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HomeMy WebLinkAboutCC Resolution 11425 (BMR Agr.)CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLUTION NO. 11425 A 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 THE CITY OF SAN RAFAEL AND MICHAEL O' MAHONEY AND J.F. SULLIVAN REGARDING LINCOLN MEWS (1515 LINCOLN AVENUE) THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The Mayor and the City Clerk are authorized to execute on behalf of the City of San Rafael, a Below Market Rate Housing Agreement between the City of San Rafael and Michael O'Mahoney and J.F. Sullivan regarding Lincoln Mews, located at 1515 Lincoln Avenue in San Rafael; a copy of the Agreement 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, 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 6th day of October 2003, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None JEANYTE M. LEONCA, City Clerk Recording Requested by: City of San Rafael When Recorded Retaern to: City of San Rafael Attention: Jeanne M. Leoncini, City Clerk P. O. Box 151560 San Rafael, CA 94915-1560 (Note:Certified cony of Resolution #11425, adopted by San Rafael City Council 10/6/03, attached.) BELOW MARKET RATE HOUSING AGREEMENT Project Name: LINCOLN MEWS PROPERTY Location: 1515 Lincoln Avenue, San Rafael, California Developer: MICHAEL O'MAIIONY and J. F. SULLIVAN, or any successor in interest This Agreement is made and entered into this day of ,among the CITY OF SAN RAFAEL, 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 MICHAEL O'MAHONY and J. F. SULLIVAN, 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 three (3) dwelling units to be sold at prices that are within the means of low and moderate -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: LINCOLN MEWS BMR Housing Agreement— Michael O'Mahony � Page 1 of 10 and J. F. Sullivan / City of San Rafael / Marin Housing Authority 07/23/02 rc [a,ii ;;AFFAEI. REDEVELOP; 9ENT AGENCY (Note:Certified cony of Resolution #11425, adopted by San Rafael City Council 10/6/03, attached.) BELOW MARKET RATE HOUSING AGREEMENT Project Name: LINCOLN MEWS PROPERTY Location: 1515 Lincoln Avenue, San Rafael, California Developer: MICHAEL O'MAIIONY and J. F. SULLIVAN, or any successor in interest This Agreement is made and entered into this day of ,among the CITY OF SAN RAFAEL, 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 MICHAEL O'MAHONY and J. F. SULLIVAN, 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 three (3) dwelling units to be sold at prices that are within the means of low and moderate -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: LINCOLN MEWS BMR Housing Agreement— Michael O'Mahony � Page 1 of 10 and J. F. Sullivan / City of San Rafael / Marin Housing Authority 07/23/02 The Developer agrees that three (3) dwelling units within the project approved by the City for the property described in Exhibit "A" attached hereto will be sold to low or moderate -income households in accordance with the terms and pursuant to the procedures set forth in this Agreement. Said dwelling units are identified in Exhibit "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." 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 or similar items. The Developer agrees to offer the Units for sale only to individuals or households who have been certified as eligible by Marin Housing Authority. 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. 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). 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. 6. In the event that any of the Units remain unsold at the end of one hundred twenty (120) 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 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. 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 LINCOLN MEWS BMR Housing Agreement— Michael O'Mahony Paae 2 of 10 and J. F. Sullivan / City of San Rafael / Marin Housing Authority 07/23/02 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, 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. 7. 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. 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. snail, 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: Michael O'Mahony and J. F. Sullivan 4830 Mission Street, #103 San Francisco, CA 94112 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. LINCOLN MEWS BMR Housing Agreement— Michael O'Mahony Page 3 of 10 and J. F. Sullivan / City of Sail Rafael / Marin Housing Authority 07/23/02 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 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. CITY OF SAN RAFAEL By: O B 0 Its: MAYOR ATTEST: By: JEAK t'I. LEONCIN CITY CLERK HOUSING AUTHORITY OF THE COUNTY OF MARIN LI Its: ATTEST: DEVELOPER: MICHAEL O'MAHONY and I F. SULLIVAN 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 2002 Median Family Income Schedule Exhibit "E" --Resale Restriction Agreement and Option to Purchase LINCOLN MEWS BMR Housing Agreement— Michael O'Mahony Page 4 of 10 and J. F. Sullivan / City of San Rafael / Marin Housing Authority 07/23/02 I CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT �a._—._.