HomeMy WebLinkAboutCD Management Services for Ownership Affordable Housing Programgn Envelope ID: 6F395128-E5EF4FC0-81 FF-2D3192EE5585
Agreement
for BMR Program Portfolio Management
City of San Rafael
AGREEMENT FOR PROFESSIONAL SERVICES
FOR PROGRAM MANAGEMENT SERVICES FOR OWNERSHIP
AFFORDABLE HOUSING PROGRAM
THIS AGREEMENT is made and entered into this q of 2020, by
and between the CITY OF SAN RAFAEL (hereinafter "CITY"). and the I fOtiSING AUTHORITY
OF THE COUN1 Y OF MARIti (hereinafter "CONTRACTOR" or `'AUTHORITY").
This Agreement is for BMR Program Portfolio Management (the "Agreement") relating to
CITY's Below Nfarket Rate Homeownership Program (the "BMR Program"), and each unit that
is part ofthe HMR Program is referred to a "BMR unit".
RECITALS
WHEREAS, San Rafael General Plan 2020 contains policies for the provision ofaflordable
housing programs in San Rafael, and
WHEREAS, CITY has contracted with CONTRACTOR to manage CITY'S affordable
ownership housing program since the program's inception in the 1980's; and
WHEREAS. the CONTRACTOR manages the affordable ownership housing program for
all jurisdictions in the County, with the exception of the City of Novato; and
WHEREAS. the current contract expires on June 30, 2020. The CITY and
CONTRACTOR desire to renew the contract for an additional time period and to increase the
contract amount by two percent annually to reflect inflation costs.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
PItQJI:C-1- COORDINATION.
A. CITY'S Project Manager. Paul Jensen, Community Development Director, is
hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER, or
any successor PROJECT MANAGER that CITY may, in its sole discretion, designate, shall
supervise all aspects of the progress and execution of this Agreement.
B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single
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PROJECT DIRECTOR to have overall responsibility for the progress and execution of this
Agreement for CONTRACTOR. Carmen Hall Soruco is hereby designated as the PROJECT
DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution
of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR
shall notify the CITY within ten (10) business days of the substitution.
2. DL_`TIES OF CONTRACTOR.
CONTRACTOR shall perform the duties and/or provide services as pursuant to the Scope
of Program Management Services attached as Fxhibit A hereto and incorporated herein by reference,
3. DUTIES OF CITY.
CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as
follows:
A. Execute and, if appropriate, record documents that are appropriate or necessary for
the operation of the BMR Program and performance of this Agreement and transactions
contemplated hereby.
B. Provide conditions of approval for each new development that includes affordable
units to be managed by the AUTHORITY and execute the three -party (among AUTHORITY,
CITY, and a developer/contractor) Affurduble Housing Agreement,
C. Approve the AUTHORITY'S initial for -sale BMR Unit pricing information for
the Afbi-dable Housing Agreemernl pursuant to the conditions of approval and!or the affordability
requirements established by CITY.
D. Obtain CITY approvals of the three -party .j#brdable Housing Agreement among
AUTHORITY, CITY, and a developer.
E. Notify the AUTHORITY of any changes to local code requirements or policies
that impact the CITY'S BMR program, affordable housing program, or the terms of this
Agreement.
F, Communicate with AUTHORITY, including, but not limited to, meeting with
.AUTHORITY on an annual basis to review the asset management portfolio and the services.
G. Assess and pay fees due to AUTHORITY as required by this Agreement. The
invoiced fees and related expenses shall be paid by CITY within thirty (30) days of
AUTHORITY'S submission of billings. CITY further agrees to assume and be solely responsible
for all and any payment for legal services performed on CITY'S and AUTHORITY'S behalf per
this Agreement.
H. Provide, or cause to be provided, access by AUTHORITY to any and all CITY
information and documentation necessary for the AUTHORITY to perform pursuant to this
Agreement, including but not limited to, documents recorded by CITY.
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4. COMPENSATION. PROGRAM MANAGEMENT SERVICES FEE.
CITY shalt pay AUTHORITY $689.00 per BMR unit, annually, for each BMR Unit that
is in the BMR Program, which shall be due to AUTHORITY on or before July 1 of each year
during the term of this Agreement, commencing on July 1, 2020 and increased each anniversary
date thereafter by 2.001t0.
