HomeMy WebLinkAboutCC Resolution 11283 (BMR Agr.)CITY COUNCIL OF THE CITY OF SAN RAFAEL
RESOLUTION NO. 11283
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING THE SIGNING OF A BELOW MARKT RATE HOUSING
AGREEMENT BETWEEN SIGNATURE @ REDWOOD VILLAGE, LLC AND THE
CITY OF SAN RAFAEL RE: REDWOOD VILLAGE
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The Vice -Mayor and the City Clerk are authorized to execute on behalf of the City of San Rafael,
a Below Market Rate Housing Agreement between SIGNATURE @ REDWOOD VILLAGE, LLC and
the City of San Rafael, a copy of which is hereby attached and by this reference made a part
hereof.
I, JEANNE M. LEONCINI, 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 17TH day of March, 2003, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller & Vice -Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT/ DISQUALIFIED: COUNCILMEMBERS: Mayor Boro (due to conflict of interest)
��-Gtc..•-"
JEANI't-M. LEONCIM, City Clerk
Recording Requested by:
City of San Rafael
When Recorded Return to:
City of San Rafael
Attention: Jeanne M. Leoncini, City Clerk
P. O. Box 151560
San Rafael, CA 94915-1560
BELOW MARKET RATE HOUSING AGREEMENT
Project Name: REDWOOD VILLAGE
Location: Los Ranchitos Road and N. San Pedro Road, San Rafael
Developer: SIGNATURE AT REDWOOD VILLAGE, LLC, or any successor in interest
This Agreement is made and entered into this day of , 2003, among the CITY
OF SAN R4FAEL, a municipal corporation (hereinafter referred to as "the City"), the HOUSING AUTHORITY
OF THE COUNTY OF MARIN, a public body, corporate and politic, created under the Housing Authority Law
of the State of California (hereinafter referred to as "Marin Housing Authority"), and SIGNATURE AT
REDWOOD VILLAGE, LLC, 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, in accordance with the provisions of the Housing Element of its General Plan, has approved the
Developer's proposed development on condition that the Developer provide therein twenty (20) dwelling units
to be sold at prices that are within the means of moderate -income households and six (6) dwelling units to be
sold at prices that are within the means of low-income households.
C. 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 requirement that the Developer make available said dwelling units at prices which are within the means of
moderate -income households.
NOW THEREFORE, it is hereby agreed by and between the parties hereto as follows:
Subject to the provisions of Section 6, below, the Developer agrees that twenty (20) dwelling units within the
project approved by the City for the property described in Exhibit "A" attached hereto will be sold to
REDWOOD VILLAGE Housing Agreement - Signature at Redwood Village, LLC � Page 1 of 10
City of San Rafael Marin Housing Authority CON 03104x''03
moderate -income households and six (6) dwellings units within the project will be sold to low-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 Units."
2. The Developer agrees that the contract sales price for the Units shall not exceed the prices set forth in Exhibit
"B" attached hereto. The 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, the selection fee described under Section 5 below or similar items.
3. The Developer agrees to offer the Units for sale only to individuals or households who have been certified as
eligible by Marin Housing Authority.
4. The Developer further agrees to give written notice to Marin Housing Authority at least one hundred and
forty (140) days prior to estimated issuance of Certificate of Occupancy for the Units (the "Availability
Notice").
5. Marin Housing Authority agrees to process applications and certify the eligibility of applicants as low or
moderate -income households. 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 twenty percent
(120%) of the current median income. 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. The median income is defined as the median income for the San
Francisco Primary Metropolitan Statistical Area (PMSA)--San Francisco, San Mateo and Marin County --as
determined by the United States Department of Housing and Urban Development ("HUD"), Office of
Economic Affairs, Economic and Market Analysis Division, with adjustments for smaller or larger
households (refer to Exhibit "D" attached hereto).
The Developer shall not unreasonably delay its review and acceptance or rejection of the offer submitted by
an applicant supplied by Marin Housing Authority.
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 Authority
shall be paid a fee of $1000 per unit to be paid by the buyer, which payment shall be included in the buyer's
closing costs through escrow.