�_}_—_ _rc•—'��_' �—y_2_—: ~-�. �'�•_ r�-..h^,^fes.`__ c_—_._—=53i State of California County of Marin On Oct. 10, 2003 Date personally appeared before me, Albert J. Boro ss. Nancy Hann, Notary Public Name and Title of Officer (e g, 'Jane Doe Notary Pub c Name(s) of Signer(s) XXpersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the person whose name f gr&l aw- subscribed to the within instrument and acknowledged to me thae'ip/'shetthey executed the same in 1S/hjWtbeiff authorized capacity0esT, and that by 6p1hWheif signature, Bron the instrument the person-(sj-,or the entity upon behalf of which the persorpWe acted, executed the instrument. WITNESS my hand and official seal. Sitink6 of Notary Publl� OPTIONAL Though the information below is not required bylaw, 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: Bel ow Market Lincoln Mews Document Date: -- Rate Housing Agreement re Property, 1515 Lincoln Ave. Number of Pages: -- Signer(s)Other Than Named Above: Developer and Housing Authority of Marin Capacity(ies) Claimed by Signer Signer's Name: Albert J. Boro 4:1 ❑ Individual Tap of thumb here k91 ❑ Corporate Officer — Title(s):l ❑ Partner — Limited ❑ General ❑ Attorney -in -Fact( i�<, ❑ Trustee `S•il . ❑ Guardian or Conservators XX Other: Mayor C Signer Is Representing: City of San Rafael r� (':1- --- : ,; :•-- - -- - - - - - - .; .- d -: .-.:- -- - - --- - - - - - -_-- it 0 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - wvvw.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1.800-876-6827 � NANCY HANN COMM. 91243639 C NOTARY PUBLIC-CAJFORNIA 0 MARIN COLNTY 1 M% Comm. Expires Feb 4, 2004 t ss. Nancy Hann, Notary Public Name and Title of Officer (e g, 'Jane Doe Notary Pub c Name(s) of Signer(s) XXpersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the person whose name f gr&l aw- subscribed to the within instrument and acknowledged to me thae'ip/'shetthey executed the same in 1S/hjWtbeiff authorized capacity0esT, and that by 6p1hWheif signature, Bron the instrument the person-(sj-,or the entity upon behalf of which the persorpWe acted, executed the instrument. WITNESS my hand and official seal. Sitink6 of Notary Publl� OPTIONAL Though the information below is not required bylaw, 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: Bel ow Market Lincoln Mews Document Date: -- Rate Housing Agreement re Property, 1515 Lincoln Ave. Number of Pages: -- Signer(s)Other Than Named Above: Developer and Housing Authority of Marin Capacity(ies) Claimed by Signer Signer's Name: Albert J. Boro 4:1 ❑ Individual Tap of thumb here k91 ❑ Corporate Officer — Title(s):l ❑ Partner — Limited ❑ General ❑ Attorney -in -Fact( i�<, ❑ Trustee `S•il . ❑ Guardian or Conservators XX Other: Mayor C Signer Is Representing: City of San Rafael r� (':1- --- : ,; :•-- - -- - - - - - - .; .- d -: .-.:- -- - - --- - - - - - -_-- it 0 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - wvvw.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1.800-876-6827 ¢S.T A MER! C 4ti 9 \\\ FIRST AMERICAN TITLE INSURANCE COMPANY STATE OF CALIFORNIA } COUNTY OF Marin On Auqust 1, 2002 , before me, A. Cardv a Notary Public in and for said State, personally appeared Michael O'Mahonev & J.F. Sullivan 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: Title of Document Date of Document Other signatures not acknowledged A.^LARDY .•. >. t r �YdFk U COMM. # 1222257 a•. NOTARY PUBLIC -CALIFORNIA MARIN COUNTY 0 r v w,Fon�w COMM. EXP. JUNE 25, 2003 - (This area for official notarial seal) No. of Pages EXHIBIT "A" Project Name: LINCOLN IWEIVS PROPERTY Location: ISIS Lincoln Avenue, San Rafael, California Developer: NIICHAEL O'1VIAHONY and J. F. SULLIVAN, or any successor in interest DESCRIPTION: All that certain Peal Property situated in the City of San Rafael, State of California, described as follows: LOT B and C, as shown upon that certain map entitled, "S 93-2 Parcel Map being a Subdivision of the land described in the Grant Deed filed March 6, 1992 in O.R. 92-015274 also being a Subdivision of Lot 19 Assessor's Block 193, also being Lots 26, 27, 28 & 29 of the Marten's Tract City of San Rafael, County of Marin", recorded November 19, 1999 in Volume P1999 of Maps, at Page 216, Marin County Records. LINCOLN MISWS BMR 1 -lousing Agreement— 1\41chael O'Mahony Pale 5 of 10 and 1. P. Sullivan / Cit), ol' San Rafael / Marin Housin`, Authority 07/23/02 EXHIBIT "B" Project Name: LINCOLN MEWS PROPERTY Location: 1515 Lincoln Avenue, San Rafael, California Developer: MICHAEL O'MAHONY and J. F. SULLIVAN, or any successor in interest Total Units: 24 BMR Units: 3 SCHEDULE OF B1VIR UNITS AND SALES PRICES mUnits Type Size Lot. or Unit No. Affordability Categor►, Sales Price I 1BR / 113a 650 sf 90% of Median Moderate $155,800'-' 2 ?