HomeMy WebLinkAboutCD 1700 Fourth Street BMR AgreP
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RECORDING REQUESTED By and
WHEN RECORDED MAIL TO:
City of San Rafael
Attn: City Clerk
1400 Fifth Avenue
San Rafael, Ca 94901
No fee for recording pursuant to
Government Code Section 27383
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2017-0021533
Recorded I REC FEE
Official Records I
County of I
Harin I
RICHARD II. BENSON I
Assessor -Recorder I
County Clerk I
I
02:20PIl 30-Ifay-2017 I Page 1 of 27
REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS
(Below Market Rate Rental Unit Agreement with No Condominium Map; Density Bonus Law)
Development Name: G Square
Location: 1700 Fourth Street, San Rafael (APN 011-192-07)
Developer: G Square Partners, LLC and LRT Investment, LLC
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") is made and entered
into this day of� , a 0/7, among the CITY OF SAN RAFAEL, a municipal
corporation ("City"); 11), the IIOUSING AUTHORITY OF THE COUNTY OF MARIN, a public body,
corporate and politic, created under the Housing Authority Law of the State of California ("Marin Housing
Authority"); and G SQUARE PARTNERS, LLC a California limited liability company, and LRT
Investment, LLC, a California limited liability company or any of their successors in interest (collectively the
"Developer"), collectively the "Parties".
RECITALS
A. The City has adopted a density bonus ordinance (Section 14.16.030.1-1 of the San Rafael
Municipal Code) (the "Density Bonus Ordinance") to conform with state density bonus law (Government Code
Sections 65915 65918) (together "Density Bonus Law"). Density Bonus Law allows a density bonus,
concessions, and other regulatory incentives when a developer proposes to provide rental housing affordable to
Very Low Income or Low Income Households, as defined below.
B. Developer is the owner of certain real property located at 1700 Fourth Street, San Rafael,
County of Marin, California, which is more particularly described in attached Exhibit A incorporated herein by
this reference (the "Property"). In consideration of certain valuable land use and economic benefits conferred
by the City upon the Property under Density Bonus Law, Developer, for itself, its successors, heirs, grantees
and assigns, hereby agrees to comply with the requirements of Density Bonus Law as applied to the Property.
C. On December 9, 2014 Developer received the following discretionary approvals from the City:
Environmental and Design Permit (ED 14-068) and Use Permit (UPI4-020)(the "Project Approvals") to
construct a mixed use development of total of ten dwelling units ("Units"), (hereinafter referred to as the
"Development"). As part of the Development, Developer has sought and agreed to construct one Unit(s) (10%
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0.00
of the total Units in the Development) to be affordable to a Very Low Income Household (the "Affordable
Unit") for the Density Bonus Tenn as defined below.
D. Under Density Bonus Law, Developer has applied for, and the City has granted, the following
regulatory incentives in exchange for the Developer's provision of the Affordable Unit:
(i) A density bonus of three (3) additional Units (the "Density Bonus").
(ii) Concession(s), described as follows: (the "Concession(s)").
a) A height bonus of six feet
b) A parking concession pursuant to Density Bonus Law to allow tandem
parking for two residential parking spaces as parallel spaces along the entry
driveway off G Street (the "Parking Reduction"):
Any Density Bonus, Concession(s), Waiver(s), or Parking Reduction incorporated into the Development are
collectively "Incentives."
E. Density Bonus Law requires the City to ensure, and the Developer to agree to, continued
affordability of the Affordable Unit for the Density Bonus Tenn. To ensure their continued affordability for the
Density Bonus Term, this Agreement shall be executed and recorded against the Property prior to issuance of
any building pen -nits for the Development.
F. Developer acknowledges and agrees that the Project Approvals provided adequate and proper
notice pursuant to Government Code Section 66020 of Developer's right to protest any requirements for fees,
dedications, reservations, and other exactions as may be included in this Agreement, that no protest in
compliance with Section 66020 was made within ninety (90) days of the date that notice was given, and that
the period has expired in which Developer may protest any and all fees, dedications, reservations, and other
exactions as may be included in this Agreement.
G. Marin Housing Authority is authorized by law to participate in programs that provide housing
for households of very low, low, and moderate income. The City has contracted with Marin Housing Authority
to administer the City's affordable housing program.
NOW THEREFORE, it is hereby agreed by and between the Parties hereto as follows:
AGREEMENT
The Parties agree and acknowledge that the above recitals are true and accurate, and are incorporated
into this Agreement by this reference.
1. Definitions and Exhibits
1.1 Definitions. In addition to those terms defined in the Recitals and in other sections of this
Agreement, the following terms are specially defined for the purposes of this Agreement:
A. "Affordable Rent" is the maximum allowable Rent for an Affordable Unit that does
not exceed: (i) for Very Low Income Households, is equal to or less than one -twelfth (1/12) of thirty percent
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(30%) of fifty percent (50%) of Area Median Income, as adjusted for Assumed Household Size; (ii) for Low
Income Households, is equal to or less than one -twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of
Area Median Income; and (iii) for Median Income Households, is equal to or less than one -twelfth (1/12) of
thirty percent (30%) of one hundred percent (100%) of Area Median Income, as adjusted for Assumed
Household Size. Affordable Rent cannot exceed the rent for Market Rate Units. An example of the
calculations and methodology to be used to determine the Affordable Rent is illustrated in Exhibit B attached
hereto.
B. "Area Median Income" means median yearly income in Marin County as published
pursuant to California Code of Regulations, Title 25, Section 6932, or successor provision.
