof thumb re
....I Guardian or Conservator
b Other:
Signer Is Representing:
Chi I
g12007 National' Notary Association • 9350 De Soto Ave, P.O. Boz 2402 • Chatsworth, CA 91313-2402 • www.Nat onalNotary.org Item #5907 Reorder. Car Toll -Free 1-800 876 6827
EXHIBIT "A"
Project Name: Loch Lomond Marina
Developer: San Rafael Marina, LLC, a California Limited Liability Company,
Or any successor in interest
DESCRIPTION:
The land referred to herein is situated in the State of California, County of Marin, partially in the City of San
Rafael and partially in the Town of Corte Madera and is described as follows:
PARCEL ONE:
Tide Lot 28 of Section 36, Township 2, North Range 6, West M.D.B. & M., as shown on Tide Land
Commissioners Maps Numbers 2 and 3 of Salt Marsh and Tide Land.
Excepting any portion lying within the boundaries of the property shown upon that certain Map entitled, "Map
of Bayside Acres", filed for record April 29, 1911 in Volume 3 of Maps, at Page 71, Marin County Records.
PARCEL TWO:
Portion of Tide Lot 29 of Section 36, Township 2, North Range 6 West M.D.B.& M, described as follows:
Beginning at a point in San Francisco Bay, distant 40 chains East of a granite monument set at the Southwest
corner of Section 36, Township 2, North Range 6 West M.D.B. & M, as shown on Tide Land Commissioners Map
Numbers 2 and 3 of Salt Marsh and Tide Land; thence according to the True Meridian across Tide Lands, North
17 Chajns 36 Links; thence South 77 3/40 East 3 Chains, 16 Links to the line of ordinary high tide; thence
along said line, South 561/4° East 1 Chain 40 Links; South 72 3/40 East 2 Chains, 90 Links, North 76 3/40 East
2 Chains and North 33 1/20 East 1 Chain, 84 Links; thence across Tide Lands, South 17 Chains, 1 Link and
thence at right angles West 10 Chains to the point of beginning.
Excepting any portion lying within the boundaries of the property shown upon that certain Map entitled, "Map
of Bayside Acres", filed for record April 29, 1911 in Volume 3 of Maps, at Page 71, Marin County Records.
Also excepting therefrom that portion as described as follows:
Beginning at the Southeast corner of said Lot 29; thence West along the Southerly line of said Lot 29, a
distance of 25 feet; thence North 25 feet; thence East 25 feet to the Easterly line of said Lot 29, a distance of
25 feet to the point of beginning.
PARCEL THREE:
That portion of Tide Lot 30 of Section 36, Township 2 North Range 6 West M.D.B. & M., as shown on Tide
Land Commissioners Maps Numbers 2 and 3 of Salt Marsh and Tide Land, more particularly described as
follows:
A Strip of land 25 feet in width lying Easterly of and adjacent to the Westerly line of said Lot 30 and lying
Northerly of a line parallel with and 25 feet Northerly from the Southerly line of said Lot 30, as excepted in the
Deed to Crowley Launch and Tugboat Co., a corporation, recorded November 9, 1962 in Book 1629 of Official
Records at Page 94, Marin County Records.
Excepting any portion lying within the boundaries of the property shown upon that certain Map entitled, "Map
of Bayside Acres", filed for record April 29, 1911 in Volume 3 of Maps, at Page 71, Marin County Records.
PARCEL FOUR:
All of Tide Lot 21, in Section 36 Township 2, North Range 6 West M.D.B. & M., as shown on Tide Land
Commissioners Maps Numbers 2 and 3 of Salt Marsh and Tide Land.
Excepting any portion lying within the boundaries of the property shown upon the certain Map entitled, "Map
of Bayside Acres", filed for record April 29, 1911 in Volume 3 of Maps, at Page 71, Marin County Records.
EXHIBIT "All
Continued- this is page 2
Project Name: Loch Lomond Marina ed Liability Company,
Developer: San Rafael Marina, LLC, a California Limit
Or any successor in interest
DESCRIPTION:
The land referred to herein is situated in the State of California, County of Marin, partially within the City of San
Rafael and partially in the Town of Corte Madera and is described as follows:
PARCEL FIVE:
All that certain tract of land lying between the North line of Tide Lot 21, in Section 36 Township 2 North,
Range 6 West M.D.B. & M., as shown on Tide Land commissioners Maps Numbers 2 and 3 of Salt Marsh and
Tide Land and the Southerly line of San Pedro Road and Bounded on the East by Lot 94, as shown upon that
certain Map entitled, "Map of Bayside Acres", filed for record April 29, 1911 in Volume 3 of Maps, at page 71,
Marin County Records, and bounded on the West by the Lands of Robert McCarthy described in that certain
Deed recorded July 3, 1953 in Book 814 of Official Records, at Page 66, Marin County Records.
PARCEL SD(:
BEGINNING at the point of intersection of the Southerly line of Point San Pedro Road, with the Easterly
boundary line of lands conveyed by Deed to Charles P. Eells, recorded August 27, 1910 in Book 131 of Deeds
at page 77, Marin County Records: running thence Southerly along the Easterly boundary line of lands
conveyed to Eells, to the Southerly boundary line of Lot 26, Section 36, Township 2, Morth, Range 6 West,
M.D.B. & M., as shown on Tide Land Commissioners Maps Numbers 2 and 3 of Salt Marsh and Tide Land,
running thence East along the South line of Lots 26 and 27, in said Section 36 to the Southeast comer of said
Lot 27,
, rthence North to the South line of Point San Pedro Road; thence Westerly along the Southerly line of
said road to the point of beginning.
Excepting therefrom and thereout:
BEGINNING at the Southeasterly corner of Parcel One, as described in the Deed from Charles M. Paganini, et
ux, to Charles M. Paganini, recorded December 31, 1942 in Book 435 of Official Records at Page 483, Marin
County Records; running thence along the Easterly line of said parcel, North 16°26' West 979.9 feet to a stake
driven in the Southerly line of the County Road leading from San Rafael to Point San Pedro; thence
Southeasterly in a straight line to a point in the North line of Tide Lot No. 7, in Section 1, Township 1, North,
Range 6 West, Mount Diablo Base and Meridian,distant as shown Tide Land Commissioners Maps Numbers 2
and 3 of Salt Marsh and Tide Land on said last mentioned line 110 feet West from the Northeast comer of said
Tide Lot No. 7; running thence West along the North line of said Tide Lot No. 7, to the point of beginning.
PARCEL SEVEN:
The East 110 feet of Tide Lot No. 7 in Section No. 1, Township I North, Range 6 West, M.D.B. & M., as shown
on Tide Land Commissioners Maps Numbers 2 and 3 of Salt Marsh and Tide Land, being a strip of land having
a full width of 110 feet, the East line thereof being the East line of said Tide Lot No. 7.
PARCEL EIGHT:
All of Lot 11, in Section No. 1, Township I North, Range 6 West, M.D.B. & M., as shown upon that certain Map
entitled,,Map No. 2, Salt Marsh and Tide Lands situate in the County of Marin, State of California", prepared
by Order of the Board of Tide Land Commissioners, on file in the Office of the Surveyor General of the State of
California Sacramento, California.
BMR Housing Agreement ---San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority
Page 7.2 of 1 I
EXHIBIT "A"
Continued- this is page 3
Project Name: Loch Lomond Marina
Developer: San Rafael Marina, LLC, a California Limited Liability Company,
Or any successor in interest
DESCRIPTION:
The land referred to herein is situated in the State of California, County of Marin, partially within the City of San
Rafael and partially in the Town of Corte Madera and is described as follows:
PARCEL NINE:
Beginning at a point on the Southerly line of Beach Drive at the Northwesterly corner of the lot conveyed by
the McNear Company, a corporation, to M.M. Morris and wife, by Deed recorded May 3, 1935 in Book 294 of
Official Records at Page 438, Marin County Records; running thence along the Northwesterly line of said
parcel, South 60°41' West 167.9 feet to the most Westerly corner of lot conveyed to Morris, above referred to;
running thence North 56001' West 116.30 feet, more or less, to the most Southeasterly corner of the lot
conveyed by Roger Chevalier and wife, to Werner F. Chilton and wife, by Deed recorded June 26, 1951 in Book
694 of Official Records at Page 230, Marin County Records; running thence along the Southeasterly line of the
last above mentioned parcel, North 60041' East 169.42 feet to a point in the Southerly line of Beach Drive;
running thence along said Beach Drive, South 56°01' East 116.30 feet, more or less, to the point of beginning,
being a portion of Lots 99, 100, 101, 102 and 103, as shown upon that certain Map entitled, "Bayside Acres",
filed for record April 29, 1911 in Volume 3 of Maps, at Page 71, Marin County Records.