In the event that any of the Units remain unsold on the date that is one hundred twenty (120) days after Marin
Housing Authority's receipt of the Availability Notice, the Developer shall notify Marin Housing Authority in
writing of such fact (the "Inventory Notice"). As used herein, the term "sold" shall mean the execution of a
contract for purchase and the Developer's receipt of the Buyer's written unconditional (except for a 442 re-
appraisal condition) approval of a mortgage loan, in an amount equal to the difference between the contract
purchase price for the Unit plus Buyer's estimated closing costs less the Buyer's down payment. Within ten
(10) working days after receipt of the Inventory Notice, Marin Housing Authority or its assignee may notify
the Developer in writing that it will purchase the Unit (the "Purchase Notice"). If the Purchase Notice is
given by Marin Housing Authority, (a) 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 moderate income and (b)
REDWOOD VILLAGE Housing Agreement-- Signature at Redwood Village, LLC Page 2 of 10
City of San Rafael / Marin Housing Authority 03/04/03
the terms of the sale shall be those terms set forth in the Developer's standard purchase and sale agreement
for the project.
In the event that Marin Housing Authority or its assignee fails to deliver the Purchase Notice in a timely
manner, the Unit 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 unit. In such event, the
Developer shall pay to the City from the sale price of the Unit an amount equal to seventy-five percent (75%)
of the difference between the net price achieved after normal selling and closing costs and the sales price for
the unit 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, which -ever 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 and future BMR re -sales. The balance of 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.
The contract conveying the Unit to a Buyer certified by Marin Housing Authority shall contain a resale
restriction and an option to purchase constituting a right of first refusal, pursuant to which the Buyer agrees
that prior to selling the property, it will first be offered for sale to Marin Housing Authority or its assignee, in
writing. Said deed restrictions shall be in the form of a Resale Restriction Agreement and Option to Purchase
to be provided by Marin Housing Authority as set forth in Exhibit "E" to this agreement. The Resale
Restriction Agreement shall be executed by the Buyer and recorded in immediate succession after the Grant
Deed conveying title to the property.
8. 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 Units specified in Paragraph 1 are no longer required thereby, this
Agreement shall thereupon become void, unless any of the 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 Units so sold.
9. 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: City of San Rafael
Attention: Planning Director
P.O. Box 151560
San Rafael, CA 94915-1560
To Marin Housing Authority: Marin Housing Authority
Attention: Executive Director
4020 Civic Center Drive
San Rafael, CA 94903-4173
To the Developer: Signature at Redwood Village, LLC
c/o Signature Properties, Inc.
Attention: Michael Ghielmetti
4670 Willow Road #200
Pleasanton, CA 94588
REDWOOD VILLAGE Housing Agreement— Signature at Redwood Village, LLC Page 3 of 10
City of San Rafael Marin Housing Authority 03:04:03
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.
10. 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 (a) any negligent act or
omission of the City; or (b) the designation of the selection criteria (as set forth in Exhibit "C") or the
selection process (determined pursuant to Section 5) except where caused by the active negligence, sole
negligence, or willful misconduct of the Marin Housing Authority and/or Developer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.
CITY OF SA RAFAEL
J
By:
GARY 0. PHILLIPS
Its: VICE—MAYOR
WEI YING HE
Commission # 1318276 Z
..� ' Notary Public - California �y
AT L San Francisco County
My Comm. Ewes Aug 18, 2005 r
By: n, .
JE NE M. LEONCINI, CITY CLERK
HOUSING AUTHORITY OF
THE COUNTY OF MARIN
M
Its:
ATTEST:
SIGNATURE AT REDWOOD VILLAGE, LLC
By:
Its:
Attachments: Exhibit "A" --Legal Description of Property
Exhibit "B" --Schedule of BMR Unit and Sales Price
Exhibit "C" --Eligibility Requirements and Priorities
Exhibit "D" --Marin County FY 2003 Median Family Income Schedule
Exhibit "E" --Resale Restriction Agreement and Option to Purchase
REDWOOD VILLAGE Housing Agreement— Signature at Redwood Village, LLC ! Page 4 of 10
City of San Rafael Marin Housing Authority 03+0403
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of Q.,V1 20f
0 _. _.._
On f before me,
Date Na and Ti f Officer .g., "Jane Dae, Nota ub Ic�r
a
personally appeared_. _
Nam ) of Signer(s)
WEl PING HE
Commisalon # 1318278 Z
Notary Public - California y
Z San Francisco County
personally known to me
proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
MyCanm.ExpimsAug 18,2008� WITNESS my hand and official seal.