_BR / 213a 950 sf 90% of Median Moderate $182,40OL' Following are the household size and income used to establish these sales prices: Category 7j?pe Household Size Affordability Income Moderate IBR / 113a One Person 90% of Median $54,2501' Moderate 2BR / 213a Two Persons 90% of Median $62,000L' Loan rate and term and loan -to -value ratio used to establish the above sales prices: Mortgage Rate: 7.50% fixed-rate" Term / Amortization: 30 yr. / 30 yr. Loan -to -Value Ratio: 95% Monthly Homeowners Association Fees: $200 Median Income: FY2002 Median Income effective 1/31/02L' LINCOLN NIEWS BMR Housing Agreement—Michael O'Mahony Page 6 of 10 incl J. F. Sulli\,an / City of San Rafael / Marin Housing Authority 07/23/02 LO 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: (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 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 the San Francisco PMSA as determined by H.U.D.. 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. LINCOLN MEWS BMR Housing AgC.reement— Michael O'Mahony Paee 7 of 10 and J. F. Sullivan / City of San Rafael / Marin Housing Authority 07/23/02 EXHIBIT "C" Project Name: LINCOLN MEWS PROPERTY Location: 1515 Lincoln Avenue, San Rafael, California Developer: MICHAEL O'MAIIONY and J. F. SULLIVAN, or any successor in interest Eligibility Reauirements In determining and certifying eligibility of applicants for the subject project, Marin Housing Authority shall adhere to the following criteria: To be 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. To be 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. 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. d. To qualify for a two-bedroom unit, there must be at least two 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. LINCOLN MEWS BMR Housing Agreement— Michael O'Mahony Pave 8 of 10 and J. F. Sullivan / City of San Rafael / Marin HousingAuthority 07/23/02 EXHIBIT "D" Marin County FY 2002 Median Household Income Schedule lAWN HOUSING Effective 1/31/02 Making Housing More Affordable 4020 Civic Center Drive San Rafael, CA 94903-4173 (415) 491-2550 Household Very Low Income- ) k Low Income Moderate Income t I Size 35% 50% 65% 80;0 90% Median 120% 1 21,100 30,150 39,200 48,200 54,250 60,250 72,300 2 24,100 34,450 44,750 55,100 62,000 68,900 82,650 3 27,100 38,750 50,350 62,000 69,750 77,500 93,000 4 30,150 43,050 55,950 68,900 77,500 86,100 103,300 5 32,550 46,500 60,450 74,400 83,700 93,000 111,600 6 34,950 49,950 64,900 79,900 89,900 99,900 119,850 7 37,350 53,400 69,400 85,400 96,100 106,750 128,100 8 39,800 56,850 73,850 90,900 102,300 113,650 136,400 This median income schedule has been prepared by the Marin Housing Authority. It is based on the FY 2002 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 $86,100, 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 1/31/02. All figures on this schedule are rounded to the nearest $50. LINCOLN MEWS BMR HousingAgreement- Michael O'Mahony Page 9 of 10 and J. F. Sullivan / City of San Rafael / Marin Housing Authority 07/23/02 EXHIBIT "E" Resale Restriction Agreement and Option to Purchase LINCOLN MEWS BMR Housins Agreement— Michael O'Mahony Pale 10 of 10 and J. F. Sullivan / City of San Rafael / Marin Housing Authority 07/23/02 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 'Fnis 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 chis 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 ECONOI`IIC 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. 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. 3. 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. -2- Rev. 03/99 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. r 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 -3- Rev. 03/99 the potential foreclosure of a mortgage under paragraphs 4d, e or f, 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 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 Authoritv 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 cease 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. -4- Rev. 03/99 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 Exceptions 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 (DMSA) --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 -5- T A^1 I/1ll 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. 