As of the effective date of this Agreement, the BMR Program in the City of San Rafael is
comprised of One hundred and twenty-three (123) Units. Accordingly, CITY shall pay to
AUTHORITY EIGIITY-FOUR THOUSAND SEVEN FlUNTDRF,D FORTY-SEVEN
DOLLARS ($84,747.00) for the initial 12 months of this Agreement for services rendered through
June 30, 2021.
J he total number of BMR Units will be increased or decreased over time. The
AUTHORITY will include new units during the Fiscal Year in which an eligible buyer is in
contract to purchase a BMR unit. The AUTHORITY wilt remove units from the I;MR program
during the Fiscal Year in which the affordability restrictions have expired or a BMR unit is
removed from the BMR program. These changes will adjust the total annual payment that CITY
is obligated to pay to the AUTHORITY.
TERM OF AGREE -MEN ENT.
Regardless of the term of the BMR Resale Restrictions recorded with CITY's BMR Units,
the term of this Agreement shall be for four (4) years commencing as of July 1, 2020 (FY 2020-
21 to FY 2023-2024), and will automatically renew for an additional one (1) year term, to June 30,
2025, unless either party notifies the other in writing of its intention to terminate this Agreement
at least 120 days prior to the expiration of the initial term.
6. TERMINAT10N`
A. Discretionary. Either party may terminate this Agreement during the contract period
without cause upon one hundred and twenty (120) days %vitten notice mailed or personally delivered
to the other party.
B. Cause. Either party may terminate this Agreement for cause upon sixty (60) days
written notice mailed or personally delivered to the other party, and the notiGcd party's failure to cure
or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice,
within such fifteen (15) day time period.
C. Effect of Termination. I'pon receipt of notice of termination, neither party shall
incur additional obligations under any provision of this Agreement without the prior written consent
of the other. In the event of termination of this Agreement by either party, with or without cause,
CITY shall pay CONTRACTOR a prorated amount of the full compensation amount otherwise due
for the fiscal year in which the termination becomes effective, calculated by dividing the number of
days that have elapsed in the fiscal year in which the termination becomes effective by 365, less
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credits for any Annual Maintenance and Certification Fees collected by CONTRACTOR.as
prov4ded4n4ktt
D. Return of Documents. Upon termination, any and all CITY documents or materials
provided to CONTRACTOR and any and all of CONTRACTOR'S documents and materials
prepared for or relating to the performance of its duties under this Agreement, shall be delivered to
CITY as soon as possible, but not later than thirty (30) days after termination.
OWN1:16HIP OF DOCIJMENTS.
The written documents and materials prepared by the CONTRACTOR in connection with
the performance of its duties under this Agreement shall be the sole property of CITY. CITY may
use said property for any purpose, including projects not contemplated by this Agreement.
INSPECTION AND AUDIT.
Upon reasonable notice. CONTRACTOR shall make available to CITY, or its agent, for
inspection and audit, all documents and materials maintained by CONTRACTOR in connection with
its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with
CITY or its agent in any such audit or inspection.
9. ASSIGNABILITY.
The parties agree that they shall not assign or transfer any interest in this Agreement nor the
performance of any of their respective obligations hereunder, without the prior written consent of the
other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising
hereunder shall be void and of no effect.
10. INSURANCE.
A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall
maintain, at no expense to CITY, the following insurance policies:
1. A commercial general liability insurance policy in the minimum amount of
one million dollars ($1,000,000) per occurrence/two million dollars (52,000,000) aggregate, for death,
bodily injury. personal injury, or property damage.
2. An automobile liability (owned, non -owned, and hired vehicles) insurance
policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence.
3. If any licensed professional performs any of the services required to be
performed under this Agreement, a professional liability insurance policy in the minimum amount of
one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover
any claims arising out of the CONTRACTOR's performance of services under this Agreement.
Where CONTRACTOR is a professional not required to have a professional license, CITY reserves
the right to require CONTRACTOR to provide professional liability insurance pursuant to this
section.
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4. if it employs any person, CONTRACTOR shall maintain worker's
compensation insurance, as required by the State of California, with statutory limits, and
employer's liability insurance with limits of no less than one million dollars ($1,000,000) per
accident for bodily injury or disease. CONTRACTOR's worker's compensation insurance shall
be specifically endorsed to waive any right of subrogation against CITY.
B. Other Insurance Requirements. The insurance coverage required of the
CONTRACTOR in subparagraph A of this section above shall also meet the following requirements:
1. Except for professional liability insurance or worker's compensation
insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers,
agents, employees, and volunteers, as additional insureds (for both ongoing and completed
operations) under the policies.