PARCEL TEN:
Tide Lots 4 and 13 in Section 1, Township 1, North Range 6 West, M.D.B. & M., as shown on Map No. Town of
Salt Marsh and Tide Lands situate in the County of Marin, State of California, prepared by order of the Board
of Tide Land Commissions.
BMR Housing Agreement—San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority
Page 7.3 of 11
EXHIBIT "A"
Continued- this is page 4
Project Name: Loch Lomond Marina
Developer: San Rafael Marina, LLC, a California Limited Liability Company,
Or any successor in interest
DESCRIPTION:
The land referred to herein is situated in the State of California, County of Marin, partially within the City of San
Rafael and partially in the Town of Corte Madera and is described as follows:
Excepting therefrom the following described property:
Beginning at the Northeasterly corner of Lot 13, above mentioned and running thence South along the Easterly
line of said Lot 13 for a distance of 25 feet; thence West 25 feet; thence North parallel with and 25 feet
Westerly from the Easterly lines of Lots 4 and 13 to a point on the Northerly line of Lot 4; thence East 25 feet
to the Northeasterly corner of said Lot 4; thence South along the Easterly line of Lot 4 to the point of
beginning.
PARCEL ELEVEN:
Beginning on the shore of San Francisco Bay, distant 12.35 chains East of a Granite Monument set at the
Northwest corner of Section 1 in Township 1 North, Range 6 West, M.D.B. & M., as shown on Tide Land
Commissioners Maps Numbers 2 and 3 of Salt Marsh and Tide Land; thence according to the true meridian
East 27.65 chains; thence South 18.52 chains to San Rafael Canal and along the same North 62 1/20 West
29.65 chains; thence along the shore line, North 73 1/20 East 1.52 chains, North 2 3/40 East 2.60 chains to the
point of beginning.
Being a tract of Tide Lands in San Francisco Bay designated as Lots 5, 6 and 7 in Section 1 of said Township,
Maps above referred to.
Excepting therefrom and thereout the following described portion:
Tide Land Lot No. 7 in Section 1, Township 1 North, Range 6 West, M.D.B. & M., as shown on Tide Land
Commissioners Maps Numbers 2 and 3 of Salt Marsh and Tide Lands, Marin County, State of California.
PARCEL TWELVE:
An exclusive easement as reserved in that certain Deed from McCarthy Loch Lomond Marina Inc., to Crowley
Launch and Tugboat Co., a corporation, recorded November 9, 1962 in Book 1629 of Official Records at Page
94, Marin County Records for ingress and egress over a strip of land described as follows:
Beginning at a point on the Westerly line of Tide Lot 30, in Section 36 Township 2, North Range 6 West M.D.B.
& M., as shown on Tide Land Commissioner's Maps Two and Three of Salt Marsh and Tide Land, which point
bears North 926.68 feet from the Southwest corner of said Tide Lot 30; thence from said point of beginning,
North 35030' East 250 feet to a point; thence at right angles Southeasterly for a distance of 25 feet to a point;
thence South 35030' West 282, more or less, to a point on the Westerly line of said Tide Lot 30; thence North
along said Westerly line 40 feet, more or less, to the point of beginning.
Excepting therefrom, any portion lying within the boundaries of Parcel Three herein described:
PARCEL THIRTEEN:
All that certain real property situate in the Town of Corte Madera, County of Marin, State of California,
described as follows:
Tide Lots 13, 14, 17, 18, 19 and 20 in Section 14 Township 1 North, Range 6 West M.D.B. & M., as shown upon
that certain Map entitled, "Map No. 2 of Salt Marsh and Tide Lands, situate in the County of Marin, State of
California", and as shown upon that certain Map entitled, "Map No. 7 of Salt Marsh and Tide Lands situate in
Marin County, State of California", filed for record June 1, 1872 in Volume 1 of Maps, at Page 32, Marin County
Records.
APN: 009-141-05,07,08, 009-142-07, 016-070-02,03,04,05,06, 023-050-02,07,08, 186-142-10
RESOLUTION NO. 12417
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A BELOW
MARKET RATE HOUSING AGREEMENT BETWEEN SAN RAFAEL MARINA, LLC
AND THE CITY OF SAN RAFAEL RE: LOCH LOMOND
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The City Council hereby approves and authorizes the Mayor to execute on behalf of the City of
San Rafael, a Below Market Rate Housing Agreement between San Rafael Marina, LLC, a
California limited liability company, and the City of San Rafael, copy of which is hereby attached
and by this reference made a part hereof, with such changes, deletions and insertions as may be
approved by the City Attorney.
I, ESTHER C. BEIRNE, City Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the
City Council held on the 22nd day of January 2008, by the following vote, to wit:
AYES: Brockbank, Connolly, Heller, Miller & Mayor Boro
None
None
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
ESTHER C. BEIRNE, City Clerk
Project Name:
Loch Lomond Marina
Household Size
Affordability_
Income
Location:
Loch Lomond Marina
Low
2BR / 2 Ba
Developer:
San Rafael Marina, LLC, a California Limited Liability Company,
Low
3BR / 2 Ba
Or any successor in interest
65% of Median
Mod
3BR / 2 Ba
Total Units:
81 units
BMR Units:
17 units
SCHEDULE OF BMR UNITS AND SALES PRICES
Units Type
Size Lot or Unit No.
Affordability
Cateizory
Sales Price
I 2BRM 2 Ba
1290 2"d story Flat
65% of Median
Low
$182,0001'
I 3BRM 2 Ba
1856 2"d story Flat
90% of Median
Mod
$295,000L'
5 3BRMI 2 Ba
1518-1790 Townhouse
65% of Median
Low
$206,000L"'
6 3BRM/ 2 Ba
1518-1845 Townhouse
90% of Median
Mod
$ 295,0001-'
2 3 BRM/2 Ba
1958 & 2025 Cottage
65% of Median
Low
$ 206,000-L"
2 3 BRM/2 Ba
1958 & 2025 Cottage
90% of Median
Mod
$295,0001"
Following are the household size and income used to establish these sales prices:
Cateaory
Type
Household Size
Affordability_
Income
Low
2BR / 2 Ba
Three Persons
65% of Median
Low
3BR / 2 Ba
Four Persons
65% of Median
Mod
3BR / 2 Ba
Four Persons
90% of Median
Loan rate and term and loan -to -value ratio used to establish the above sales prices:
Mortgage Rate: 6.00 fixed-rate
Term / Amortization: 30 yr. / 30 yr.
Loan -to -Value Ratio: 95%
Monthly Homeowners Association Fees: $200
Median Income: FY2007 Median Income-HCD effective 4/18/07
Recalculation of the above sales price shall be permitted at the time of receipt by Marin Housing
Authority of the Developer's written notice one hundred twenty (120) days prior to the issuance of
Certificates of Occupancy for the Unit if either: (1) it is determined that the above -stated mortgage
rate is different from the then -current market interest rate; or, (ii) it is determined that the median
income for Marin County as determined by the CA Housing and Community Development
Department has changed from that set forth in Exhibit "D" attached hereto. Upon receipt of the
Developer's 120 -day notice, the sales price shall be recalculated by Marin Housing Authority using
the most affordable available mortgage rate for a 30 -year, fixed-rate mortgage as determined by
Marin Housing Authority and using the most recent median income for Marin County as determined
$55,575-L'
$61,750-L`
$85,500�1
by the CA Housing and Community Development Department. Such an adjustment to the sales price
shall be allowed more than one time only if mutually agreed by all the parties to this Agreement.
EXHIBIT "C"
Project Name: Loch Lomond Marina
Location: Loch Lomond Marina
Developer: San Rafael Marina, LLC, a California Limited Liability Company,
Or any successor in interest
Eliaibilitv Reauirements
In determining and certifying eligibility of applicants for the subject project, Marin Housing Authority shall adhere
to the following criteria:
1. To be designated as "low-income," the applicant's total household annual income may not exceed 80% of
the current median income for Marin County as determined by the California Department of Housing and
Community Development, and as adjusted for household size.
2. To be designated as "moderate income," the applicant's total household annual income may not exceed
120% of the current median income for Marin County as determined by the California Department of Housing
and Community Development, and as adjusted for household size.
The total value of the applicant household's assets may not exceed 75% of the sales price of the unit.
4. The applicant must qualify as a "First-time Homebuyer" defined as not having previously owned a principal
residence.
5. To be eligible to purchase a two-bedroom unit, the applicant must have at least two persons in his/her
household.