C. "Assumed Household Size" shall be based on presumed maximum occupancy levels
of one person in a studio apartment, two (2) persons in a one -bedroom unit, three (3) persons in a two-bedroom
unit, and one additional person for each additional bedroom thereafter.
D. "Density Bonus Term" is the period that commences when the City, Marin Housing
Authority, and the Developer record the Regulatory Certificate described in Section 5 and that tenninates fifty-
five (55) years after the date of the recordation of the Regulatory Certificate.
E. "Eligible Household" is a household which has been detennined to be eligible to rent
an Affordable Unit in compliance with Density Bonus Law and this Agreement.
F. "Household Income" is the combined, gross, pre-tax income of all occupants of the
applicant household, including the income of any co -signors on the lease.
G. "Low Income Affordable Unit" means an Affordable Unit reserved for occupancy by
Low Income Households at an Affordable Rent.
H. "Low Income Household" means a household whose Household Income does not
exceed the lower income limits applicable to Marin County, adjusted for household size, as published annually
by the California Department of Housing and Community Development; generally a household with a
Household Income between fifty percent (50%) and eighty percent (80%) of Area Median Income, adjusted for
actual household size.
1. "Market Rate Units" are Units which are not Affordable Units.
J. "Median Income Household" means a household whose Household Income does not
exceed the Area Median Income applicable to Marin County, adjusted for household size, as published
annually by the California Department of Housing and Community Development; generally a household with a
Household Income between eighty percent (80%) and one hundred percent (100%) of Area Median Income,
adjusted for actual household size.
K. "Rent" is the total of monthly payments as calculated by the Marin Housing Authority
and paid by the Tenant of an Affordable Unit for all of the following: (1) use and occupancy of the Affordable
Unit and land and all facilities associated with the Affordable Unit, including but not limited to parking,
bicycle storage, storage lockers, and use of all common areas; (2) any separately charged fees or service
charges assessed by the Developer which are required of all tenants of Units in the Project, except security
deposits; (3) an allowance for utilities paid by the Tenant as established by the Marin Housing Authority,
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including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but
not telephone service or cable TV; and (4) any other interest, taxes, fees or charges for use of the land or
associated facilities that are assessed by a public or private entity other than the Developer and paid by the
Tenant.
L. "Tenant" is a household occupying an Affordable Unit pursuant to a valid lease or
rental agreement with the Developer.
M. "Tenant Lease" is defined in Section 3.4.
N. "Very Low Income Household" means a household whose Household Income does
not exceed the very low income limits applicable to Marin County, adjusted for household size, as published
annually by the California Department of Housing and Community Development; generally a household with a
Household Income at or below fifty percent (50%) of Area Median Income.
O. "Very Low Income Affordable Unit" means an Affordable Unit reserved for rent by
Very Low -Income Households at an Affordable Rent.
1.2 Exhibits. The following exhibits are attached to and incorporated into this Agreement:
Exhibit A
Legal Description of the Property.
Exhibit B
Unit Description and Sample Calculation of Affordable Rent.
Exhibit C
Household Income Certification.
Exhibit D
Certificate of Continuing Compliance.
Exhibit E
Notice of Commencement of Density Bonus Term
2. Construction of Development and Affordable Unit
2.1 Satisfaction of Affordable Housine Reauirement. The Affordable Housing Requirements
shall be satisfied with respect to the Property if. (a) the Developer constructs or causes to be constructed the
Affordable Unit and (b) Developer offers all dwelling units in the Development for rent and rents the
Affordable Unit to an Eligible Household in compliance with Section 3 below.
2.2 Affordable Unit. To satisfy Developer's affordable housing requirements for the Development
under Density Bonus Law and the Density Bonus Ordinance, at initial occupancy of the Development,
Developer shall rent one (l) Affordable Unit to a Very Low Income Household at Affordable Rents, as
specified in Section 3 below, for the Density Bonus Term.
2.3 Location of Affordable Unit. The Affordable Unit shall be constructed on the Property in the
location(s) shown or described in Exhibit B attached hereto.
2.4 Aupearance, Size, Bedroom Count and Tenure.
A. Appearance and Maintenance of Affordable Unit. The design, square footage,
appearance, and general quality of the Affordable Unit shall be compatible with those of the Market Rate Units
and consistent with the designs provided for the Project Approvals. Developer shall allocate and assign parking
spaces, bicycle storage, storage lockers, and other spaces reserved for use by individual Units to the Affordable
Unit on the same basis as for the Market -Rate Units, and Tenants of the Affordable Unit shall have equal
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access to the Development's common areas as is given to the residents of the Market -Rate Units, but any fee
charged for use of common areas or for spaces reserved for individual Units shall be included in the Tenant's
Rent. Once completed, the Affordable Unit shall not be kept vacant or used for any purpose except for
residential use and shall be marketed concurrently with the Market -Rate Units and offered for rent to Eligible
Households at Affordable Rents.
B. Location and Characteristics of Affordable Unit. Developer shall provide the
Affordable Unit in the Development in accordance with the schedule shown in Exhibit B. As provided in
Exhibit B, the Affordable Unit shall be dispersed within the Development with a bedroom mix equivalent to
the bedroom mix of the Market -Rate Units, except that the Developer may elect to provide the Affordable Unit
with more bedrooms.
C. Chance in Location of Affordable Unit. If, after recordation of this Agreement,
Developer desires to change the location of any Affordable Unit within the Development, Developer shall
submit a written request for such change to the Director, who may approve such request provided that any
relocated Affordable Unit shall be comparable to those listed in Exhibit B and shall contain the same number
of bedrooms.
2.5 Schedule for Developing Affordable Unit. Developer shall provide the Affordable Unit
pursuant to the following schedule:
A. Prior to issuance of any building permit for the Development, this Agreement shall be
duly executed by the City, Marin Housing Authority, and the Developer and recorded against the Property.