Pla a Nntary Seal Above ` X e of Notary Public
OPTIONA
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 Do�cupment: �� .
Document Date: J V l QrV CM b 2-00- Number of Pages:
Signer(s) Other Than Named Above: Af14
Capacity(ies) Claimed by Fqgner
Signer's Name:
Li Individual
❑ Corporate Officer — Title(s):
❑ Partner— Limited . General
❑ Attorney in Fact
❑ Trustee
F] Guardiar4or Conse ator
Other:1� L� fir'►.. s I�ctY� _
Signer Is Representing:
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.; 1999 Nat -anal Notary Association - 9350 De Soto Ave, P.O Box 2402 -Chatsworth. CA 913132402 - www nationalnotaryorg Prod No 5907 Recrder' Call Tall -Free 1.600 9766627
SIGNATURE at REDWOOD VILLAGE, LLC
Resolution of Manager
Pursuant to Section 4.8 of the Operating Agreement for the Company, the
Manager of the Company may take certain actions without a vote of the Members. The
undersigned, being the Manager of the Company, hereby consents to the following
resolutions effective March 10, 2003:
Redwood Village Below Market Rate Housing
WHEREAS the Company is under contract to purchase certain real property
located in the City of San Rafael with the intention of developing the property into a for -
sale residential subdivision (the "Project');
WHEREAS Condition of Approval # 31 for the Project Vesting Tentative Map
requires the Company to provide 26 affordable housing units within the Project;
WHEREAS the Company has been presented with a proposed Below Market
Rate Housing Agreement (the "Agreement') by the City of San Rafael and the Housing
Authority of the County of Marin, which Agreement is intended to satisfy Condition of
Approval #31; it is therefore
RESOLVED that it is in the best interests of the Company to execute the
Agreement in order to meet Condition of Approval #31; and
FURTHER RESOLVED that the following employees are hereby authorized,
empowered and directed to execute or deliver on behalf of the Company any and all
documents, including but not limited to the Agreement, necessary to the carry out the
intent of this resolution:
1. Rob Fregulia
2. Mike Ghielmetti
7 Robert Fregulia
Secretary
�.. Mike Ghielmetti
President
Dept/legal/agreements, resolutions: redwood village burr resolution
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF ALAMEDA 1 ss.
On March 10, 2003, before me, Janet Faltings, Notary Public, personally appeared
Michael Ghielmetti, personally known to me (or- pre ed to me en the basis of fabs f tef-.
evidenee) to be the person(s) whose name(s) is/afe subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity(ies), and
that by his signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(`.2 ar ��G'L?'.L
Jet Faltings 7
JANET FALTINGS
COMMISSION 1326971
NOTARY PUBLIC-CAUFORNiA
ALAMEDA COUNTY
My mwasion exp6 Nov 24, 2005
EXHIBIT "A"
Legal Description
ATTENTION: TITLE COMPANY ---
INSERT LEGAL DESCRIPTION
HERE PRIOR TO RECORDATION
REDWOOD VILLAGE Housing Agreement Signature at Redwood Village, LLC Page 5 of 10
City of San Rafael Mann Housing Authority 03/04/03
EXHIBIT "B"
Project Name: REDWOOD VILLAGE
Location: Los Ranchitos Road and N. San Pedro Road, San Rafael
Developer: SIGNATURE AT REDWOOD VILLAGE, LLC, or any successor in interest
Total Units: 133
BMR Units: 26
SCHEDULE OF BMR UNITS AND SALES PRICES
Units
Type
Size
Lot or Unit No.