2. The additional insured coverage under CONTRACTOR'S insurance policies
shall be "primary and noncontributory" with respect to any insurance or coverage maintained by
CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The
"primary and noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as
ISO form CG20 Ol 04 13.
3. FXcept for professional
insurance, the insurance policies shall include,
contractual liability and personal injury.
liability insurance or worker's compensation
in their tett or by endorsement, coverage for
4. By execution of this Agreement, CONTRACTOR hereby grants to
CITY a waiver of any right to subrogation which any insurer of CONTRACTOR may acquire
against CITY by virtue of the payment of any loss under such insurance. CONTRACTOR
agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but
this provision applies regardless of whether or not CITY has received a waiver of subrogation
endorsement from the insurer.
5. If the insurance is written on a Claims Made Form, then, following termination
of this Agreement, said insurance coverage shall survive for a period of not less than five years.
6. 'l he insurance policies shall provide for a retroactive date of placement
coinciding with the effective date of this Agreement.
7. The limits of insurance required in this Agreement may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall
contain or be endorsed to contain a provision that such coverage shall also apply on a primary and
noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before
CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured.
8. It shall be a requirement under this Agreement that any available insurance
proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or
limits shall be available to CITY or any other additional insured party. Furthermore, the requirements
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for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement, or
(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds
available to the named insured; whichever is greater. No representation is made that the minimum
Insurance requirements of this agreement are sufficient to cover the obligations of the
CONTRACTOR under this agreement.
C. Deductibles and SIR'S. Any deductibles or self-insured retentions in
CONTRACTOR's insurance policies must be declared to and approved by the PROJECT
MANAGER and City Attorney and shall not reduce the limits of liability. Policies containing any
self insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be
satisfied by either the named insured or CITY or other additional insured party. At CITY's option,
the deductibles, or self-insured retentions with respect to CITY shall be reduced or eliminated to
CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and
related investigations, claims administration, attorney's fees and defense expenses.
D_ Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGI-;R
or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance
coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement
page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of
policy language or specific endorsements evidencing the other insurance requirements set forth in this
Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and
endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of
the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJEC f'
MANAGER and the City Attorney.
11. rNDEMNIFICATION.
A. CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release.,
defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees
and volunteers (collectively, the `'City Indemnitees"), from and against any claim, demand, suit,
judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert
fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of
CONTRACTOR'S willful misconduct or negligent performance of its obligations or conduct of
its operations under this Agreement. To the extent that liability is caused by the negligence or
willful misconduct of the City Indemnitees, the CONTRACTOR'S indemnification obligation
shall be reduced in proportion to the City Indemnitees' share of liability for the negligence or
willful misconduct. In addition, the acceptance or approval of the CONTRACTOR'S work or
work product by the CITY or any of its directors, officers or employees shall not relieve or reduce
the CONTRACTOR'S indemnification obligations. In the event the City Indemnitees are made
a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S
performance of or operations under this Agreement, CONTRACTOR shall provide a defense to
the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense,
including reasonable attorneys' fees, incurred in defense of such claims.
B. CITY shall, to the fullest extent permitted by law, indemnify, release, defend with
counsel approved by CONTRACTOR, and hold harmless CONTRACTOR, its officers, agents,
employees and volunteers (collectively, the "Contractor Indemnitees"), from and against any
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claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to
attorney's fees, expert ices and all other costs and fees of litigation, (collectively "CLAIMS"),
arising out of CITY'S willful misconduct or negligent performance of its obligations or conduct
of its operations under this Agreement. To the extent that liability is caused by the negligence or
willful misconduct of the Contractor Indemnitees, the CITY'S indemnification obligation shall
be reduced in proportion to the Contractor indemnitees' share of liability for the negligence or
willful misconduct. In the event the Contractor Indemnitees are made a party to any action,
lawsuit, or other adversarial proceeding arising from CITY'S performance of or operations under
this Agreement, CITY shall provide a defense to the Contractor Indemnitees or at
CONTRACTOR'S option reimburse the Contractor Indemnitees their costs of defense,
including reasonable attorneys' fees, incurred in defense of such claims.
C. The defense and indemnification obligations of this Agreement are undertaken in
addition to, and shall not in any way be limited by, the insurance obligations contained in this
Agreement, and shall survive the termination or completion of this Agreement for the full period
of time allowed by law.