Priorities for the Drawing
In selecting prospective purchasers from among all eligible applicants, a drawing shall be conducted. The City of
San Rafael has determined that the following priorities shall be employed in conducting the drawing to select
prospective purchasers. All names shall be drawn from the group of applicants falling within the first priority
before drawing names from the second and subsequent priority groups.
1. First priority in the drawing shall go to applicants living or working in Marin County.
2. Second priority in the drawing shall go to all other applicants.
BMR Housing Agreement—San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 9 of 11
N
EXHIBIT "D" MAR N
HOUSING
Melting Housing Moro Mmdebls
4020 Civic Center Drive
San Rafael, CA 94903
(415) 491-2550
Marin County FY 2008 CA Dept HCD Median Household Income
Schedule
Effective 2/28/2008
Household
Ultra Low Income --*I+-
Low Income
I l<
Moderate Income
I I
size
35%
50%
65%
80%
90%
Median
120%
1
23,300
33,250
43,250
53,200
59,850
66,500
79,800
2
26,600
38,000
49,400
60,800
68,400
76,000
91,200
3
29,950
42,750
55,600
68,400
76,950
85,500
102,600
4
32,250
47,500
61,750
76,000
85,500
95,000
114,000
5
35,900
51,300
66,700
82,100
92,350
102,600
123,100
6
38,550
55,100
71,650
88,150
99,200
110,200
132,250
7
41,250
58,900
76,550
94,250
106,000
117,800
141,350
8
43,900
62,700
81,500
100,300
112,850
125,400
150,500
This median income schedule has been prepared by the Marin Housing Authority. It is based on the Official
State Income Limits for 2008 for Marin County published by the California Dept. of Housing and Community
Development on February 28, 2208, which includes the figures shown in the "Median" column above.
The percentage columns are calculated mathematically, specifically for use in the Below Market Rate Program. Note that the
categories above grouped as "Low" and "Ultra Low" is not the same as the State's numbers for "Lower", "Very Low" or "Extremely
Low". This is because the State's Health and Safety Code requires that those categories will be the same as the equivalent levels
published by HUD for its Section 8 programs. The calculations are rounded to the nearest $50.
BMR Housing Agreement -San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 10 of 11
EXHIBIT "E"
SAMPLE RESALE RESTRICTION
BMR Housing Agreement— San Rafael Marina, LLC / City of San Rafael / Marin Housing Authority 5/5/2008
Page 11 of 11
Recording Requested by:
Marin Housing Authority
When Recorded Return to:
Marin Housing Authority
Attention: BMR Program
4020 Civic Center Drive
San Rafael, CA 94903-4173
RESALE AND REFINANCING RESTRICTION AGREEMENT AND
OPTION TO PURCHASE
Owner(s):
Property Address:
Name of Development:
Local Jurisdiction:
Income Category of Owner:
Purchase Price:
NOTICE: THIS AGREEMENT RESTRICTS THE REFINANCE AND TRANSFER OF
YOUR PROPERTY.
RECITALS
This Resale and Refinancing Restriction Agreement and Option to Purchase ("Agreement") is
entered into by and between ("Owner") and the Housing Authority of the
County of Marin (the "Authority") regarding certain improved real property located at
, California (the "Premises").
A. The Premises are described more fully on Exhibit A attached hereto and
incorporated herein by reference and are subject to the terms and conditions set forth in this
Agreement.
B. The Premises are being made available for purchase by an eligible low or
moderate income purchaser at a below-market purchase price pursuant to the Below Market Rate
Home Ownership Program ("Program") administered by the Authority on behalf of the above-
named Local Jurisdiction ("Locality"). This Agreement is entered into pursuant to
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Ca1HFA approved
[insert citation to City ordinance that requires continuing affordability, i.e., Chapter 16,
Section 14.16.030 of the San Rafael Municipal Code] (the "Legal Requirements").
C. Owner is an eligible low or moderate income purchaser under the Program
(defined below), intends to live in the Premises as an owner -occupant and agrees to maintain the
Premises as Owner's principal residence.
D. Pursuant to the Legal Requirements, the Authority and the Locality are required
to ensure the continued affordability of the Premises as an Affordable Unit, and the Authority
and the Locality therefore require the Owner to execute this Agreement as a condition of the
Owner's purchase of the Premises. The Owner has agreed to execute and comply with this
Agreement in consideration of the Authority's agreement to approve the sale of the Premises to
the Owner at an affordable price which is below the fair market value of the Premises.
E. In order to maintain and preserve the Premises as housing affordable to eligible
low or moderate income purchasers, it is necessary to restrict the use, financing, and resale price
of the Premises as provided in this Agreement. Such controls prevent initial and subsequent
purchasers from using the property for purposes incompatible with the Program and realizing
unwarranted gains from sales of the Premises at unrestricted prices. The terms and conditions of
this Agreement provide the necessary occupancy, financing, and resale controls to ensure that the
Premises are used, maintained and preserved as housing affordable to eligible low or moderate
income purchasers.
F. The Premises subject to occupancy, financing, and resale controls constitute a
valuable community resource by providing decent, safe and sanitary housing to low or moderate
income purchasers who otherwise would be unable to afford such housing. To protect and
preserve this resource it is necessary, proper and in the public interest for the Authority to
administer the occupancy, financing, and resale controls by means of this Agreement.
G. Pursuant to Health and Safety Code Section 33413(b)(2)(A)(i), specified
percentages of all new and substantially rehabilitated dwelling units developed in redevelopment
project areas in a local jurisdiction shall be available at affordable housing cost to persons and
families of low or moderate income and to very low income households, and such requirements
shall be set forth in recorded covenants running with the land, enforceable by the Locality or the
Redevelopment Agency of the Locality. This Agreement is intended to implement this
requirement of law, if applicable, and to cause the Premises to be eligible for redevelopment
housing production credit pursuant to Section 33413(b)(2)(A)(i).
H. The purpose of this Agreement is to place financing and resale controls on the
Premises and to require the payment of any excess proceeds of sale or excess rental proceeds to
the Authority. This Agreement also provides the Authority an option to purchase the Premises at
a restricted price, given in consideration of the economic benefits to the Owner resulting from
purchase of the Premises at a below market price under the Program.
I. This Agreement is secured by the Authority Deed of Trust described in paragraph
23 below.
1220\07\217365.310.6.2005 2
CaIHFA approved
NOW, THEREFORE, IN CONSIDERATION OF THE SUBSTANTIAL ECONOMIC
BENEFITS INURING TO OWNER AND THE PUBLIC PURPOSES TO BE ACHIEVED
UNDER THE PROGRAM, OWNER HEREBY GRANTS TO THE AUTHORITY THIS
OPTION ON THE FOLLOWING TERMS AND CONDITIONS.
1. Owner Occunancv Required.
Owner agrees and acknowledges that the Authority's acceptance of Owner's participation
in the Program and purchase of the Premises is conditioned upon Owner's continuing occupancy
of the Premises. Owner shall use and maintain the Premises as Owner's principal residence.
Without limiting the generality of the foregoing, any absence from the Premises by Owner for a
period of sixty (60) or more consecutive days shall be deemed an abandonment of the Premises
as the principal residence of Owner, in violation of the conditions of this paragraph, and will be
deemed a default by Owner for which the Authority may exercise its Option to purchase the
Premises pursuant to paragraphs 3 and 4 below. Upon request of the Authority, Owner shall
certify Owner's continuing compliance with Program conditions and provide such documents
and other evidence as may be requested to verify Owner's compliance.
2. No Renting or LeasinLy of Premises.
The Owner shall not rent or lease the Premises to another party. The Owner may apply to
the Authority for written approval of a temporary and limited exception to the leasing prohibition
of this Paragraph in the event of extended hospitalization or convalescent care of Owner, or other
hardship circumstance, to be determined by the Authority. Rentals approved by the Authority
shall not exceed twelve (12) months, shall be to a low or moderate income tenant (with income
eligibility certified by the Authority), and rent shall not exceed the Owner's monthly cost of
mortgage payments, property taxes, homeowners' association fees, and insurance ("Limited
Rent"). Any rental or lease of the Premises in violation of this Agreement is prohibited, and
shall be a Default by Owner under this Agreement for which the Authority may exercise its
Option to purchase the Premises pursuant to paragraphs 3 and 4 below. The Owner further
agrees that, in the event the Owner rents or leases the Premises to a third party in violation of this
paragraph 2, any excess rents paid to the Owner by the lessee over the Limited Rent ("Excess
Rental Proceeds") shall be due and payable to the Authority immediately upon receipt thereof by
the Owner. Such Excess Rental Proceeds shall be considered a recourse debt of the Owner to the
Authority, which the Authority may collect by legal action against the Owner, including by
foreclosure under the Authority Deed of Trust.