B. Building permits for the Affordable Unit shall be issued concurrently with building
pen -nits for the Market Rate Units, such that, of the units that have been issued building permits, at least ten
percent (10%) shall be Affordable Units.
C. Certificates of occupancy or final inspections for the Affordable Unit shall be issued
concurrently with certificates of occupancy or final inspections for the Market Rate Units, such that, of the
units that have been issued certificates of occupancy or final inspections, at least ten percent (10%) shall be
Affordable Units.
3. Rent Reeulatory Provisions
The provisions of this Section 3 are applicable until the expiration of the Density Bonus Term.
3.1 Affordabilitv and Occupancv Covenants.
A. Occuvancv Reauirements. Subject to the provisions of Section 3.2 below, the
Affordable Unit shall be rented to and occupied by or, if vacant, available for occupancy by, a Very Low
Income Household. The Affordable Unit shall not be kept vacant or used for any purpose except for residential
use and, when vacant, shall be offered for rent to Eligible Households at Affordable Rent.
B. Allowable Rent. Subject to the provisions of Section 3.2 below, the maximum Rent
charged to Tenants of the Affordable Unit shall not exceed Affordable Rent.
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C. Avi)roval of Rents. Initial Rent for tine Affordable Unit shall be approved by the Marin
Housing Authority prior to occupancy at tine time the Developer submits the marketing plan required by
Section 4.2 below. Marin Housing Authority shall review all proposed Rent increases to determine whether the
proposed increases are consistent with the provisions of this Agreement. Developer shall certify to Marin
Housing Authority that Developer is not charging any fee other than Affordable Rent to Tenants of the
Affordable Unit for all of the components of Rent defined in Section 1.1 above.
D. Schedule of Affordable Rents. The City has provided the Developer with a schedule
of Affordable Rents for the Affordable Unit in effect on the date of this Agreement, set forth in attached
Exhibit B. Marin Housing Authority annually determines Affordable Rents (including utility allowances) based
on changes in Area Median Income and utility allowances, and Developer shall obtain a copy of the schedule
from Marin Housing Authority.
3.2 Increased Income of Tenants.
A. Increase from Very Low Income to at or below Low Income. If, upon annual
recertification of a Tenant's Household Income, the Developer determines that a former Very Low Income
Household's Income has increased and exceeds the qualifying income for a Very Low Income Household, but
does not exceed the qualifying limit for a Low Income Household, then, upon expiration of the Tenant's lease
and after thirty (30) days written notice to the Tenant, the Tenant's rent may be increased to Affordable Rent
for Low Income Households.
B. Increase from Very Low Income or Low Income to at or below Median Income. If,
upon annual recertification of a Tenant's Household Income, tine Developer determines that a former Very Low
Income or Low Income Household's Income has increased and exceeds the qualifying income for a Very Low
Income or Low Income Household, but does not exceed the qualifying limit for a Median Income Household,
then, upon expiration of the Tenant's lease and after thirty (30) days written notice to the Tenant, the Tenant's
rent may be increased to Affordable Rent for Median Income Households.
C. Increase from Very Low Income. Low Income. or Median Income to Above Area
Median Income. If, upon recertification of a Tenant's Household Income, the Developer determines that the
Tenant's Household Income has increased and exceeds the qualifying income for a Median Income Household,
then the Tenant shall be given written notice that: (i) Tenant's Rent shall be increased sixty (60) days after tine
date in the notice to an amount to be detennined by Developer but not to exceed Rent for a comparable
Market -Rate Unit; and (ii) Tenant shall vacate the Affordable Unit six (6) months from the date of the notice or
upon expiration of the Tenant's lease, whichever is later. If, prior to the date by which the Tenant must vacate
the Affordable Unit, another Unit is vacated which is not designated as an Affordable Unit and is of
appropriate bedroom size, the Developer may, at the Developer's option, request the City to approve a change
in the location of the Affordable Unit; allow the Tenant to remain in the original Unit; and designate the newly
vacated Unit as an Affordable Unit if approved by the City.
3.3 Agreement to Limitation on Rents. The Development has received Incentives from the City
under the Density Bonus Law and the Density Bonus Ordinance, which is a form of assistance specified in
Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections
1954.52(b) and 1954.53(a)(2) of the Costa -Hawkins Act provide that, where a developer has received such
assistance, certain provisions of the Costa -Hawkins Act do not apply if a developer has so agreed by contract.
Tine Developer hereby agrees to limit Rents as provided in this Agreement in consideration of the Developer's
receipt of the Incentives and further agrees that any limitations on Rents imposed on the Affordable Unit are in
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conformance with the Costa -Hawkins Act. The Developer further warrants and covenants that the ten -ns of this
Agreement are fully enforceable.
3.4 Lease Provisions. Tile Developer shall use a form of Tenant lease (the "Tenant Lease")
approved by the City for t13e Affordable Unit. The City shall not withhold approval from any form that:
A. provides that the Tenant's Household Income is subject to annual certification;
B. provides for termination of the lease for failure: (1) to provide any information
required under this Agreement or reasonably requested by the Developer to establish or recertify the Tenant's
qualification, or the qualification of the Tenant's household, as an Eligible Household in accordance with this
Agreement, or (2) to qualify as an Eligible Household as a result of any material misrepresentation made by
such Tenant with respect to the Household Income computation or certification;
C. provides that t13e Rent may not be raised more often than once every twelve (12)
months. The Developer will provide each Tenant with at least sixty (60) days written notice of any increase in
Rent applicable to such Tenant;
D. prohibits subleasing of the Affordable Unit or any portion of the Affordable Unit or
any spaces reserved for the use of the Tenant, contain nondiscrimination provisions, and includes the Tenant's
obligation to inform the Developer of any need for maintenance or repair;
E. includes reasonable rules of conduct consistent with California law;
F. allows termination of the tenancy only for an increase in Tenant's Household Income
above qualifying income for Low Income Households or for good cause, including violation of the terms and
conditions of the Tenant Lease, violations of applicable federal, state, or local law, or other good cause;
G. includes at Developer's option, the obligation for Tenant to provide a security deposit
not exceeding one months' rent.