12. NONDISCRIMINATION.
CONTRACTOR shall not discriminate, in any way, against any person on the basis of age,
sex, race, color, religion, ancestry, national origin or disability in connection with or related to the
performance of its duties and obligations under this Agreement.
13. COMPLIANCE WITH ALL LAWS.
CONTRACTOR shall observe and comply with all applicable federal, state, and local laws,
ordinances, codes, and regulations, in the performance of its duties and obligations under this
.Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with
these laws, ordinances, codes, and regulations. CONTRACTOR shall release, defend, indemnity
and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities,
penalties, fines and all other consequences from any noncompliance or violation of any laws.
ordinances, codes or regulations.
14. NO THIRD -PARTY BENEFICIARIES.
CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in
any third party, any benefit or right owed by one party, under the terms and conditions of this
Agreement, to the other party.
15. NOTICES.
All notices and other communications required or pennitted to be given under this Agreement.
including any notice of change of address, shall be in writing and given by personal delivery, or
deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to
be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the
date of deposit with the United States Postal Service. Notice shall he given as follows:
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TO CITY'S Project Manager.
TO CONTRACTOR'S Project Director:
16. INDEPENDENT CONTRACTOR.
Paul Jensen
Community Development Director
City of San Rafael
1400 Fifth Avenue
P.O. Box 151560
San Rafael. CA 94915-1560
Carmen Ilall Soruco
Homeownership Programs Manager
Dousing Authority of the County- of Marin
4020 Civic Center Drive
San Rafael, CA 94903-4173
For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers,
agents, and employees shall act in the capacity of an Independent Contractor, and not as employees
of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of
CONTRACTOR, its officers, agents, and employees be that of an Independent Contractor and not
that of an employee of CITY.
17. ENTIRE AGREEMENT -- AMENDMENTS
A. The terms and conditions of this Agreement, all exhibits attached, and all documents
expressly incorporated by reference, represent the entire Agreement of the parties with respect to the
subject matter of this Agreement.
B. This written Agreement shall supersede any and all prior agreements, oral or written,
regarding the subject matter between the CONTRACTOR and the CITY.
C. No other agreement, promise or statement, written or oral, relating to the subject
matter of this Agreement, shall be valid or binding, except by way of a written amendment to this
Agreement.
D. The terms and conditions of this Agreement shall not be altered or modified except
by a written amendment to this Agreement signed by the CONTRACTOR and the CITY.
E. If any conflicts arise between the terms and conditions of this Agreement, and the
terms and conditions of the attached exhibits or the documents expressly incorporated by reference,
the terms and conditions of this Agreement shall control.
18. SET-OFF AGAINST DEBTS.
CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR
under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance,
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agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or
other amounts.
19. WAIVERS.
The waiver by either party of any breach or violation of any term, covenant or condition of
this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any
other tern, covenant, condition, ordinance, law or regulation, or of any subsequent breach or � iolation
of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent
acceptance by either party of any fee, perfonnance, or other consideration which may become due or
owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation
by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance
or regulation.
20. COs I S AND ATI URNEY'S FEES.
The prevailing party in any action brought to enforce the terms and conditions of this
Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs
(including claims administration) and attorney's fees expended in connection with such action.
21. CITY lVJSfNF.SS LICE'NSI: /OTHER TAXFS.
CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY
business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay an), and
all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any
work perfonncd under this Agreement, until CONTRACTOR has provided CITY with a completed
Internal Revenue Service form W-9 (Request for Taxpaver Identification Number and Certification).
22. SURVIVAL OF TERMS.
Any terms of this Agreement that by their nature extend beyond the tern (or termination) of
this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective
Successors and assigns.
23. APPLICABLE LAW-
[he laws of the State of California shall govern this Agreement.
24. COUNTERPARTS AND ELECTRONIC SIGNATURE -
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one document. Counterpart signature
pages may be delivered by telecopier, email or other means of electronic transmission.
25. EX1liBITS.
The following exhibits are attached to this Agreement.
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Exhibit A: Contractor Scope of Work
Exhibit B: List of BMR developments
development.
in CITY and number of BMR units in each
IN WITNESS WHEREOF, the Housing Authority of the County of Marin and the City
of San Rafael, have executed this Agreement as of the date first written above. The undersigned
represent and warrant that he/ she has full power and authority to enter into this Agreement and to
bind each other in accordance with its terms.