3. Grant of Option to Purchase, Assignment of Ovtion by Authority,.
a. Owner hereby grants and gives to the Authority a right to purchase all of Owner's
right, title and interest in and to the Premises upon the occurrence of events specified in
paragraph 4 of this Agreement ("Option"), subject to the terms and conditions contained herein.
b. The Authority may assign the Option to the Locality or another government entity
or to a low or moderate income purchaser who meets the eligibility qualifications established by
the Authority under the Program. The Authority's assignment of the Option shall not extend any
1220\07\217365.310.6.2005 3
CaIHFA approved
time limits contained herein with respect to the exercise period of the Option or the period within
which the Premises must be purchased. As used in this Agreement, the term "Authority" shall
mean the Authority and any assignee to which it has assigned the Option under this paragraph.
Notice of any such assignment shall be given to the beneficiary of record under any deed of trust
that secures any financing used to purchase the property.
C. If the Authority or its assignee exercises the Option, the Authority shall charge a
two percent (2%) transaction fee, payable in equal shares by the Owner and the new purchaser of
the Premises. The transaction fee shall not be incorporated into the Restricted Resale Price of
the Premises, nor shall it cause the Restricted Resale Price to be adjusted.
d. The Authority acknowledges and agrees that the Option shall only be exercised by
the Authority for the purposes of retaining the Premises as an affordable housing unit pursuant to
the Legal Requirements and that the Premises may only be resold by the Authority as an
affordable housing unit in furtherance of the Program.
4. Events Giving Rise to Right to Exercise Oution.
The Authority shall have the right to exercise its Option upon the occurrence of any of
the following events (an "Option Event"):
a. Receipt by the Authority of a Notice of Intent to Transfer (defined in paragraph 5
below);
b. Any actual, attempted or pending sale, conveyance, transfer, lease or other
attempted disposition of the Premises or of any estate or interest therein, except as provided in
paragraph 15 below;
above;
C. Failure by Owner to owner -occupy the Premises in violation of paragraph 1
d. Renting -out of the Premises by Owner in violation of paragraph 2 above;
e. Any actual, attempted or pending encumbrance of the Premises, including without
limitation by way of mortgage or deed of trust, or by judgment, mechanics, tax or other lien,
except as provided in paragraph 17 below;
f. Recordation of a notice of default and/or notice of sale pursuant to California
Civil Code section 2924 (or successor provisions) under any deed of trust or mortgage with a
power of sale encumbering the Premises;
g. Commencement of a judicial foreclosure proceeding regarding the Premises;
h. Execution by Owner of any deed in lieu of foreclosure transferring ownership of
the Premises;
i. Commencement of a proceeding or action in bankruptcy, whether voluntary or
involuntary, pursuant to Title 11 of the United States Code or other bankruptcy statute, or any
1220\07\217365.310.6.2005 4
CaIHFA approved
other insolvency, reorganization, arrangement, assignment for the benefit of creditors,
receivership or trusteeship, in which the Owner is the debtor;
j. Receipt by the Authority of a Notice of Death of Owner which states that no
inheriting person desires to occupy the Premises or failure of an Inheriting Owner to comply
with the procedures set forth in paragraph 16 below or failure of an Inheriting Owner to qualify
for the Program pursuant to paragraph 16 below; or
k. The Authority has issued a Consent to Transfer pursuant to paragraph 5c below,
but the proposed transferee fails to execute a new Resale Restriction Agreement in the form
provided by the Authority within thirty (30) days of the date of the Consent to Transfer; or
1. Any other Default by Owner pursuant to paragraph 20 of this Agreement.
5. Method of Exercisine the Oution.
a. Notice of Intent to Transfer. If Owner desires to sell, convey, transfer, lease,
encumber or otherwise dispose of the Premises or of any estate or interest therein, Owner shall
notify Authority in writing to that effect (the "Notice of Intent to Transfer"). The Notice of
Intent to Transfer shall also state the street address of the Premises, Owner's full name or names,
the address and telephone number at which Owner shall be contacted if not at the Premises, and
shall be delivered to the Authority in the manner set forth in paragraph 26 below. The Notice of
Intent to Transfer shall be in substantially the form attached hereto and incorporated herein as
Exhibit B. The Owner may not wish to contract with a real estate broker to sell the
Premises until the Owner has received from the Authoritv a Notice of Exercise or Consent
to Transfer pursuant to subpara2rauhs 5 b and 5 c below, as the services of a broker will
not be required if the Authoritv exercises the Option to purchase the Premises pursuant to
Para, ravhs 3 through 5„ of this Agreement and because the Authoritv will charge a
transaction fee. as detailed in Paragraph 5 d above, that will be pavable by Owner and the
new purchaser, in addition to anv broker's fees.
b. Notice of Exercise. Upon the occurrence of any Option Event, the Authority may
exercise its Option by delivering notice to Owner that it will exercise such Option pursuant to the
terms of this Agreement ("Notice of Exercise"). The Notice of Exercise will include the
Authority's calculation of the Restricted Resale Price and may be in the form attached hereto and
incorporated herein as Exhibit C, or in such other form as the Authority may from time to time
adopt. The Notice of Exercise shall be delivered to the Owner in the manner set forth in
paragraph 26 below. If the Option Event relates to the potential foreclosure of a mortgage under
paragraphs 4 f, g, or h, then the Authority shall also deliver the Notice of Exercise to the
mortgagee or beneficiary under such mortgage, at such mortgagee's or beneficiary's address of
record in the Office of the Recorder of the County of Marin.
C. Notice of Consent to Transfer. If the Authority does not exercise the Option, it
will inform the Owner of the amount of the Restricted Resale Price of the Premises and the
maximum income of a household eligible to purchase the Premises at the Restricted Resale Price
("Income Eligible Purchaser"). If the Owner locates an Income Eligible Purchaser and requests
Authority approval of the sale to such purchaser at the Restricted Resale Price, the Authority
1220\07\217365.310.6.2005
Ca1HFA approved
may give its consent to the sale ("Consent to Transfer"), which consent shall be conditioned upon
income certification of the proposed transferee by the Authority and the proposed transferee's
agreement to enter into a new fifty (50) -year Resale Restriction Agreement similar to this
Agreement, within thirty (30) days after the Consent to Transfer has been delivered to Owner. If
the proposed transferee fails to qualify as an Income Eligible Purchaser or fails to execute and
deliver such an Agreement within the thirty (30) -day period, then the Consent to Transfer shall
expire and the Authority may exercise the Option as if no Consent to Transfer had been
delivered.
d. Time Period for Authoritv Notices. The Authority must deliver a Consent to
Transfer, if applicable, not later than sixty (60) days after the date that it receives notification of
an Option Event. The Authority must deliver a Notice of Exercise, if applicable, on or before the
later to occur of the following dates: (1) sixty (60) days after the date that the Authority receives
notification of an Option Event or (2) thirty (30) days after a Consent to Transfer has expired.
For purposes of computing commencement of the delivery periods, the Authority shall be
deemed to have notification of an Option Event on the following dates: (i) if the Option Event is
the recordation of a notice of default under a mortgage which is senior in lien priority to this
Agreement, then the Authority shall be deemed to have received notice of the Option Event on
the date that is fifteen (15) days after the date of the recordation of the notice of default; (ii) the
date that it actually receives a written Notice of Intent to Transfer, notice of Default under a
mortgage junior in lien priority to this Agreement, summons and complaint or other pleading, or
other writing specifically stating that an Option Event has occurred; or (iii) if an Option Event is
triggered by some other Default by Owner hereunder, the Authority shall be deemed to have
notification of the Option Event on the date the Authority issues a written notice to Owner that
the Default constitutes an Option Event hereunder. The Authority shall have no obligation to
deliver a Notice of Exercise or Consent to Transfer, and the applicable time period for exercise
of the Option shall not commence to run, unless and until it has received or issued a written
notification of an Option Event in the manner specified in this subparagraph. If there is a stay or
injunction imposed by court order precluding the Authority from delivering its Consent to
Transfer or exercising the Option within the applicable time period, then the running of such
period shall be tolled until such time as the stay is lifted or injunction dissolved and the
Authority has been given written notice thereof, at which time the period for delivery of a
Consent to Transfer or exercise of the Option shall again begin to run.
e. Right of Authoritv to Reinstate Mortgages. If the Option Event is the recordation
of a notice of default, then the Authority shall be deemed to be Owner's successor in interest
under California Civil Code Section 2924c (or successor sections) solely for purposes of
reinstatement of any mortgage on the Premises that has led to the recordation of the notice of
default. As Owner's deemed successor in interest, the Authority shall be entitled, but not
required, to pay all amounts of principal, interest, taxes, assessments, insurance premiums,
advances, costs, attorneys' fees and expenses required to cure the default. If the Authority
exercises the Option, then any and all amounts paid by the Authority pursuant to this paragraph
shall be treated as Adjustments to the Resale Price for the Premises, as defined in paragraph 11,
below.
f. Notice of Option Abandonment. If the Authority fails to deliver a Notice of
Exercise or Consent to Transfer within the above -stated time periods, then the Option shall
1220\07\217365.310.6.2005 6
CaiHFA approved_
terminate and have no further force and effect, and Owner may sell the Premises to a third party
pursuant to paragraph 11 below and pay Excess Sales Proceeds to the Authority pursuant to
paragraph 11 below. Thereafter, upon request by Owner and simultaneously with the close of
escrow and payment to the Authority of Excess Sales Proceeds in accordance with paragraph 11
below, the Authority shall cause to be filed for recordation in the Office of the Recorder of the
County of Marin a notice of option abandonment, which shall declare that the provisions of the
Option are no longer applicable to the Premises. If the Authority fails to record a notice of
option abandonment, the sole remedy of Owner shall be to obtain a judicial order instructing
such a recordation, and Owner shall have no right to damages against the Authority for failure to
record such notice promptly.