4. Marketing, Income Certification, Renortiniz, and Annual Fee.
4.1 ReaUired Citv Auorovals. At least ninety (90) days before any Units in the Development
receive a final inspection or certificate of occupancy, the Developer shall notify City and the Marin Housing
Authority of the availability of the Affordable Unit and provide to the City and Marin Housing its proposed
marketing plan for the Affordable Unit as described below; the proposed form of Tenant Lease to confirm
conformance with the provisions of Section 3.4 above; and proposed Affordable Rent for the Affordable Unit,
all for City and Marin Housing Authority review and approval. The Affordable Unit shall be marketed
concurrently with the marketing of the Market -Rate Units.
4.2 Marketing Plan. The Developer's marketing plan shall be consistent with the provisions of
subsections (a) and (b) below. Upon receipt of the marketing plan, the City shall promptly review the
marketing plan and shall approve or disapprove it within thirty (30) days after submission. If the marketing
plan is not approved, the Developer shall submit a revised marketing plan within thirty (30) days.
A. Prohibition on Discrimination in Tenant Selection (Section 8 Vouchers and Certificate
Holders). The Developer will review applications from prospective tenants of the Affordable Unit, on the same
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basis as all other prospective tenants, of persons who are recipients of federal certificates for rent subsidies
pursuant to the existing housing program under Section 8 of the United States Housing Act or any successor.
The Developer shall not apply selection criteria to Section 8 certificate or voucher holders that are more
burdensome than criteria applied to all other prospective tenants for the Affordable Unit, nor shall the
Developer apply or pen -nit the application of management policies or lease provisions with respect to the
Development which have the effect of precluding occupancy of Affordable Unit by such prospective tenants.
B. Marketing Materials. The marketing plan submitted to the City shall include the
following: means to be used to advertise the Affordable Unit to the public upon initial occupancy and as
vacancies occur and maintenance of a waiting list; the amount of any application screening fee to be imposed
by Developer, and information to be provided to applicants, including conditions and restrictions applicable to
occupancy of the Affordable Unit, current Affordable Rent, permitted Rent increases, maximum qualifying
Household Income for an Eligible Household, requirement for annual Household Income recertification,
preferences, and requirement to vacate the Affordable Unit if the Tenant's Household Income exceeds the
maximum qualifying income.
4.3 Income Certification. Upon initial occupancy and annually thereafter, the Developer will
obtain, complete and maintain on file Household Income certifications (Exhibit C), or a similar form as may be
approved by the City, for each Tenant renting the Affordable Unit. Developer shall make a good faith effort to
verify that the Household Income certifications provided by a Tenant is accurate by taking two or more of the
following steps as a part of the verification process for all members of the Tenant household age eighteen (18)
or older: (a) obtaining a minimum of the three (3) most current pay stubs; (b) obtaining an income tax return
for the most recent tax year including copies of any income tax returns where the Tenant is claimed as a
dependent; (c) conducting a credit agency or similar search; (d) obtaining the three (3) most current savings
and checking account bank statements; (e) obtaining an income verification form from a current employer; (f)
obtaining an income verification form from the Social Security Administration and/or the California
Department of Social Services if an adult member of the Tenant's household receives assistance from either of
such agencies; or (g) if the Tenant is unemployed and has no such tax return, obtain another form of
independent verification. The Developer shall maintain copies of annual Household Income certifications and
to maintain that form on file for a minimum of five years and shall permit the City or their designee to inspect
the household income certifications at the Developer's office upon three days' notice. The Developer shall
provide any additional information reasonably requested by the City or its designee.
4.4 Annual Report. Tile Developer shall submit to the City and Marin Housing Authority by June
30 of each year a report, in a form prescribed by or otherwise acceptable to the City, verifying compliance by
Developer with the ten -ns of this Agreement and certified as correct by the Developer under penalty of perjury.
Exhibit D Certification of Continuing Compliance, or a similar form as may be approved by the City, may be
used to meet this requirement. The annual report shall include without limitation the following information:
A. Certifications of eligibility for all Tenants of the Affordable Unit at the time of initial
occupancy and upon the yearly anniversary of their continuing tenancies.
B. Verified Household Income statements. Developer shall retain in the Tenant's file all
verifications of Tenant's Household Income.
C. Number of persons in each Affordable Unit.
D. Certification of the amount of Rent charged for the year for the Affordable Unit.
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E. Certification that Developer is not charging any fee other than Affordable Rent to
Tenants of the Affordable Unit for all of the components of Rent defined in Section 1.1 above.
F. Other information reasonably required by the City.
4.5 Other Reports. Within fifteen (15) days after receipt of a written request, Developer shall
provide any other information or completed forms requested by the City or Marin Housing Authority to ensure
compliance with this Agreement.
4.6 Records. The Developer shall maintain complete, accurate, and current records pertaining to
the Units for five (5) years after creating such records, and shall pen -nit any duly authorized representative of
the City or Marin Housing Authority to inspect and copy such records, including the records pertaining to
Household Income and household size of Tenant households.