FOR THE CITY OF SAN RAFAEL-
Jim Scl u[1,1Cit1 Mil ger
ATTEST r
Lindsay Lara, City Clerk
APPROVED AS TO FORM:
l� Robert Epstein, City Am ;ney
FOR THE HOUSING AUTHORITY OF THE COUNTY OF MARIN:
DocuSigned by:
B85F7B.t7Is.:E4Fc
Lewis Jordan, Executive Director
DATE 7/27/2020
===END OF AGREEMENT==================
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EXHIBIT A
PROGRAM MANAGEMENT SERVICES
The Housing Authority of the County of Marin ("Authority") shall provide the following
services to the City of San Rafael ("City"):
1. INITIAL SALE OF BMR UNITS
A. PRE -SALE SERVICE -:S
i. Meet with City and prospective developers to discuss (1) City's inclusionary
housing requirements; (2) how those requirements can be satisfied through the
BMR Program; and (3) how to determine a specific "affordable" sales price to be
applied to a general income level target.
ii. Assist City staff in developing the Conditions of Approval for projects with
affordable units.
iii. Fstablish the initial for -sale BMR Unit pricing information for the Affbrdable
Housing Agreement pursuant to the conditions of approval and/or the affordability
requirements established by City.
iv. Prepare and execute the three -party Affordable 1-fousing Agreement among
Authority, City, and a developer/contractor, implementing the City's aFfordable
housing requirements contained in the conditions of approval. "I he Affordable
Horsing Agreemew shall include a description orthe affordable units including
number of bedrooms, the affordability levels and initial sales prices, the buyer
selection criteria, and the procedures for the purchase of the unit by eligible
households. The Authority shall work with the City to obtain the required
signatures on the Agreement.
The Authority shall effectuate the recordation of the Affordable Housing Agreement
on the subject property and provide proof of such recording to the City. The
Authority shall be paid by the Developer for the services contained in this Section
A. (iv).
B. SALE AND RF -SALE SERVICES
Provide up to date information on the BMR program requirements, income limits,
and applications on the Marin Housing Authority website.
ii Advertise the BMR Program and BMR units when appropriate and through
methods deemed appropriate by the Authority, such as e-mail blasts, the Authority
website and/or BMR database, and/or mailers to community service providers,
and/or lenders.
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iii. Manage applicants for BMR unit ownership by
1. Determining applicant eligibility pursuant to criteria established in cooperation
with City.
2. Operating a computer-generated lottery system to establish a numerical list of
eligible households for the available BMR unit. This numerical list is used to
establish the priority order of the potential buyers.
3. Preparing and mailing notices for house tours to the topmost households from
the numerical lottery list.
4. Verifying applicants' attendance at the open house and established interest in
the available BMR unit. Removing households that are not interested in the
available BMR unit from the numerical list.
5. Working with lenders on pre -approvals for topmost households on the list of
eligible and interested buyers.
iv. Maintain an up to date list of approved mortgage providers on the Marin Housing
Authority website. Provide lender training. BMR program documents and
requirements to lending institution's underwriting department, and address
questions from underwriters.
V. Engage licensed real estate broker/agents to list, market, and complete the purchase
and sale of BMR units in accordance with industry standards, while following the
BMR Program requirements.
vi. Subject to availability, provide assistance to BMR unit buyers with obtaining down
payment assistance. Assistance programs may include, Calliome and other
programs available to eligible buyers within the City.
vii. Utilize the most current versions of the following documents and obtain all
necessary signatures thereon, in connection with all BMR unit conveyances during
the term of this Agreement:
1. Resale and Refinancing Restriction Agreement and Option to Purchase
2. Buyer's Disclosure .Statement Marin County Below Market Rate Home
Ownership Program
3. Authority Deed of Trust and Security Agreement securing the Resale and
Refinancing Restriction Agreement and Option to Purchase
viii. Record or cause to be recorded, as appropriate, the Resale and Refinancing
Restriction Agreement and Option to Purchase, the Authority Deed of Trust and
Security Agreement Securing the Resale and Refinance Restriction Agreement, and
a Request fur Copy of Default Notice as appropriate.
ix. Calculate resale price evaluations for existing BMR units for purposes of resale or
refinance.