6. Preparation of Premises for Sale, Authoritv Inspection of Premises.
a. Following delivery to the Authority by the Owner of the Notice of Intent to
Transfer, the Owner shall prepare the Premises for sale, as follows:
i. within thirty (30) days of delivery of the Notice of Intent to Transfer, the
Owner shall obtain and deliver to the Authority a current written report of inspection of the
Premises by a licensed structural pest control operator;
ii. within the sooner of (a) sixty (60) days from the date of delivery of the
Notice of Intent to Transfer, or (b) prior to close of escrow on the Transfer, the Owner shall
repair, or shall cause the homeowners' association, if applicable, to repair, all damage noted in
Section I of the pest report including damage caused by infestation or infection by wood -
destroying pests;
b. Following delivery to the Authority by the Owner of the Notice of Intent to
Transfer, the Authority shall be entitled to inspect the Premises one or more times prior to the
close of escrow to determine the amount of any Adjustments to the Resale Price. Before
inspecting the Premises, the Authority shall give Owner not less than forty-eight (48) hours
written notice of the date, time and expected duration of the inspection. The inspection shall be
conducted between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, unless another
date and time is mutually agreed to by the parties. Owner shall make the Premises available for
inspection on the date and at the time specified in the Authority's request for inspection.
C. If the Premises are vacant, the Owner shall maintain utility connections until the
close of escrow on the Transfer;
d. In the event of exercise of the Option by the Authority or its assignee, the Owner
shall permit a final walk-through of the Premises by the Authority and/or its assignee in the final
three (3) days prior to close of escrow on the Transfer.
7. Escrow.
Promptly after delivering a Notice of Exercise, the Authority shall open an escrow
account for its purchase of the Premises. Close of escrow shall take place on such date which is
1220\07\217365.3_10.6.2005 7
Ca]HFA approved
the later to occur of the following: (a) ninety (90) days after a Notice of Intent to Transfer has
been delivered by Owner to the Authority, or (b) ten (10) days after Owner has done all acts and
executed all documents required for close of escrow. Prior to the close of escrow, the Authority
shall deposit funds to pay the Restricted Resale Price, as defined in paragraph 10 below, plus or
minus any Adjustments, as defined in paragraph 11 below. Closing costs and title insurance
shall be paid pursuant to the custom and practice in the County of Marin at the time of the
opening of escrow, or as may be provided otherwise by mutual agreement. Owner agrees to do
all acts and execute all documents necessary to enable the close of escrow and transfer of the
Premises to the Authority.
8. Proceeds of Escrow; Removal of Exceutions to Title.
Prior to close of escrow, Owner shall cause the removal of all exceptions to title to the
Premises that were recorded after the date of this Agreement. All amounts deposited into escrow
by the Authority shall be applied first to the payment of any and all liens and encumbrances
recorded against the Premises, and thereafter to the payment of escrow fees and closing costs.
Any amounts remaining after the amounts deposited into escrow by the Authority have been so
applied shall be paid to Owner upon the close of escrow. If the amounts deposited into escrow
by the Authority are insufficient to satisfy all liens and encumbrances recorded against the
Premises, then Owner shall deposit into escrow such additional sums as may be required to
remove said liens and encumbrances. In the event that the Authority agrees to proceed with
close of escrow prior to the date that Owner has caused all exceptions to title recorded after the
date of this Option to be removed, then Owner shall indemnify Authority from any and all costs,
expenses or liabilities (including attorneys' fees) incurred or suffered by Authority that relate to
such exceptions and their removal as exceptions to title to the Premises.
9. Restricted Resale Price.
Prior to adjustment pursuant to paragraph 11, the resale price of the Premises ("Restricted
Resale Price") shall be the lowest of:
a. Median Income Price. The original price paid by Owner for acquisition of the
Premises pursuant to the Program ("Base Price") increased (but not decreased) by an amount, if
any, equal to the Base Price multiplied by the percentage increase in the median household
income for a four -person household for the San Francisco Primary Metropolitan Statistical Area
(PMSA)--San Francisco, San Mateo and Marin Counties --published by the Department of
Housing and Urban Development, Office of Economic Affairs, Economic and Market Analysis
Division ("Median Income") between the Recording Date (defined below in paragraph 21) and
the date that the Authority receives notification of an Option Event.
b. Index Price. The Base Price increased (but not decreased) by an amount, if any,
equal to the Base Price multiplied by the percentage increase in the Consumer Price Index for All
Urban Consumers for the San Francisco Bay Area published by the U.S. Department of Labor,
Bureau of Labor Statistics ("Index") between the Recording Date and the date that the Authority
receives notification of an Option Event.
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CaIHFA approved
C. Fair Market Value. The fair market value of the Premises as determined by an
appraiser selected and paid for by Owner and approved in writing by the Authority.
d. Restricted Resale Price Worksheet. To compute the Restricted Resale Price, the
Authority may use the Restricted Resale Price Worksheet attached as Exhibit D hereto, or such
other form as the Authority may from time to time adopt.
10. Adiustments to Restricted Resale Price.
The Restricted Resale Price shall be adjusted by the following ("Adjustments"):
a. Capital Improvements. An increase for capital improvements made to the
Premises by Owner, and which materially add to the value of the Premises, provided that the
type of improvement and the cost thereof had been previously accepted in writing by the
Authority after original written documentation of the cost was provided to the Authority for
verification. The amount of the Adjustment shall equal the original cost of any capital
improvements depreciated in a straight-line basis based upon the estimated useful life of the
improvement stated in the Authority's prior written acceptance of said improvement. Exhibit F
attached hereto provides a form to be utilized by the Owner to request Authority approval of the
capital improvement and cost.
b. Special Assessments. An increase for the principal amount of special assessments
(and not including interest, finance charges, or penalties) paid by Owner to the Premises
homeowners' association to pay special repair or litigation costs assessed against all
homeowners' association members, but only if such costs are actually paid by Owner, and
subject to approval on a case-by-case basis by the Authority.
C. Damages. A decrease by the amount necessary to repair damages to the Premises,
if any, and to place the Premises into saleable condition as reasonably determined by the
Authority, including amounts attributed to cleaning, painting, replacing worn carpeting and
draperies, making necessary structural, mechanical, electrical and plumbing repairs and repairing
or replacing built-in appliances and fixtures.
d. Advances by Authority. A decrease in an amount equal to the sum of all costs
advanced by the Authority for the payment of mortgages, taxes, assessments, insurance
premiums, homeowner's fees and/or associated late fees, costs, interest, attorneys' fees, pest
inspections, resale inspections and other expenses related to the Premises, which Owner has
failed to pay or has permitted to become delinquent.
11. Obligations of Owner if Authoritv Does Not Exercise Ovtion• Payment of Excess
Sales Proceeds from Unrestricted Sale.