4.7 Initial Setup Fee The Developer agrees to pay to the City an initial setup fee in the amount
of One Thousand Dollars ($1,000) to review the documents listed in this Section 4. If City expenses to review
the documents are in excess of One Thousand Dollars ($1,000), the Developer upon written demand shall pay
such actual excess costs.
4.8 Annual Monitoring fee. In addition to the initial set -tip fee described in Section 4.7 above, the
Developer agrees to pay to the City during the Density Bonus Term an annual monitoring fee payable on or
before June 30 of each year as established by the City. The initial annual monitoring fee is shown on Exhibit
D.
5. Commencement of Density Bonus Term. The Density Bonus Term shall commence on the date that
the Developer, City, and Marin Housing record a Notice stating that the Affordable Unit is rented and occupied
by an Eligible Household. Such notice shall identify the beginning and end dates of the Density Bonus Tenn
(Exhibit E).
6. Management of Pronerty and Property Maintenance.
6.1 Management Responsibilities. The Developer is responsible for all management fimctions
with respect to the Development, including, without limitation, the annual recertification of household size and
Household Income (subject to review by the City or its assignee), selection of Tenants, maintenance of a
waiting list for the Affordable Unit, evictions, collection of Rents and deposits, maintenance, landscaping,
routine and extraordinary repairs, replacement of capital items, and security. The City and Marin Housing
Authority shall have no responsibility over management of the Development.
6.2 Property Maintenance. The City places prime importance on quality maintenance to ensure
that all developments within the City which include affordable housing units are not allowed to deteriorate due
to below-average maintenance. Developer shall provide the Affordable Unit with the same level and quality of
maintenance, including performance of repairs and periodic replacement of fixtures, as the Market -Rate Units.
The Developer agrees to maintain all interior and exterior improvements, including landscaping, on the
Property in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with
all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other
governmental agencies and bodies having or claiming jurisdiction and all their respective departments,
bureaus, and officials.
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6.3 Remedies. In the event that the Developer breaches any of the covenants contained in this
Section 6 and such default continues for a period often (10) days after written notice from the City specifying
the nature of the breach with respect to graffiti, debris, waste material, or a health or safety violation, or thirty
(30) days after written notice from the City specifying the nature of the breach with respect to general
maintenance, landscaping and building improvements, then the City, in addition to whatever other remedy it
may have at law or in equity, shall have the right (but is not required) to enter upon the Property after ten (10)
days' prior written notice to the Developer describing the nature of the City's intended actions and to perform or
cause to be performed all acts and work necessary to protect, maintain, and preserve the improvements and
landscaped areas on the Property, as specified in a correction plan approved by the City, and to attach a lien on
the Property, or to assess the Property, in the amount of the expenditures incurred by the City or its agents
arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such
cure, plus an administrative charge equal to fifteen percent (15%) of the amount of such expenditures (the
expenditures plus the administrative charges are the "Correction Costs"), if Developer does not remit the filll
amount of the Correction Costs to the City within thirty (30) days after City notifies Developer of the full
amount of the Correction Costs.
6.4 Taxes and Assessments. Developer shall pay all real and personal property taxes, assessments,
if any, and charges and all franchise, income, employment, old age benefit, withholding, sales, and other taxes
assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing,
or any lien or charge from attaching to the Property; provided, however, that Developer shall have the right to
contest in good faith, any such taxes, assessments, or charges. In the event Developer exercises its right to
contest any tax, assessment, or charge against it, Developer, on final determination of the proceeding or
contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all
costs, charges and interest.
6.5 Damage or Destruction of Development. If all of the Units on the Property are demolished, the
Incentives granted to Developer under Density Bonus Law shall terminate and the terms of this Agreement
shall terminate and be of no fi►rther force and effect.
7. Enforcement
7.1 Covenants Runnina with the Land. The City, Marin Housing Authority, and Developer hereby
declare their express intent that the covenants and restrictions set forth in this Agreement shall apply to and
bind Developer and its heirs, executors, administrators, successors, transferees, and assignees having or
acquiring any right, title or interest in or to any part of the Property and shall run with and burden such portions
of the Property until terminated in accordance with Section 7.2. Until all or portions of the Property are
expressly released from the burdens of this Agreement, each and every contract, deed or other instrument
hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have
been executed, delivered, and accepted subject to such covenants and restrictions, regardless of whether such
covenants or restrictions are set forth in such contract, deed or other instrument. In the event of foreclosure or
transfer by deed -in -lieu of all or any portion of the Property prior to completion and sale of the Affordable
Unit, title to all or any portion of the Property shall be taken subject to this Agreement. Developer
acknowledges that compliance with this Agreement is a requirement of Density Bonus Law and the Project
Approvals, and that no event of foreclosure or trustee's sale may remove these requirements from the Property.
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7.2 Release of Property from Agreement.
A. Prior to the expiration of the Density Bonus Term, Developer shall provide all
notifications required by Government Code Sections 65863.10 and 65863.11 or successor provisions and any
other notification required by any state, federal, or local law.
B. Upon the expiration of the Density Bonus Term, City and Marin Housing Authority
shall execute and record a release of the Development, the Property, and each Unit in the Development from
the burdens of this Agreement within thirty (30) days following written notice from the Developer, if at the
time the Developer is in compliance with all teens of this Agreement.