Affordability
Cateeory
Sales Price
6
2BR / 2.5Ba
1,242 sf
TH Plan 1
75% of Median
Low
$205,950''-'
10
2BR / 2.5Ba
1,242 sf
TH Plan 1
90% of Median
Mod
$251,800
1
2BR / 2.5Ba
1,242 sf
TH Plan 1
95% of Median
Mod
$266,900''-'
4
2BR / 2.5Ba
1,277 sf
TH Plan 2
95% of Median
Mod
$266,900''-'
5
3BR / 2.513a
1,471 sf
TH Plan 3
95% of Median
Mod
$299,100''-'
Following are the household size and income used to establish these sales prices:
Cate2ory
Type
Household Size
Affordabilitv
Income
Low
2BR / 2.513a
Three Persons
75% of Median
$61,750''-
Mod
2BR / 2.5Ba
Three Persons
90% of Median
$74,100L
Mod
2BR / 2.5Ba
Three Persons
95% of Median
$78,250'-
Mod
3BR / 2.5Ba
Four Persons
95% of Median
$86,900L
Loan rate and term and loan -to -value ratio used to establish the above sales prices:
Mortgage Rate:
Term / Amortization:
Loan -to -Value Ratio:
Monthly Homeowners Association Fees:
Median Income:
6.25 fixed-rate -'
30 yr. / 30 yr.
95%
$175
FY2003 Median Income effective 1/31/03 '-
REDWOOD VILLAGE Housing Agreement— Signature at Redwood Village, LLC.- Page 6 of 10
City of San Rafael / Marin Housing Authority 0104,03
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 forty (140) days prior to the issuance of Certificates of Occupancy
for the Unit if either: (I) 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 the San Francisco PMSA as determined
by the U.S. Department of H.U.D. has changed from that set forth in Exhibit "D" attached hereto. Upon
receipt of the Developer's 140 -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 the San Francisco PMSA as determined by
H.U.D.
REDWOOD VILLAGE Housing Agreement— Signature at Redwood Village, LLC 1 Page 7 of 10
City of San Rafael / Marin Housing Authority 03/04/03
EXHIBIT "C"
Project Name: REDWOOD VILLAGE
Location: Los Ranchitos Road and N. San Pedro Road, San Rafael
Developer: SIGNATURE AT REDWOOD VILLAGE, LLC, or any successor in interest
Eligibility Requirements
In determining and certifying eligibility of applicants for the subject project, Marin Housing Authority shall adhere
to the following criteria:
For the units designated as moderate -income, the applicant's total household annual income may not exceed
120% of the current median income for the San Francisco PMSA as determined by the U.S. Department of
Housing and Urban Development (HUD), and as adjusted for household size, in order to qualify as
"moderate -income." For the units designated as low-income, the applicant's total household annual income
may not exceed 80% of the current median income for the San Francisco PMSA as determined by the U.S.
Department of Housing and Urban Development (HUD), and as adjusted for household size, in order to
qualify as "low-income."
2. The total value of the applicant household's assets may not exceed 75% of the sales price of the unit.
The applicant must qualify as a "First-time Homebuyer" --defined as not having previously owned a principal
residence.
4. To qualify for a two-bedroom unit, there must be at least three persons in the applicant's household, and to
qualify for a three-bedroom unit, there must be at least four persons in the applicant's 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 for thirty-three per cent (33%) of the BMR units shall go to permanent, full-time
employees of the City of San Rafael.