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Provide ongoing assistance to BMR owners with issues such as capital
improvements, special assessments, etc.
xi. Process requests from BMR owners to address life changes such as adding or
removing parties from title, inheritance issues, etc.
xii. When a BMR unit owner notifies Authority of owner's intention to sell their unit;
request from such owner information regarding repairs or upgrades completed to
that owner's BMR unit, conduct an inspection of the unit to assess the work that
will be required to resell the unit to another first time homebuyer and, if appropriate,
adjust the sales price for such owner's BMR unit.
xiii. Up to 4 % of the total sales price of each BMR unit will be payable to a broker
/agent and to the Authority ("brokerage fee"). The precise distribution of the
brokerage fee will be dependent on whether there is dual representation of the B:.MR
unit buyer and seller by an agent /broker. When a buyer is found from among the
list of existing BMR applicants in the lottery drawn by the Authority, the Authority
shall retain I% of the brokerage fee.
H. SALE AND RESALE OF EXISTING BMR UNITS
A. BELOW MARKET VALUE RESALE
When a BMR unit owner wishes to sell their BMR unit, City may elect to retain such BMR
unit within the BMR Program but to increase the sales price of such BMR unit for the
subsequent purchaser of that BMR unit provided the increased sales price remains affordable
to the unit's designated income level.
If the City desires to increase the resale price of a BMR unit pursuant to the immediately
foregoing sentence, City must provide written notice to Authority within 10 days of receiving
notice from Authority that a BMR unit will become available for resale.
Up to 4 % of the total sales price of each BMR unit will be payable to a broker/agent and to
the Authority ('brokerage fee"). The precise distribution of the brokerage fee will be
dependent on whether there is dual representation of the BMR unit buyer and seller by an agent
/ broker. When a buyer is found from among the list of existing BMR applicants in the lottery
drawn by the Authority, the Authority shall retain 1% of the brokerage fee.
B. MARKET VALUE SALE
City may elect to release a BMR unit from the BMR Program and its affordability and resale
restrictions by directing the Authority in writing to resell a BMR unit at its market value
("Market Value Sale"). If City desires for a Market Value Sale to occur, City must provide
written notice to Authority within 10 days of receiving notice from Authority that a BMR
unit will become available for sale.
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C. PROCEEDS FROM MARKET VALUE SALE
After Authority's consummation of a sale pursuant to Section 11(A) and 11 (B) above,
Authority shall retain the difference between the actual sale price of the BMR unit subject
to such sale, less (1) brokerage fees and all reasonable and customary closing fees, (2)
satisfaction of all valid liens that the BMR unit is subject to if such lien(s) were permitted by
relevant agreements with Authority and/or City governing such BMR unit, (3) such amount
as BMR unit owner is entitled to receive at the close of a sale of their BMR unit pursuant to
such owner's recorded resale restriction agreement(s) with Authority and/or City that govern
the sale of their BMR unit, and (4) any funds that City owes to Authority pursuant to this
Agreement.
Funds remaining after satisfaction of Section [[. (C) above shall be maintained in an account
for the benefit of the City ("City Account").
[Il. ADMINISTRATIVE SERVICES
A. BMR PROGRAM MONITORING SERVICES
Authority shall perform annual monitoring of no less than one-third of
City's existing BMR units to attempt to verify compliance with the Resale
Restrictions Agreement such as continuing owner occupancy, no subleasing, no
refinancing without approval, no over -encumbrances etc.
Ii. Authority shall provide annual status reports to City on BMR sales activity,
refinancing activity, monitoring results, and other related information that is
reasonably requested by the City (e.g., current afi'ordability levels, issues, and
concerns, etc.).
B. INFORMATION AND EDUCATION
Upon request, Authority shall provide City, BMR Program participants and lenders
with information concerning procedures and/or restrictions regarding BMR unit
conveyance refinancing, and determination of affordability levels and capital
improvements.
Authority shall provide, or cause to be provided, HUD approved first time
homebuyers' education. The [-IUD approved curriculum includes budgeting,
financial preparedness, credit, qualifying for a loan, loan types and terms,
refinancing, fair housing laws, and homeowners' associations.
in. Authority shall provide Median Household Income information to City and
prospective developers, and provide relevant information concerning Income
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Limits and Median Income, the relationship between those factors, and how those
factors typically are used to determine affordability.
C. AUTHORITY'S MANAGEMENT OF CITY ACCOUNT
Upon approval by the City, this account may be used by the Authority for the benefit of the
City BMR program including, but not limited to; the payment of legal fees, the acquisition of
13MR units, payment of the Authority's annual tee, reduction in affordability levels of BMR
units, and/or capital improvements to BMR units prior to resale.