7.3 Default. Failure of the Developer to satisfy any of Developer's obligations under the tenns of
this Agreement within thirty (30) days after the delivery of a notice of default from the City will constitute a
default under this Agreement and a failure to satisfy the Project Approvals and Density Bonus Law. In addition
to remedies for breach of this Agreement, the City or Marin Housing Authority, if authorized by the City, may
exercise any and all remedies available to it, including but not limited to:
A. withholding, conditioning, suspending or revoking any permit, license, subdivision
approval or map, or other entitlement for the Development, including without limitation final inspections for
occupancy and/or certificates of occupancy;
B. instituting against the Developer, or other parties, a civil action for declaratory relief,
injunction or any other equitable relief, or relief at law, including without limitation an action to rescind a
transaction and/or to require repayment of any fiends received in connection with such a violation;
C. where one or more persons have received financial benefit as a result of violation of
this Agreement or of any requirement imposed under the Density Bonus Law, instituting legal action to recover
as necessary, a penalty in any amount up to and including the amount of financial benefit received, in addition
to recovery of the benefit received;
D. requiring the Developer or his/her successors in interest to the Property to pay the City
Rent or any other payment received by the Developer for the Affordable Unit from the date of any
unauthorized use of the Affordable Unit or in excess of Affordable Rent; and
E. Any other means authorized under the City of San Rafael Municipal Code, Density
Bonus Law, or any other federal or state statute.
7.4 Remedies Cumulative. No right, power, or remedy given to the City or Marin Housing
Authority by the terms of this Agreement or Density Bonus Law is intended to be exclusive of any other right,
power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to
every other right, power, or remedy given to the City by the terms of this Agreement, Density Bonus Law, or
by any statute or ordinance or otherwise against Developer and any other person. Neither the failure nor any
delay on the part of the City or Marin Housing Authority to exercise any such rights and remedies shall operate
as a waiver thereof, nor shall any single or partial exercise by the City or Marin Housing Authority of any such
right or remedy preclude any other or filrther exercise of such right or remedy, or any other right or remedy.
7.5 Attornev's Fees and Costs. If either party initiates an action to enforce its rights under the
Agreement, and elects at the initiation of the action to seek the recovery of attorneys' fees, the prevailing party
I1
885 01\2049494.3
3 92017
in such an action shall be entitled to an award of reasonable attorneys' fees and costs in addition to any other
recovery under this Agreement.
8. General Provisions
8.1 Appointment of Other Avencies. At its sole discretion, the City may designate, appoint or
contract with any other public agency, for-profit or non-profit organization to perforin some or all of the City's
obligations under this Agreement.
8.2 Records. Developer shall retain all records related to compliance with obligations under this
Agreement for a period not less than five (5) years from the date of origination of such records, and make them
available to City or Marin Housing Authority employees or others designated by the City for inspection and
copying on five (5) business days' written notice. The City and Marin Housing Authority shall be entitled to
monitor compliance with this Agreement and Density Bonus Law, and Developer shall cooperate with City
monitoring, including obtaining Tenant Rent and Household Income verification upon request of the City.
8.3 Nondiscrimination. The Affordable Unit shall be available for occupancy to members of the
general public. The Developer shall not give preference to any particular class or group of persons in renting
the Affordable Unit, except to the extent that the Affordable Unit is required to be rented to Eligible
Households and as required by this Agreement, including, without limitation, as set forth in Section 3 above;
provided, however, there shall be no discrimination against or segregation of any person or group of persons,
on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, source of
income (e.g., SSI), age (except for lawful senior housing), ancestry, or disability, in the leasing, transferring,
use, occupancy, tenure, or enjoyment of any Unit nor shall the Developer or any person claiming under or
through the Developer, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of Tenants of any Unit or in connection with the
employment of persons for the construction, operation and management of the Development.
8.4 Hold Harmless. Developer will indemnify and hold harnless (without limit as to amount) City
and Marin Housing Authority and their elected officials, officers, employees and agents in their official
capacity (hereinafter collectively referred to as "Indemnitees"), and any of them, from and against all loss, all
risk of loss and all damage (including expense) sustained or incurred because of or by reason of any and all
claims, demands, suits, actions, judgments and executions for damages of any and every kind and by
whomever and whenever made or obtained, allegedly caused by, arising out of or relating in any manner to the
Development, the Affordable Unit, or Developer's performance or non-performance under this Agreement,
including claims pursuant to California Labor Code Section 1720 et seq., and shall protect and defend
Indemnitees, and any of them with respect thereto, except to the extent arising from the active negligency, sole
negligence or willful misconduct of the Indemnitees. The provisions of this Section shall survive expiration or
other termination of this Agreement or any release of part or all of the Property from the burdens of this
Agreement, and the provisions of this Section shall remain in full force and effect.
8.5 Notices. All notices required pursuant to this Agreement shall be in writing and may be given
by personal delivery or by registered or certified mail, return receipt requested, to the Party to receive such
notice at the addressed set forth below:
12
885101\2049494.3
3/912017
To the City:
To the Developer:
To Marin Housing Authority:
City of San Rafael
Community Development Department
1400 Fifth Avenue
San Rafael, Ca 94915-1560
G Square Partners, LLC
P.O. Box 2938
San Anselmo, CA 94979
Attn: Ralph S. Epstein, Managing Member
LRT Investments, LCC
50 Moncada Way
San Rafael, CA 94901
Attn: Stuart D. Lum, Managing Member
Marin Housing Authority
Executive Director
4020 Civic Center Drive
San Rafael, CA 94903-4173
Any party may change the address to which notices are to be sent by notifying the other parties of the
new address, in the manner set forth above.
8.6 Integrated Agreement. This Agreement constitutes the entire Agreement between the Parties
and no modification hereof shall be binding unless reduced to writing and signed by the Parties hereto.
8.7 Each Party's Role in Drafting the Agreement. Each Party to this Agreement has had an
opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and
negotiate revisions to the Agreement. Accordingly, neither Party shall rely upon Civil Code Section 1654 in
order to interpret any uncertainty in the meaning of the Agreement.