2. Second priority in the drawing shall go to applicants living or working in Marin County.
3. Third priority in the drawing shall go to all other applicants.
REDWOOD VILLAGE Housing Agreement- Signature at Redwood Village, LLC ` Page 8 of 10
City of San Rafael / Marin Housing Authority 0104:03
EXHIBIT "D"
N"RoktrN
HOUSING
Making Housing More Affordable
4020 Civic Center Drive
San Rafael,CA 94903-4173
(415) 491-2550
Marin County FY 2003 Median Household Income Schedule
Effective 2/20/03
Household <--Very Low Income Low Income -- l i Moderate Income --- -►I
Size
35% 50% 65% 80% 90% Median 120%
1 22,400
32,050
41,650
51,250
57,650
64,050
76,850
2 25,600
36,600
47,600
58,550
65,900
73,200
87,850
3 28,800
41,200
53,550
65,900
74,100
82,350
98,800
4 32,050
45,750
59,500
73,200
82,350
91,500
109,800
5 34,600
49,400
64,250
79,050
88,950
98,800
118,600
6 37,150
53,050
69,000
84,900
95,550
106,150
127,350
7 39,700
56,750
73,750
90,750
102,100
113,450
136,150
8 42,250
60,400
78,500
96,600
108,700
120,800
144,950
This median income schedule has been prepared by the Marin Housing Authority. It is based on the
FY 2003 median income for the San Francisco MSA (Metropolitan Statistical Area), comprising San
Francisco, San Mateo and Marin Counties. The median income for a four -person household, which is
currently $91,500, is determined by the Department of Housing and Urban Development ("HUD"),
Office of Economic Affairs, Economic and Market Analysis Division. This figure is adjusted for
household size in accordance with HUD standard adjustment factors. The current median income
became effective 2/20/03. All figures on this schedule are rounded to the nearest $50.
REDWOOD VILLAGE Housing Agreement- Signature at Redwood Village, LLC Page 9 of 10
City of San Rafael Marin Housing Authority 03:04iO3
EXHIBIT "E"
Resale Restriction Agreement and Option to Purchase
REDWOOD VILLAGE Housing Agreement— Signature at Redwood Village, LLC 1 Page 10 of 10
City of San Rafael Marin Housing Authority 03-0403
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 RESTRICTION AGREEMENT AND OPTION TO PURCHASE
Owner(s):
Property Address:
Name of Development:
Local Jurisdiction:
Purchase Price:
RECITALS
This Resale 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 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
("City").
C. Owner is an eligible 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. In order to maintain and preserve the Premises as housing affordable to eligible moderate -
income purchasers, it is necessary to restrict the use and resale price of the Premises by the occupancy
and resale controls. 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 and
resale controls to ensure that the Premises are used, maintained and preserved as housing affordable to
eligible moderate -income purchasers.
E. The Premises subject to occupancy and resale controls constitute a valuable community
resource by providing decent, safe and sanitary housing to 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 and resale controls by means of this
Agreement.
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.
Program Conditions.
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 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. 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.
Grant of Option to Purchase.
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 this Agreement ("Option"),
subject to the terms and conditions contained herein.
Assignment of the Option.
The Authority may assign the Option to another government entity or to a 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 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.
4. Events Giving Rise to Right to Exercise Option.
The Authority shall have the right to exercise its Option upon the occurrence of any of the
following events (an "Option Event"):
a. Receipt 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;
c. 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 16 below;
d. 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;
e. Commencement of a judicial foreclosure proceeding regarding the Premises;
f. Execution by Owner of any deed in lieu of foreclosure transferring ownership of the Premises;
and
g. 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 other insolvency,
reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship,
concerning the Owner.
h. Any violation by Owner of the conditions set forth in paragraph 1 above.
5. Method of Exercising the Option.
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 personally or deposited in
the United States mail, postage prepaid, first class, certified -return receipt requested, addressed to the
Housing Authority of the County of Marin, 4020 Civic Center Drive, San Rafael, CA 94903-4173,
Attention: Executive Director. The Notice of Intent to Transfer shall be in substantially the form
attached hereto and incorporated herein as Exhibit B.
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 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 by deposit in the United States mail, postage prepaid, first
class, addressed to Owner at the Premises, or at such other address as may be indicated on the Notice of
Intent to Transfer, and delivery shall be deemed effective on the date of deposit. If the Option Event
relates to the potential foreclosure of a mortgage under paragraphs 4d, e or f, then the Authority shall also
-3-
ne., mm�
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 may give its
consent to the occurrence of the Option Event ("Consent to Transfer"), which consent shall be
conditioned upon the proposed transferee's or encumbrancer's assumption of Owner's duties and
obligations under this Agreement in writing, or execution of an agreement substantially similar to this
Agreement, within thirty (30) days after the Consent to Transfer has been delivered to Owner. If the
proposed transferee or encumbrancer fails to assume this Agreement or execute and deliver a
substantially similar agreement to the Authority 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 Notice. 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 such date which is 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)
fifteen (15) 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 date
that it actually receives a written Notice of Intent to Transfer, notice of default, summons and complaint
or other pleading, or other writing specifically stating that an Option Event has occurred. 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 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. Notice of 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 terminate and have no further force
and effect. Thereafter, upon request by Owner, the Authority shall cause to be filed for recordation in the
Office of the Recorder of the County of Marin a notice of 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 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. Right to Reinstatement.