IV. OPTION EVENTS AND OTHER LEGAL DISPUTES
A. ENFORCEMENT SERVICES BY AUTHORITY STAFF FOR OPTION EVENTS
Should the Authority identify BMR Program violations by any BMR unit owners ("Option
Events'), the Authority shall promptly notify the City and, upon City's request. the Authority
shall contact such BMR unit owner and demand correction of their violation(s). The
Authority, with consent of the City, will attempt to enforce the BMR Resale Restrictions
Agreement to secure and preserve the BMR unit for the City and enforce compliance with
the BMR Program, or as otherwise directed by the City with respect to each such BMR unit.
The services performed by Authority pursuant to this sub -section IV(A) shall be referred to
as "Enforcement Services."
B. FEE "I O AUTHORITY FOR t:NFORCE IENf SERVICES
Enforcement Services will be provided on a case-by-case basis only upon City's written
consent pursuant to sub -section IV(A), immediately above. Enforcement Services will be
provided by an employee of the Authority, and the Authority will charge City $95 per hour if
the Enforcement Services are performed by a non-attomey and $145 per hour if the
Enforcement Services are performed by an employee of the Authority that is an attorney.
Charges for Enforcement Services will be at'/4 hour increments, at a maximum limit of $1,900
per BMR unit. The Authority will submit detailed monthly billings to City reflecting the
Enforcement Services performed. Payment is due on all billings net 30 days from the date City
receives the invoice. No fees shall be billed to City in excess of the above maximum without
City's prior written approval. Compensation ['or Enforcement Services will be in addition to
the compensation provided to Authority under other provisions of this Agreement.
C. LF;GAL SERVICES IN Tl W EVENT OF BMR DEFAULT OPTION EVENTS.
BMR units may be subject to legal disputes and retaining outside legal counsel to perform
services relating to certain BMR units may become appropriate (with respect to each such
BMR unit, a "Dispute"). The Authority will notify City within a reasonable period of time
within which Authority teams of a Dispute. In the event Authority notifies City of a Dispute.
the Authority may, with City's prior written consent, retain outside legal counsel of Authority's
choosing to represent the Authority with respect to each Dispute. The Authority- will manage
and provide instruction to outside legal counsel, keep City reasonably informed and forward
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legal counsel's advice to City concerning each Dispute. Any time expended by Authority
employees regarding a Dispute shall also constitute Enforcement Services and will be billed
pursuant to Section IV(B), above.
D. FEE TO AUTHORITY TO REIMBURSE 3RD PARTY LEGAL SERVICES.
The Authority will provide Enforcement Services with respect to each Dispute until the
Dispute is resolved. Upon attorneys' fees and costs incurred for a Dispute reaching $5,000 (to
be billed on an hourly basis pursuant to standard industry practices, with detailed billings to be
provided to City), the City will be briefed on the recommended course of action provided by
legal counsel and the City shall provide general direction to Authority with respect to each
Dispute.
E. EXERCISE OF OPTION TO PURCHASE PURSUANT TO RESALE: RESTRICTION
AGREEMENT
Notice of Option
In the event the Authority identities an Option Event, and option to purchase a BMR
Unit may be exercised, the Authority shall:
Notify City in writing within five (5) working days of Authority learning that an option
to purchase may be exercised with respect to a BMR unit (the "Notice").
The Notice shall include the option -triggering event, the anticipated resale price, and
any other information that may be available to Authority that will assist City in deciding
on a course of action.
Within ten (10) working days of receipt of the Notice, City shall provide written
instructions to the Authority directing the Authority to (1) exercise the Option, (2) assign
to City the right to exercise the Option to purchase the BMR unit with City assuming
responsibility to enforce the Resale Restriction Agreement and Deed of Trust (Ind
Security Agreement, or (3) file a Notice of -Abandonment.
ii. Exercise of Option
If the City requests that the Authority exercise the Option, the Authority shall:
Utilize funds provided by the City; or
Utilize Authority's line of credit if Authority determines it would not interfere with
Authority's operations. The Authority shall be reimbursed by City such amount that
Authority contributes toward the exercise of an option. This reimbursement shall occur
immediately upon re -sale of the BMR unit subject to such option or 90 days from the
Authority's exercise of the Option, whichever occurs earlier.
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