8.8 Amendment of Agreement: ADnrovals and Consents.
A. Amendments to this Agreement, including any proposal to change any condition of
the Project Approvals, shall be subject to the review and approval of the decision-making body which
approved the Development. No amendment may be approved that is inconsistent with State law, the San Rafael
Municipal Code, or any adopted affordable housing guidelines. Upon approval, a new Agreement or
amendments to this Agreement, as appropriate, shall be executed and recorded.
B. The City has authorized the City Manager to execute this Agreement and has
authorized the City Manager to deliver such approvals or consents as are required by this Agreement. Marin
Housing Authority has authorized the Executive Director to execute this Agreement and has authorized
Executive Director to deliver such approvals or consents as are required by this Agreement. Any consents or
approvals required under this Agreement shall not be unreasonably withheld or made, unless it is specifically
provided that a sole discretion standard applies.
13
885\01\2049494.3
3/9/2017
C. This Agreement, and any section, subsection, or covenant contained herein, may be
amended only upon the written consent of the City, Marin Housing Authority, and the Developer.
8.9 No Claims. Nothing contained in this Agreement shall create or justify any claim against the
City or Marin Housing Authority by any person that Developer may have employed or with whom Developer
may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the
performance of any work or services with respect to the Property or the construction of the Development or
construction of the Affordable Unit.
8.10 Applicable Law and Venue. This Agreement shall be governed by California law. Venue for
any dispute arising out of this Agreement shall be Marin County.
8.11 Waivers. Any waiver by the City or Marin Housing Authority of any obligation or condition
in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City or Marin
Housing Authority to take action on any breach or default of Developer or to pursue any remedy allowed under
this Agreement or applicable law. Any extension of time granted to Developer to perform any obligation under
this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement.
Consent by the City or Marin Housing Authority to any act or ornission by Developer shall not be construed to
be consent to any other or subsequent act or ornission or to waive the requirement for Marin Housing
Authority's or the City's written consent to future waivers.
8.12 Title of Parts and Sections. Any titles of the sections, subsections, or subparagraphs of this
Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of
the Agreement's provisions.
8.13 Multiple Originals: Counterpart. This Agreement may be executed in multiple originals, each
of which is deemed to be an original, and may be signed in counterparts.
8.14 Recording of Agreement. This Agreement shall be recorded against the Property in the
Official Records of the County of Marin prior to the recordation of any parcel reap or final subdivision map or
issuance of any building pen -nit for the Development, whichever occurs first.
8.15 Severabilitv. In the event any limitation, condition, restriction, covenant, or provision
contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction,
the remaining portions of this Agreement shall nevertheless be and remain in full force and effect.
14
885\01\2049494.3
3/9/2017
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day
and year first above written.
DEVELOPER:
CITY:
G Square Partners, LLC, a California limited liability City of San Rafael, a municipal corporation
company
r
By: rrtz,
-
By:Cph
"'�'L 1/ — Jii Scly Man er
S. Epstein, Managing Member
LRT Investment, LLC, a California limited liability ATTEST:
company
By:
Stuart D. Lum, Managing Member
MARIN HOUSING AUTHORITY:
Housing Authority of the County of Marin, a public
body, corporate and politic, created under the Housing
Authority Law of the St7ecutive
alifornia
By: c -�—
Lewis A. Jordan, E Director
16
885\01\2049494.3
3/9/2017
Esther Beirne, City Clerk
APPROVED AS TO FORM:
% .R r
Robert F. Epstein, City Attorney
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF MARIN
On ! / %`� 2 2017, before me, / /� , Notary Public,
�1 ���,
personally appearec��S leS4-erh/ , who proved to me on the basis of
satisfactory evidence to be the person(s) whose natne(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.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
w, iftA�
SILVER CLARK F
Commission # 2025748
a s Notary Public - Callforniti
/ Marin County
F My Comm. Expires Jun Is, 201
885\01\2049494,3
3/9/2017
_gje-j
Name:
Notary Public
17
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SILVER CLARK
Commission # 2025748 a
a =� Notary Public - California z
z `t" Marin County
My Comm. Expires Jun 18, 2017
r v�✓'o'-v'v'V'vti.^`V"�'V"'V-L""17'^Y'Q`J"
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF MARIN lv2FA-
On � Zo 1 before me, ,SJ c , Notary Public,
personally ap eared G j� L �� , who proved to me oil the basis of
satisfactory evidence to be the person(s) whose names) 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.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
Mame:
SILVER CLARK
Commission # 2025748
; ��< Notary Public - California z
z ' Marin County D
My Comm. Expires Jun 18, 2017
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18
885\01\2049494.3
3/9/2017
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF MARIN
On l �Zp17before me, (.,x01 U . ZAX 1,4 Yl , Notary Public,
personally appea ed "u) k A. :;,,r-e(AK who proved to me on the basis of
satisfactory evidence to be the person(.*) whose name(s) is/a;e-subscribed to the within instrument and
acknowledged to me that he/s4ieAkey executed the same in his/l I4@-ir authorized capacity(ies), and that
by his/lam signature() on the instrument the person(A), or the entity upon behalf of which the
person(A acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
/ �'�� -
A.