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 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.
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7. Inspection of Premises.
After delivering a Notice of Exercise, 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, excluding court
holidays, 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.
8. 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 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 the 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.
9. Proceeds of Escrow: Removal of Exceations 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.
10. Resale Price.
Prior to adjustment pursuant to paragraph 11, the resale price of the Premises shall be the lowest of
("Resale Price"):
a. Median Income. 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 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 20) and
the date that the Authority receives notification of an Option Event.
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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.
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. Resale Price Worksheet. To compute the Resale Price, the Authority may use the Resale Price
Worksheet attached as Exhibit D hereto, or such other form as the Authority may from time to time
adopt.
11. Adiustments to Resale Price.
The Resale Price shall be adjusted by the following ("Adjustments"):
a. Capital Improvements. An increase for capital improvements made to the Premises by Owner
provided that the amount of said improvements 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.
b. DamaLyes. 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.
c. 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.
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 except any
deed of trust or other instrument securing financing used to purchase the Premises. Except as otherwise
provided in Section 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.
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b. Request 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 moderate -income purchaser, (ii) any successor, transferee, assignee, heir,
executor, or administrator of an eligible 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 a third party purchaser
pursuant to a judicial or non judicial foreclosure or a deed -in -lieu of foreclosure under a power of sale
contained in a mortgage or 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, or (ii) 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 MorteaQes. 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.
14. Voidable Transfers.
As long as the Option has not been abandoned pursuant to paragraph 5e, 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.
The following transfers of title to the Premises, or of any estate or interest therein ("Permitted
Transfers"), will not authorize the exercise of this Option: a good -faith transfer by gift, devise or
inheritance to Owner's spouse or issue; a taking of title by a surviving joint tenant; a court-ordered
transfer of title to a spouse as part of a divorce or dissolution proceeding; or an acquisition of title, or of
any interest therein, in conjunction with marriage. Notwithstanding any Permitted Transfer, the Option
shall remain effective with respect to the Premises.
16. Permitted Encumbrances and Refinancings.
This Option shall not become exercisable as the result of Owner's encumbering the Premises for
the purpose of securing financing to purchase the Premises pursuant to the Program, or to refinance
existing indebtedness incurred to purchase the Premises pursuant to the Program. The maximum amount
of any refinancing permitted by this paragraph shall not exceed an amount equal to ninety percent (90%)
of the Resale Price calculated as provided in paragraph 10, as modified by this paragraph (the "Permitted
Encumbrance Amount"). The Permitted Encumbrance Amount shall be the Resale Price calculated as of
the date of Owner's written notice to the Authority of Owner's intent to refinance (the "Refinance
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Date"); provided, however, in the event that escrow does not close on the loan within one hundred and
twenty (120) days after the Refinance Date, the Authority shall have the right to require a recalculation of
the Permitted Encumbrance Amount.
17. Obligations of Owner After Option Abandonment.
If the Authority records a notice of abandonment of the Option, 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 eighty-five percent (85%) of the difference between (a) the actual sales price net of
reasonable and customary real estate commissions paid (such commissions not to exceed six percent
(6%) of the actual sales price), and (b) the Resale Price plus/minus Adjustments. This amount shall be
paid to the Authority upon close of escrow on the sale of the Premises, or upon execution of a contract of
sale, whichever shall first occur. Owner shall not receive any proceeds from the sale unless and until the
Authority has been paid in full the amount determined pursuant to this paragraph.
18. Limits on Liabilitv.
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.