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. Adjustments to Resale Price. I he 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. 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. 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. Priority and Effectiveness of the Option. a. Recordation. This Agreement 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 paragraph 13a, 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. -6- Rev. 03/99 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 Mortgages. 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 sood-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 anv 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 if -7- the Authority had received notification of an Option Event on the earlier of (a) the date on which the deed of trust or mortgage securing the refinancing indebtedness is filed for record in the Office of the Recorder of the County of Marin, or (b) the date the Authority receives a Notice of Intent to Transfer pursuant to paragraph 5a above. 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 sic percent (6%) of the actual sales price), and (b) the Resale Price plus 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 therights 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 condeumation 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 filled 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. The restrictions contained herein shall continue for a period of thirty (30) years from the Recording Date. Rev. 03/99 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: 10 Rev. 03/99 JANET MILLER SCHODER Executive Director -9- 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: Ey: JANET MILLER SCHODER Executive Director Housing Authority of the County of Marin -10- Rev. 03/99 EXMBIT A Leal Description ATTENTION: TITLE COMPANY— INSERT LEGAL DESCRIPTION HERE PRIOR TO RECORDATION VIA CERTIFIED iLIAIL - RETUR-AlRECEIPT REQUESTED To: Housing Authority of the County of Marin Attention: BMR Program 4020 Civic Center Drive San Rafael, California 94903-4173 Date: Re: Notice of Intent to Transfer The undersigned Owner(s), hereby gives notice of his/her intent to transfer the property located at (the "Premises"). Owner may be contacted at the Premises or at the following addres Ow Thi s): nbranc e EXMIT C Date: To: Owner or Transferee Address re: Notice of Exercise The Housing Authority of the County of Marin ("Authority") eby gives not e that it is exercising its option to purchase the real property located at The option has been granted to the Authority pursuant to thnResl- ion Agree t Option to Purchase between Owner and the Authority datedand recorded [The Authority has assigned its option to purcharty to I Anescrow for the purchase will be opened with Fire Company of Marin. of the County of Marin 6zed Representative EXHIBIT ID BELOW MARKET RATE HOMEOWNERSHIP PROGRAM BMR RESALE PRICE WORKSHEET Date: Owner. Address: Purchase Price: Date of Purchase: Years Owned. years Vr4OD til: CALi LLLrLA�ION BASED ON IN Present Median: Ongina/ Median: d Rate of Increase: Increase in Price: Method Qi Resale Price: 1 METHOD #2: CALCLI Present CPI: Original CPI: care .,r 1,.,--.- $E IN CONSUMER PRICE INDEX "' Effective Date: Effective Date: per annum x X 3RICE AS OF THIS DATE, , IS: M"R't,N HOUSING Malang Hous -mg More Afforrao:e 4020 Ci%is Center Dri%r San Rafael. CA 94903_ i'3 Executive Director /lane, Stiller Schoder Deputy Director Michael D. Kelleher Housing Authority of the County of Marin 415/491-2525 (FAX) 415/472-2186 EXHIBTT E Order No. Escrow No. Loan No. WHEN RECORDED MAIL TO: SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY 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 instrument No. on 19 , in Book Page Official Records of County, California, and describing land therein as executed by as Trustor, in which is named as Beneficiary, and as Trustee, be mailed tr at Numt»r and Street City and State NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TOTH E ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED. I STATE OF CALIFORNIA k�• COUNTY OF On before me, the undersigned 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 persons) whose name(s) Ware subscribed to the within instrument and acknowledged to me that he/she/they executed the same. WITNESS my hand and official seal Signature rrhis area for officul notanal seaq 1158 (Rev. i w)