Name: ro _
CAROL J. KAZARIAN
Commission # 2070835
Z ,-m Notary Public - California n
Z Marin County
M Comm. Expires Ju` 15,2018
19
885W1\2049494.3
3/9/2017
#t7f/l rt
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Marin
On before me, E. Beirne, Notary Public
(insert name and title of the officer)
personally appeared ::;:!'—/,y 94.o U 7 -z—
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(so/are
subscribed to the within instrument and acknowledged to me thatg/she/they executed the same in
lQher/their authorized capacity(ies), and that by&/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. E. BEIRNE t
COMM. #2112433 z
0 �� Notary Public - California o
Z Marin County
I l� ' My Comm. Expires June 10, 20191
Signature (Seal)
EXHIBIT A
DESCRIPTION OF PROPERTY
Beginning at a point formed by the intersection of the westerly line of "G" Street, with the
northerly line of 4th Street; thence running westerly along said northerly line of 4th Street;
a distance of 100 feet; thence at a right angle northerly a distance of 75 feet; thence at a
right angle easterly at a distance of 100 feet to the westerly line of "G" Street; thence
southerly along said westerly line of "G" Street, a distance of 75 feet to the point of
beginning.
EXHIBIT B
UNIT DESCRIPTION AND SAMPLE CALCULATION OF AFFORDABLE RENT
TOTAL NUMBER OF VERY LOW AND LOW INCOME UNITS:One
One 1 Bedroom unit @ Very Low.
UNIT LOCATION -DESCRIPTION: One 1 Bedroom unit
ALLOWABLE RENT CALCULATION: Housing expense includes utility allowance per
schedule below (allowances from Marin Housing). Very Low Income is 50% of Area
Median Income, Low Income is 60% of Area Median Income and Moderate Income is
80% of Area Median Income. The applicable household and unit sizes are listed below.
Actual households can exceed the household size indicated but the rental calculation
will not change.
For example, using the 2017 Area Median Income such calculation would be as follows:
The One Bedroom Housing Expense shall not exceed 1/12 of 30% of 50% (very low
income).
The maximum qualifying tenant income is 50% of Area Median Income for very low
income or a lesser income as defined by the Owner.
Household Size
2 Person
Unit Type
1 BRM
Median Income
92,250
50%
46,150
Monthly Income
3,846
30% of Income
1,154
Monthly Utility
Allowance
(48)
Allowable Rent
1,106
i
EXHIBIT C
HOUSEHOLD INCOME CERTIFICATION
SAN RAFAEL BELOW MARKET RATE RENTAL MONITORING PROGRAM
Project Name: G Square Date:
APARTMENT NUMBER # NUMBER OF BEDROOMS
MONTHLY RENT $
OCCUPANT/HOUSEHOLD NAME:
TOTAL HOUSEHOLD GROSS ANNUAL INCOME:
Total household income is the combined, gross, pre-tax income of all occupants of the
household including any co -signors on the lease. Income includes all wages, salaries,
governmental assistance, as reported as gross income for federal income tax; or verified by pay
stubs, bank account records, governmental assistance records or other relevant documentation.
Attached hereto are the tax returns, pay stubs or other evidence of the income of the persons
listed below:
Name of household
member
Relationship to
head of household
Age
Place of Employment/Source of
income
I/We understand and have read and answered fully, frankly and personally each of the above
questions under penalty of perjury and do hereby swear they are true.
Occupant -Head of Household
Date:
PROPERTY OWNER TO MAINTAIN THIS DOCUMENT FOR FIVE YEARS FOR INSPECTION
PURSUANT TO AGREEMENT WITH THE CITY
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EXHIBIT E
RECORDING REQUESTED By and
WHEN RECORDED MAIL TO:
City of San Rafael
Attn: City Clerk
1400 Fifth Avenue
San Rafael, Ca 94901
No fee for recording pursuant to
Government Code Section 27383
NOTICE OF COMMENCEMENT OF DENSITY BONUS TERM
A. The CITY OF SAN RAFAEL, a municipal corporation ("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 ("Marin Housing Authority"); and G SQUARE
PARTNERS and LRT INVESTMENT , California limited liability companies, or any successor in
interest ("Developer"), collectively the "Parties," entered into that certain Regulatory Agreement and
Declaration of Restrictive Covenants executed on and recorded in the Official
Records of the County of Marin, California (the "Official Records") on as Document
No. (the "Affordability Restrictions") as to the property located in the City and
described in EXHIBIT A attached hereto and incorporated by reference herein (the "Property"). The
Affordability Restrictions are an equitable servitude and covenant running against the land for the benefit
of the City. All capitalized terms not otherwise defined in this Notice of Commencement shall have the
meaning ascribed to them in the Affordability Restrictions.
B. Section 5 of the Affordability Restrictions provides that the Density Bonus Term, as
defined in the Affordability Restrictions, shall commence on the date that this Notice of Commencement
is recorded in the Official Records.
NOW, THEREFORE, the Parties hereby declare as follows:
1. The Affordable Unit has been rented and is occupied by an Eligible Household.
2. The beginning date of the Density Bonus Term is . The Density Bonus
Tenn shall terminate on , 55 years from the date of this Notice.
Signatures of: following page
DEVELOPER:
CITY:
G Square Partners, LLC, a California limited City of San Rafael, a municipal corporation
liability company
By: By:
Ralph S. Epstein, Managing Member Jim Schutz, City Manager
LRT Investment, LLC, a California limited liability ATTEST:
company
By:
Stuart D. Lum, Managing Member Esther Beirne, City Clerk
MARIN HOUSING AUTHORITY:
Housing Authority of the County of Marin, a public
body, corporate and politic, created under the
Housing Authority Law of the State of California
APPROVED AS TO FORM:
By:
Lewis A. Jordan, Executive Director Robert F. Epstein, City Attorney
2
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF MARIN
On , before me,
, Notary Public, personally
appeared , who 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 ►ne 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.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS ►ny hand and official seal.
Name:
Notary Public
3