19. Insurance Proceeds and Condemnation Award.
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 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 paragraph 9 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. 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."
21. Term of Option.
Date.
The restrictions contained herein shall continue for a period of thirty (30) years from the Recording
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22. Notices.
Except as otherwise specified in this Agreement, all notices required to be sent pursuant to this
Agreement shall be made by personal delivery or by deposit in the United States mail, first class postage
prepaid, and shall be deemed to have been delivered and received on the date of personal delivery or five
(5) days after deposit in the mail, 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 section.
23. Attorneys' fees.
If either party 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.
24. 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 is 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 for Owner's failure to perform according to the terms of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of
the day of
OWNER(S):
THE AUTHORITY:
JANET MILLER SCHODER
Executive Director
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0— nl:nl
CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code §27281)
This is to certify that the interest in real property conveyed by the Resale 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:
JANET MILLER SCHODER
Executive Director
Housing Authority of the County of Marin
EXHIBIT A
Legal Description
ATTENTION: TITLE COMPANY ---
INSERT LEGAL DESCRIPTION
HERE PRIOR TO RECORDATION
EXHIBIT B
VIA CERTIFIED MAIL - RETURN RECEIPT REOUESTED
To: Housing Authority of the County of Marin
Attention: BMR Program Q
4020 Civic Center Drive
Date: San Rafael, California 94903-4173
0
Re: Notice of Intent to Transfer
Owner's daytime telephone number is ( )
The proposed transfer of the Premises is to the following person(s):
Name:
Address:
Telephone: ( )
The proposed transfer is: (check one)
❑ Sale ❑ Lease ❑ Encumbrance
❑ Other Specify:
OWNER:
Signature
EXHIBIT C
Date: p
To: Q
Owner or Transferee
Address
re: Notice of Exercise
The Housing Authority of the County of Marin ("Authority") hereby gives notice that it is
exercising its option to purchase the real property located at . The option
has been granted to the Authority pursuant to the Resale Restriction Agreement and Option to Purchase
between Owner and the Authority dated and recorded
[The Authority has assigned its option to purchase the real property to An
escrow for the purchase will be opened with First American Title Company of Marin.
LIM
The Housing Authority of the County of Marin
Its Authorized Representative
EXHIBIT D
BELOW MARKET RATE HOMEOWNERSHIP PROGRAM
BMR RESALE PRICE WORKSHEET
Date:
Owner:
Address:
Purchase Price:
Years Owned:
***METHOD #1: CALCULATION BASED ON INCREASE IN MEDIAN INCOME***
Present Median: Effective Date:
Original Median: Effective Date:
Rate of Increase: per annum
Increase in Price: x x =
Method #1 Resale Price: + _
MARtrN
HOUSING
4020 Civic Center Drive
San Rafael, CA 94903-4173
(415) 491- 550 �%
***METHOD #2: CALCULATION BASED ON INCREASE IN CONSUMER PRICE INDEX***
Present CPI: Effective Date:
Original CPI: Effective Date:
Rate of Increase: per annum
Increase in Price: x x =
Method #2 Resale Price: + _
BASED ON THE ABOVE, THE BASE RESALE PRICE AS OF THIS DATE,
IN
IS:
Recording Requested By:
Marin Housing Authoritv
And When Recorded Mail to:
Marin Housing Authority
Attention: BMR Program
4020 Civic Center Drive
San Rafael, CA 94903-4173
EXHIBIT E
Request for Notice Under Section 2924b Civil Code
In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of Default
and a copy of any Notice of Sale under the Deed of Trust recorded as Serial No.
on Official Records of M in Co ty, and describing land therein as shown in
said Deed of Trust. O
A.P.# Q
Executed by , as Trustor,
in which O is named as Beneficiary,
and as Trustee,
be mailed to: Marin Housing Authority
Attention: BMR Program
4020 Civic Center Drive
San Rafael, CA 94903-4173
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT TO
THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A
NEW REQUEST MUST BE RECORDED.
Dated: By:
By:
STATE OF CALIFORNIA
COUNTY OF MARIN
On
before me,
a Notary Public in and for said State, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (This area for official notanal seal.)