If the Authority records a notice of abandonment of the Option pursuant to Paragraph 5 f
of this Agreement, then the Premises may be sold by Owner to a third party without restriction as
to price. Upon such sale, Owner shall pay to Authority an amount equal to one hundred percent
(100%) of the difference between (a) the actual sales price net of reasonable and customary real
122M7\217365.3_10.6.2005 9
CaIHFA approved
estate commissions paid (such commissions not to exceed six percent (6%) of the actual sales
price), and (b) the Restricted Resale Price plus/minus Adjustments (the "Excess Sales
Proceeds"). This amount shall be paid to the Authority upon close of escrow on the sale of the
Premises. Owner shall not receive any proceeds from the sale, and the Authority shall not
release this Agreement or terminate the Authority Deed of Trust, unless and until the Authority
has been paid in full the amount determined pursuant to this paragraph. The Owner shall provide
the Authority with the following documentation associated with such a sale:
the name and address of the purchaser;
2. the final sales contract and all other related documents which shall set forth all the
terms of the sale of the Premises, including a HUD -1 Settlement Statement. Said documents
shall include at least the following terms: (a) the sales price; and (b) the price to be paid by the
purchaser for the Owner's personal property, if any, for the services of the Owner, if any, and any
credits, allowances or other consideration, if any;
3. a written certification, from the Owner and the purchaser in a form acceptable to
the Authority that the sale shall be closed in accordance with the terms of the sales contract and
other documents submitted to and approved by the Authority. The certification shall also
provide that the purchaser or any other party has not paid and will not pay to the Owner, and the
Owner has not received and will not receive from the purchaser or any other party, money or
other consideration, including personal property, in addition to what is set forth in the sales
contract and documents submitted to the Authority. The written certification shall also include a
provision that in the event a Transfer is made in violation of the terms of this Agreement or false
or misleading statements are made in any documents or certification submitted to the Authority,
the Authority shall have the right to foreclose on the Premises or file an action at law or in equity
as may be appropriate. In any event, any costs, liabilities or obligations incurred by the Owner
and the purchaser for the return of any moneys paid or received in violation of this Agreement or
for any costs and legal expenses, shall be borne by the Owner and/or the purchaser and they shall
hold the Authority and its designee harmless and reimburse their expenses, legal fees and costs
for any action they reasonably take in good faith in enforcing the terms of this Agreement;
4. a copy of the MAI or other qualified appraisal for the Premises; and
5. upon the close of the proposed sale, a copy of the final sales contract, HUD -1
Settlement Statement, escrow instructions, and any other documents which the Authority may
reasonably request.
12. Prioritv and Effectiveness of the Option.
a. Recordation. An Agreement substantially similar to this Agreement shall be
executed by the Authority and the transferee and shall be filed for recordation in the Office of the
Recorder of the County of Marin prior to any sale, conveyance, transfer or other disposition of
the Premises, or of any estate or interest therein, by Owner except any deed of trust or other
instrument securing financing used to purchase the Premises. The Option shall have priority
over any subsequent sale, conveyance, transfer, lease or other disposition or encumbrance of the
Premises, or of any estate or interest therein, including any mortgages or equity lines of credit,
1220\07\217365.3_10.6.2005 10
Ca1HFA approved
except any deed of trust or other instrument securing financing used to purchase the Premises.
Except as otherwise provided in paragraphs 5e and 13b, the exercise of the Option by the
Authority at any time and from time to time shall not extinguish the Option or cause a merger of
the Option into any estate or other interest in the Premises, and the Option shall continue to exist
and be effective with respect to the Premises against any subsequent owner in accordance with
the terms and conditions hereof.
b. Reauest for Notice of Default. The Authority shall file a Request for Notice of
Default for recordation in the Office of the Recorder of the County of Marin promptly upon
execution of this Agreement (see Exhibit E).
13. Survival of Option Upon Transfer.
a. In General. The Authority's rights to exercise the Option shall survive any
transfer of the Premises by Owner. The Option may be exercised against the Premises whether
owned, possessed or occupied by (i) an eligible low or low or moderate income purchaser, (ii)
any successor, transferee, assignee, heir, executor, or administrator of an eligible low or low or
moderate income purchaser, including a debtor-in-possession, debtor or trustee pursuant to Title
11 of the United States Code, or (iii) any person owning, possessing or occupying the Premises
who does not meet the eligibility qualifications established by the Authority under the Program
(collectively all referred to and defined herein as "Owner"). Notwithstanding the foregoing, the
Option shall not survive (i) the sale and transfer of the Premises to the mortgagee or a third party
purchaser pursuant to a judicial or non judicial foreclosure under a power of sale contained in a
first mortgage or first deed of trust that secures any financing used to purchase the property and
recorded against the Premises in the Office of the Recorder of the County of Marin on or prior to
the date of this Agreement (a "Purchase Money First Mortgage"); (ii) an assignment or deed in
lieu of foreclosure under a Purchase Money First Mortgage, provided that either a notice of
default was recorded under the Purchase Money First Mortgage, or, if no notice of default was
recorded, only if the Authority has been given written notice of default under such Purchase
Money First Mortgage with a sixty (60) -day cure period and the Authority shall not have cured
or commenced to cure the default within such sixty (60) -day period or commenced to cure and
given its firm commitment to complete the cure in form and substance acceptable to the holder of
the Purchase Money First Mortgage Lender, or (iii) the recording of Owner's conveyance of the
Premises to the Authority, or its assignee, provided the conveyance is in accordance with the
terms of this Agreement.
b. HUD -Insured Mortizal;es. If Owner has acquired the Premises by a mortgage
insured by the Secretary of the United States Department of Housing and Urban Development,
and a notice of default has been recorded pursuant to California Civil Code Section 2924 (or
successor provisions), this Option shall automatically terminate if title to the Premises is
transferred by foreclosure or deed -in -lieu of foreclosure, or if the insured mortgage is assigned to
the Secretary.
C. CalHFA Mortl;aaes. If Owner has obtained financing used to purchase the
Premises from the California Housing Finance Agency ("Ca1HFA"), all financing obtained from
Ca1HFA and used to purchase the Premises, whether secured by one or multiple deeds of trust
1220\07\217365.3.10.6.2005
11
CaIHFA approved
from the Owner to Ca1HFA, shall be deemed a "Purchase Money First Mortgage" for purposes of
this Agreement.
14. Voidable Transfers.
As long as the Option has not been abandoned pursuant to paragraph 5 f, any actual or
attempted sale, conveyance, transfer or other disposition of the Premises, or of any estate or
interest therein, in violation of the terms and conditions of this Option, shall be voidable at the
election of the Authority.
15. Permitted Transfers.
Any Transfer of the Premises will be subject to the provisions of this Agreement
including, without limitation, the Option described in paragraph 3 above. "Transfer" means any
sale, assignment or transfer, voluntary or involuntary, of any interest in the Premises, including,
but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest,
an interest evidenced by a land contract by which possession of the Premises are transferred and
Owner retains title, or a deed of trust. Any Transfer without satisfaction of the provisions of this
Agreement is prohibited. The following Transfers of the Premises will not authorize the exercise
of the Option: (i) a good faith Transfer to an existing spouse or Domestic Partner or the Owner
who is also a co-owner of the Premises, provided the transferee affirmatively assumes Owner's
obligations under this Agreement and the Authority Deed of Trust; (ii) a good faith Transfer by
an Owner to a spouse or Domestic Partner where the spouse or domestic partner becomes the co-
owner of the Premises, provided the transferee affirmatively assumes Owner's obligations under
this Agreement and the Authority Deed of Trust; (iii) a Transfer between spouses as part of a
marriage dissolution proceeding, provided the transferee affirmatively assumes Owner's
obligations under this Agreement and the Authority Deed of Trust; (iv) a Transfer by Owner into
an inter vivos trust in which Owner is the beneficiary; (v) a Transfer by Owner to an existing
spouse or Domestic Partner of Owner by devise or inheritance following the death of Owner; (vi)
a deed of trust or imposition of a lien subordinate to the Authority Deed of Trust and meeting the
requirements of Paragraph 17 of this Agreement, or (vii) refinance of the Purchase Money First
Mortgage Loan meeting the requirements of Paragraph 17 of this Agreement; provided, however,
that Owner shall provide written notice of all such transfers to the Authority; and Owner shall
continue to occupy the Premises as his or her principal place of residence (except where the
transfer occurs pursuant to subparagraph (iii) above, in which event the transferee shall owner -
occupy the Premises). For purposes of this paragraph 15, "Domestic Partners" shall mean two
unmarried people, at least eighteen (18) years of age, who have lived together continuously for at
least one (1) year and who are jointly responsible for basic living expenses incurred during their
domestic partnership. Domestic Partners may not be persons related to each other by blood or
adoption such that their marriage would be barred in the state of California. For purposes of this
paragraph, an individual shall be considered a domestic partner of Owner upon presentation of
an affidavit or other acceptable evidence by Owner to the Authority.
16. Inheritance.
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CaIHFA approved
In the event a Transfer occurs by devise or inheritance due to death of the Owner, the
administrator of the Owner's estate or the person inheriting the Premises shall provide written
notice to the Authority of the Owner's death within thirty (30) days of the date of death (the
"Notice of Death of Owner"). If more than one person has inherited the Premises, the notice
shall state which inheriting person, if any, desires to occupy the Premises as his or her principal
place of residence (the "Inheriting Owner"), or that no inheriting person wishes to occupy the
Premises, and the following procedures shall apply:
a. If the Notice of Death of Owner states that the Premises have been inherited by
the spouse or domestic partner of the Owner who intends to occupy the Premises as his or her
principal place of residence, the Authority may request documentation of spousal or domestic
partner status and then may approve the Transfer as a permitted transfer pursuant to Paragraph
15(v) above and no Option Event will be deemed to have occurred in connection with such
Transfer.
b. If the Notice of Death of Owner states that no inheriting person wishes to occupy
the Premises, an Option Event shall be deemed to have occurred, as of the date the Authority
receives the Notice of Death of Owner.
C. If the Notice of Death of Owner states that one of the inheriting persons wishes to
occupy the Premises and he or she is the child or stepchild of the deceased Owner (an "Inheriting
Family Member"), he or she shall provide the Authority with documentation that he or she is the
child or stepchild of the deceased Owner and with income information, to be verified by the
Authority, so that the Authority may determine if the Inheriting Owner is an Inheriting Family
Member and is a low or moderate income household, eligible to participate in the Program
("Income Eligible Household"). If the Inheriting Owner fails to provide required documentation
of his or her relationship to the Owner, or financial information, he or she shall be deemed not to
qualify as an Inheriting Family Member and/or Income Eligible Household, as applicable. If the
Inheriting Owner qualifies as an Inheriting Family Member and as an Income Eligible
Household, he or she shall succeed to the Owner's interest and obligations under this Agreement
and the Authority Deed of Trust and a new Agreement and Authority Deed of Trust, with new
effective dates and a new term, but including the original purchase price paid by the deceased
Owner as the base purchase price, shall be executed between the Inheriting Family Member and
the Authority and recorded against the Premises. If the Inheriting Owner fails to qualify as an
Inheriting Family Member or as an Income Eligible Household an Option Event shall be deemed
to have occurred as of the date the Authority notifies the estate representative that the Inheriting
Owner fails to qualify and the Authority may exercise the Option pursuant to this Agreement;
provided, however that an Inheriting Family Member may own and occupy the Premises for up
to twelve (12) months following death of the Owner and prior to close of escrow on sale of the
Premises to the Authority or its assignee, so long as he or she remains in compliance with the
requirements of this Agreement and the Authority Deed of Trust. The Inheriting Family
Member shall not be required to occupy the Premises during this twelve (12) -month time period,
but shall not rent the Premises except as provided in paragraph 2 above.
d. Failure of an Inheriting Owner to follow the procedures and file the notices
described in this paragraph 16 shall constitute a Default under this Agreement.
1220\07\217365.3_ 10.6.2005 13,
Ca1HFA approved
17. Refinancing and Junior Loans.
a. Authoritv Consent Required. The Owner covenants and agrees: not to place �Lny
additional mortgage or deeds of trust, including any line of credit, on the Premises without
obtaining prior written consent of the Authority.
b. Permitted Encumbrance Amount. At no time shall the total principal amount of
all debt secured by the Premises exceed the "Permitted Encumbrance Amount", which is defined
as the greater of: (i) ninety percent (90%) of the Restricted Resale Price calculated as provided
in paragraph 9, as of the date of the Owner's written notice to the Authority of the Owner's intent
to refinance (the "Refinance Notice"); or (ii) the outstanding balance of the existing first
mortgage loan as of the date of Refinance Notice. Mortgage loans which include negative
amortization are prohibited. If escrow does not close on the refinance within one hundred twenty
(120) days of the date of the Refinance Notice, the Authority shall have the right to recalculate
the Permitted Encumbrance Amount. Owner shall not be in Default hereunder at the time of
initial purchase of the Premises by the Owner if, at that time, the initial debt secured by the
Premises exceeds the Permitted Encumbrance Amount and Owner does not further encumber the
Premises until the Permitted Encumbrance Amount complies with this paragraph.
C. Refinance of Purchase Monev First Mortgage Loan. The Authority shall permit
and approve a prepayment and refinance of the existing Purchase Money First Mortgage Loan
and shall provide for the subordination of this Agreement and the Authority Deed of Trust to the
refinanced Purchase Money First Mortgage Loan only if such refinance does not cause the total
debt secured by the Premises, including junior mortgage loans and equity lines of credit, to
exceed the Permitted Encumbrance Amount. The Authority will not approve any mortgage loan
which includes negative amortization.
d. Junior Loans and Eauitv Lines of Credit. Mortgage loans or equity lines of credit
junior in lien priority to this Agreement and the Authority Deed of Trust are not permitted,
except as when expressly approved by the Authority in writing. The Authority shall only
approve junior mortgage loans or equity lines of credit which will not cause the total of all debt
secured by the Premises (calculated assuming a maximum permitted draw on any equity line of
credit) to exceed the Permitted Encumbrance Amount. The Authority will not approve any
mortgage loan which includes negative amortization.
e. Reauest for Notice of Default. Any time an Owner enters into a new mortgage
loan, including junior mortgage loans and equity lines of credit, the Owner shall cause to be
recorded against the Premises a request for notice of default, providing for notice of default
under such loan to be delivered to the Authority.
f. Purpose of Restrictions on Refinance and Junior Loans. The Authority and the
Owner agree that the requirements of this paragraph 17 are necessary to ensure the continued
affordability of the Premises to Owner and to minimize the risk of loss of the Premises by Owner
through default and foreclosure of mortgage loans. Owner further acknowledges that violation
of the provisions of this paragraph 17 shall constitute a Default under this Agreement, for which
the Authority may exercise the Option pursuant to paragraphs 3 and 4 above.
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Ca]HFA approved
18. Limits on Liabilitv.
a. In no event shall the Authority become liable or obligated in any manner to
Owner by reason of the assignment of the Option, nor shall the Authority be in any way liable or
obligated to Owner for any failure of the Authority's assignee to consummate a purchase of the
Premises or to comply with the terms of this Option, or any escrow instructions or agreement for
the purchase of the Premises.
b. Owner acknowledges, understands and agrees that the relationship between
Owner and the Authority and Locality is solely that of an owner and administrators of an
affordable housing program, and that the Authority and Locality do not undertake or assume any
responsibility for or duty to Owner to select, review, inspect, supervise, pass judgment on, or
inform Owner of the quality, adequacy or suitability of the Premises or any other matter. The
Authority and Locality owe no duty of care to protect Owner against negligent, faulty,
inadequate or defective building or construction or any condition of the Premises and Owner
agrees that neither Owner or Owner's heirs, successors or assigns shall ever claim, have or assert
any right or action against the Authority or Locality for any loss, damage or other matter arising
out of or resulting from any condition of the Premises and will hold the Authority and Locality
harmless from any liability, loss or damage for these things.
C. Owner agrees to defend, indemnify, and hold the Authority and Locality harmless
from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys
fees that the Authority or Locality may incur as a direct or indirect consequence of: (1) Owner's
default, performance, or failure to perform any obligations as and when required by this
Agreement or the Authority Deed of Trust; (2) the failure at any time of any of Owner's
representations to the Authority or Locality to be true and correct; or (3) Owner's .purchase or
ownership of the Premises.
19. Insurance Proceeds and Condemnation Awards.
In the event the Premises are destroyed and insurance proceeds are distributed to Owner
instead of being used to rebuild the premises, or in the event of condemnation, if the proceeds
thereof are distributed to Owner, any such proceeds shall first be used to satisfy any existing
encumbrance senior to the rights of the Authority under this Agreement, and any surplus of
proceeds remaining after payment of the permitted encumbrances of the Premises shall be
distributed as follows: that portion of the surplus up to, but not to exceed the net amount that
Owner would have received pursuant to paragraphs 9 and 10 had the Authority exercised its
Option on the date of the destruction or condemnation valuation date shall be distributed to
Owner, and the balance of such surplus, if any, shall be distributed to the Authority.
20. Defaults and Remedies.
a. The following events shall constitute a "Default" by the Owner under this
Agreement:
1220\07\217365.3_ 10.6.2005 15
Ca1HFA approved
i. The Authority determines that the Owner has made a misrepresentation to
obtain the benefits of purchase of the Premises or in connection with its obligations under this
Agreement;
ii. The Owner fails to owner occupy the Premises, as required pursuant to
paragraph 1 above.
iii. The Owner rents the Premises in violation of paragraph 2 above.
iv. The Owner fails to provide information to the Authority necessary to
determine Owner's compliance with the requirements of this Agreement.
V. The Owner makes a Transfer in violation of this Agreement;
vi. An Inheriting Owner fails to comply with the requirements of paragraph
16 of this Agreement.
vii. The Owner otherwise fails to comply with any other requirements of this
Agreement and such violation is not corrected to the satisfaction of the Authority within thirty
(30) days after the date of written notice by the Authority to the Owner of such violation; or
viii. A notice of default is issued under first mortgage loan or other financing
secured by the Premises.
ix. A lien is recorded against the Premises other than the lien of a bona fide
mortgage loan permitted pursuant to paragraph 17 above.
X. Owner places a junior or senior mortgage (including equity lines of credit)
on the Premises in violation of paragraph 17 above.
xi. Owner declares bankruptcy or makes an assignment of assets for the
benefit of creditors.
b. Upon a declaration of Default by the Authority under this Agreement, the
Authority or the Locality may exercise any remedies at law or in equity, including without
limitation, any or all of the following, none of which shall be an exclusive remedy:
i. Declare all Excess Sales Proceeds and/or Excess Rental Proceeds
immediately due and payable without further demand;
ii. Invoke the power of sale under the Authority Deed of Trust;
iii. Apply to a court of competent jurisdiction for such relief at law or in
equity as may be appropriate;
iv. Take such enforcement action as is authorized under the Marin County
Code or applicable law of the Locality;
V. Declare a Default under the Authority Deed of Trust and pursue all
Authority remedies under the Authority Deed of Trust; and
1220\07\217365.3 10.6.2005 16
Ca1HFA approved
vi. Exercise the Option, and purchase the Premises at the Restricted Resale
Price.
21. Attornevs' Fees.
If the Authority, the Locality, or the Owner is required to initiate legal proceedings to
enforce its rights under this Agreement, the prevailing party in such action shall be entitled to an
award of reasonable attorneys' fees and costs in addition to any other recovery under this
Agreement.
22. Specific Performance.
Owner acknowledges that any breach in Owner's performance of Owner's obligations
under this Agreement or in the transfer of the Premises to the Authority shall cause irreparable
harm to the Authority. Owner agrees that the Authority and the Locality are entitled to equitable
relief in the form of specific performance upon its exercise of the Option, and that an award of
damages shall not be adequate to compensate the Authority or the Locality for Owner's failure to
perform according to the terms of this Agreement.
23. Authoritv Deed of Trust.
The obligations of the Owner contained in this Agreement are security by a deed of trust
on the Premises by the Owner to the Authority (the "Authority Deed of Trust").
24. Effective Date.
The obligations of the Authority contained in this Agreement shall be effective when the
Agreement is filed for record in the Office of the Recorder of the County of Marin, the date of
which is referred to in this Agreement as the "Recording Date."
25. Term of Agreement and Option.
The restrictions contained herein shall continue for a period of fifty (50) years from the
Recording Date.
26. Notices.
Except as otherwise specified in this Agreement, all notices required to be sent pursuant
to this Agreement shall be made by certified mail, return receipt requested, or by express
delivery service with a delivery receipt, and shall be deemed to have been delivered as of the
1220\07\217365.310.6.2005 17
Ca1HFA approved
date received (deemed received pursuant to Paragraph 5(d) above) or the date delivery was
refused as indicated on the return receipt, if sent to the following addresses:
AUTHORITY: Housing Authority of the County of Marin
4020 Civic Center Drive
San Rafael, California 94903-4173
Attn: Executive Director and BMR Program
OWNER: At the address of the Premises
The addresses above may be changed by notice given pursuant to this paragraph.
27. Invalid Provisions.
If any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall
be deemed severable from the remaining provisions contained in this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
28. Controlling Law.
The terms of this Agreement shall be interpreted under the laws of the State of California.
The venue for any legal action pertaining to this Agreement shall be Marin County, California.
29. No Waiver.
No delay or omission in the exercise of any right or remedy of Authority upon any
default by Owner shall impair such right or remedy or be construed as a waiver. The Authority's
failure to insist in any one or more instance upon the strict observance of the terms of this
Agreement shall not be considered a waiver of the Authority's right thereafter to enforce the
provisions of the Agreement. The Authority shall not waive its rights to enforce any provision of
this Agreement unless it does so in writing, signed by an authorized agent of the Authority.
30. Interuretation of Agreement.
The terms of this Agreement shall be interpreted so as to avoid speculation on the
Premises and to ensure to the extent possible that its sales price and mortgage payments remain
affordable to low and moderate income households. The Locality shall be considered a third
party beneficiary of this Agreement, with full rights of enforcement.
31. Covenants Running With The Land.
a. Owner hereby subjects the Premises to the covenants and restrictions set forth in
this Agreement. Owner hereby declares its express intent that the covenants and restrictions set
forth herein shall be deemed covenants running with the land in perpetuity and shall pass to and
1220\07\217365.310.6.2005 18
Ca1HFA approved
be binding upon all parties having any interest in the Premises throughout the term of this
Agreement set forth in paragraph 25. Each and every contract, deed, lease or other instrument
covering, conveying or otherwise transferring the Premises or any interest therein, as the case
may be, shall conclusively be held to have been executed, delivered and accepted subject to this
Agreement regardless of whether the other party or parties to such contract have actual
knowledge of this Agreement.
b. The Owner and the Authority hereby declare their understanding and intent that:
(i) the covenants and restrictions contained in this Agreement shall be construed as covenants
running with the land pursuant to California Civil Code Section 1468 and not as conditions
which might result in forfeiture of title by Owner; (ii) the burden of the covenants and
restrictions set forth in this Agreement touch and concern the Premises in that the Owner's legal
interest in the Premises may be rendered less valuable thereby; and (iii) the benefit of the
covenants and restrictions set forth in this Agreement touch and concern the land by enhancing
and increasing the enjoyment and use of the Premises by low and moderate income homebuyers,
the intended beneficiaries of such covenants and restrictions.
C. All covenants and restrictions contained herein without regard to technical
classification or designation shall be binding upon Owner for the benefit of the Authority and
eligible purchasers and such covenants and restrictions shall run in favor of such parties for the
entire period during which such covenants and restrictions shall be in force and effect, without
regard to whether the Authority is an owner of any land or interest therein to which such
covenants and restrictions relate.
32. Owner's Acknowledgement of Resale Restriction.
Owner hereby acknowledges and agrees that:
a. Owner hereby subjects the Premises to certain restrictions, and limits the price for
which Owner may sell the Premises and the persons to whom Owner may sell the Premises. The
resale price limitation, and other provisions contained in this Agreement, restrict the full benefits
of owning the Premises. Owner may not enjoy the same economic or other benefits from
owning the Premises that Owner would enjoy if this Agreement did not exist.
b. Absent the provisions of the Legal Requirements and the provisions of this
Agreement, the Premises could not be made available to low and moderate income purchasers at
an affordable price, including Owner.
C. Owner understands all of the provisions of this Agreement. In recognition of the
acknowledgments and agreements stated in this paragraph 32, Owner accepts and agrees to the
provisions of this Agreement with the understanding that this Agreement will remain in full force
and effect as to the Premises following any Transfer of the Premises throughout the term of this
Agreement.
d. OWNER UNDERSTANDS THAT THE DETERMINATION OF THE
RESTRICTED RESALE PRICE OF THE PREMISES CAN BE MADE ONLY AT THE TIME
OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INCREASES IN
1220\07\217365.3_10.6.2005 19
Ca1HFA approved
MEDIAN INCOME AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED AND THAT THE SALES PRICE PERMITTED HEREUNDER MAY NOT
INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL
PROPERTY WHICH IS NOT ENCUMBERED BY THIS AGREEMENT. OWNER
FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE SALES PRICE OF
THE PREMISES THE PRIMARY OBJECTIVE OF THE AUTHORITY AND THIS
AGREEMENT IS TO PROVIDE HOUSING TO LOW AND MODERATE INCOME
HOUSEHOLDS AT AFFORDABLE HOUSING COST. THE RESTRICTED RESALE PRICE
WILL ALMOST CERTAINLY BE LOWER THAN THE SALES PRICES OF OTHER
SIMILAR PROPERTIES THAT HAVE NO RESTRICTIONS.
[initialed by Owner(s)]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the
day of
OWNER(S):
THE AUTHORITY: By:
CHRISTINE GOUIG
Executive Director
1220\07\217365.3_ 10.6.2005 20
CaIHFA approved
CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code §27281)
This is to certify that the interest in real property conveyed by the Resale and
Refinancing Restriction Agreement and Option to Purchase dated
from
to the Housing
Authority of the County of Marin, a political corporation and/or governmental
agency, is hereby accepted by the undersigned officer or agent on behalf of the
Housing Authority of the County of Marin pursuant to authority conferred by
resolution #10-81, dated 5/19/81; and the grantee consents to recordation
thereof by its duly authorized officer.
Dated:
CHRISTINE GOUIG
Executive Director
Housing Authority of the County of Marin
1220\07\217365.310.6.2005