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HomeMy WebLinkAboutED 1867 Lincoln BMRa�rr oF�� Agenda Item No: 3. c Meeting Date: June 17, 2013 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Economic Development Prepared by: Stephanie Lovette,� Economic Development Manager City Manager Approval-�l Gtitla& SUBJECT: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE MAYOR TO SIGN BELOW MARKET RATE HOUSING AGREEMENT FOR 1867 LINCOLN AVENUE RECOMMENDATION: Adopt Resolution authorizing the Mayor and the City Clerk to execute a Below Market Rate Agreement for 1867 Lincoln Avenue. BACKGROUND: Chapter 14.16.030 of the City of San Rafael Zoning Ordinance requires that all new development contribute to the City's affordable housing stock. San Rafael General Plan Policy H-21 requires any units created pursuant to the City affordable housing requirements remain affordable for a minimum of 40 years. The affordable housing requirement applies to both rental and ownership developments. Economic Development staff manages the Below Market Rate ("BMR") program. 1867 Lincoln Avenue has been approved for sixteen units, including two BMR units. The base density for the site is twelve units and the project received a density bonus of four units pursuant to San Rafael Municipal Code 14.16.030 and California Government Code Section 65915. The density bonus was allowed in exchange for providing two affordable units on site. ANALYSIS: The affordable housing requirement was for two units. Staff is recommending that one unit be affordable to very low households earning no more than 50% of the county median income and one unit be affordable to low income households earning no more than 70% of the county median income. The development received a tentative map to be sub -divided into condos. The developer intends to initially rent units for a period of at least ten years. The BMR agreement will cover the requirements and restrictions for both the rental and the ownership scenarios. The projected rent levels for the two-bedroom units would be approximately $1,095 per month and the low income unit would be approximately $1,558 per month. File No.: `7 Council Meeting: FOR CITY CLERK ONLY Disposition: QG'so,_Uily .i ia5L, ;� CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLUTION NO. 13547 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE MAYOR TO SIGN A BELOW MARKET RATE HOUSING AGREEMENT FOR 1867 LINCOLN AVENUE WHEREAS, on August 12, 2008 the San Rafael Planning Commission approved a Tentative Map (TS07-002) for a previously approved but not yet built 16 -unit housing development located on a vacant lot at 1867 Lincoln (APN 011-023-02), and WHEREAS, the base density for the site is twelve units and the project received a density bonus of four units pursuant to San Rafael Municipal Code 14.16.030 and California Government Code Section 65915 in exchange for providing two affordable units on site; and WHEREAS, the City and the developer desire to enter into a Below Market Rate Housing Agreement and establish the affordability levels for the two units; and WI IEREAS, the developer has agreed to provide one unit affordable to a very low income household at 50% of County median income and one unit affordable to a low income household at 70% of County median income. NOW THEREFORE BE IT RESOLVED THAT the Mayor and the City Clerk are authorized to execute, on behalf of the City of San Rafael, a the Below Market Rate Housing Agreement for the property located at 1867 Lincoln Avenue in San Rafael in a form to be approved by the City Attorney. I, Esther C. Beirne, City Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council held on the seventeenth day of June 2013, by the following vote, to wit: AYES: COUNCILMEMBERS: Colin, Connolly, Heller, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None "":—SSttZZ,e c - za?"q� . ESTHER C. BEIRNE, City Clerk lIa V I. E' 01 4--0IQIQ Saa7 REC FEE 0.80 a Page 1 of 16 (. p CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS PROJECT NAME: 1867 LINCOLN Date: F66 S, ')-Ol q ADDRESS: 1867 Lincoln Avenue San Rafael, CA 94901 OWNER: Cotton SR, LLC, H. J. Schafer, Authorized Signatory THIS BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (hereinafter the "BMR Rental Agreement") is made and entered this 5 , 2014, between the CITY OF SAN RAFAEL, a municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"), and Cotton SR, a California Limited Liability Corporation (the "Owner") collectively the "Parties," with reference to the following: A. The Owner is the owner of that certain real property located at 1867 Lincoln Avenue and situated within the corporate limits of the City, which real property is more particularly described in Exhibit "A" attached hereto (the "Property"). The Owner proposes to develop the Property with a new sixteen unit residential project (the "Project"). A tentative parcel map for the Project was approved by the San Rafael Planning Commission on August 12, 2008 (TS07-002). B. On r-4en_u,:rz31 3the City of San Rafael received a notarized letter from the owner stating' the owner's intention to abandon the tentative parcel map. C. The City has adopted Affordable Housing Requirements in accordance with the provisions of the Housing Element of its General Plan and Zoning Ordinance Section 14.16.030 of the San Rafael Municipal Code (the "Affordable Housing Requirements"). Pursuant to the Affordable Housing Ordinance, the Project is required to provide two affordable units. D. The Owner proposes to fulfill the requirements Section 14.16.030 of the San Rafael Zoning Ordinance by providing two Affordable Units, each containing two bedrooms. E. The Owner desires to rent the Affordable Units at an Affordable Rent. 1 11a Recorded Official Records RECORDING REQUESTED By and County of Marin WHEN RECORDED MAIL TO: RICHARD N. BENSON Esther Beirne, City Clerk Rs Coauntyunty-Recorder Clerk PO Box 151560 11:43AN 06 -Mar -20014 San Rafael, CA 94915-1560 No fee for recording pursuant to Government Code Section 27383 REC FEE 0.80 a Page 1 of 16 (. p CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS PROJECT NAME: 1867 LINCOLN Date: F66 S, ')-Ol q ADDRESS: 1867 Lincoln Avenue San Rafael, CA 94901 OWNER: Cotton SR, LLC, H. J. Schafer, Authorized Signatory THIS BELOW MARKET RATE RENTAL AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (hereinafter the "BMR Rental Agreement") is made and entered this 5 , 2014, between the CITY OF SAN RAFAEL, a municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"), and Cotton SR, a California Limited Liability Corporation (the "Owner") collectively the "Parties," with reference to the following: A. The Owner is the owner of that certain real property located at 1867 Lincoln Avenue and situated within the corporate limits of the City, which real property is more particularly described in Exhibit "A" attached hereto (the "Property"). The Owner proposes to develop the Property with a new sixteen unit residential project (the "Project"). A tentative parcel map for the Project was approved by the San Rafael Planning Commission on August 12, 2008 (TS07-002). B. On r-4en_u,:rz31 3the City of San Rafael received a notarized letter from the owner stating' the owner's intention to abandon the tentative parcel map. C. The City has adopted Affordable Housing Requirements in accordance with the provisions of the Housing Element of its General Plan and Zoning Ordinance Section 14.16.030 of the San Rafael Municipal Code (the "Affordable Housing Requirements"). Pursuant to the Affordable Housing Ordinance, the Project is required to provide two affordable units. D. The Owner proposes to fulfill the requirements Section 14.16.030 of the San Rafael Zoning Ordinance by providing two Affordable Units, each containing two bedrooms. E. The Owner desires to rent the Affordable Units at an Affordable Rent. 1 11a NOW THEREFORE, it is hereby agreed by and between the Parties hereto as follows: AGREEMENT The foregoing recitals are hereby incorporated by reference and made part of this Agreement. Section 1. Definitions. In addition to those terms defined in the Recitals and elsewhere in this Agreement, the following terms are specifically defined for the purposes of this Agreement: a) "Affordable Rent" means total monthly housing expenses paid out-of-pocket by the Tenant and independent of any subsidy or assistance received by the Tenant of an Affordable Unit as calculated by the City of San Rafael for use and occupancy of an Affordable Unit and for land and associated facilities, including one parking space and reduced by a reasonable allowance for utilities. The utility allowance calculation shall be based on a schedule for attached units provided by Marin Housing Authority for gas home heating, gas home cooking and basic electricity. Affordable Rent for Very Low Income Households, is equal to or less than one -twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Median Income, as adjusted for Assumed Household Size Affordable Rent for Low Income Households, is equal to or less than one -twelfth (1/12) of thirty percent (30%) of seventy percent (70%) of Area Median Income, as adjusted for Assumed Household Size. The initial Affordable Rent is shown in Exhibit "B" attached hereto. b) Affordable Units means two rental units to be provided on site that are reserved for occupancy by Very Low and Low Income Households at an Affordable Rent described in Exhibit "B". c) "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. d) "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. e) "Low Income Affordable Unit" means an Affordable Unit reserved for occupancy by Low Income Households at an Affordable Rent described in Exhibit "B". f) "Low Income Household" means a household whose 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 2 Development. g) "Market Rate Units" are the remaining 14 Units in the Project that are not Affordable Units. h) "Moderate Income Household" means a household whose income does not exceed the moderate income limits applicable to Marin County, adjusted for household size, as published annually by the California Department of Housing and Community Development. i) "Tenant" means a household occupying a Unit, j) "Term" means a period of fifty-five (55) years commencing on the date of recordation of this Agreement. k) "Units" means, collectively, the Affordable Units and Market Rate Units, 1) Very Low Income Affordable Unit" means an Affordable Unit reserved for occupancy by Low Income Households at an Affordable Rent described in Exhibit "B". m) "Very Low Income Household" means a household whose 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. Section 2. Occupancv Requirements and Allowable Rent. a. Low Income Units, Subject to the provisions of Section 3 below, one (1) Affordable Units shall be rented to and occupied by or, if vacant, available for occupancy by Low Income Households at an Affordable Rent. b. Very Low Income Units. Subject to the provisions of Section 3 below, one (1) Affordable Units shall be rented to and occupied by or, if vacant, available for occupancy by Low Income Households at an Affordable Rent, c. Section 8 Tenants. Owner may accept as Tenants of the Affordable Units households 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 its successor. d. Rent Increases. Increases to the Affordable Rent shall be based on the increases in the Area Median Income, and shall not be less than the baseline rents established in this Agreement. Such rent may not be increased more often than once every twelve (12) months. Owner shall provide each Tenant of an Affordable Unit with at least sixty (60) days' written notice of any increase in the Affordable Rent. K3 e. Bedroom Distribution. The Affordable Units shall include the number of bedrooms and square footage indicated in Exhibit "B" attached hereto. Section 3. Increased Income of Tenants of Affordable Units a) Non-Qualifvinq Household. If, upon recertification of a Tenant's income, the Owner determines that a Tenant has an income exceeding one hundred twenty percent (120%) of Median Income for the assumed household size, then, upon expiration of the Tenant's lease and after sixty (60) days written notice to Tenant, the Owner may, at Owner's sole discretion; (i) increase the Tenant's rent to market -rate rents; or (ii) relocate such Tenant to any other Unit, if available, and charge such Tenant market -rate rents; or (iii) terminate such Tenant's occupancy; provided, however, that if any such Tenant fails or refuses to vacate the applicable Unit notwithstanding the termination of its occupancy pursuant to the preceding clause (iii), then provided Owner is engaged in good faith efforts to evict such Tenant, the inability or failure of Owner to maintain the number of Affordable Units required under this Agreement as a result of or relating to such Tenant's failure or refusal to vacate shall be deemed not to be in breach of this Agreement. If Owner elects to increase rent pursuant to clause (i) of the preceding sentence, then the Owner shall rent the next available Unit in the Project to a Very Low Income Household or Low Income Household, as applicable, at Affordable Rent. Notwithstanding the foregoing, this Section 3.a. shall not be interpreted to require Owner to rent or continue to rent an Affordable Unit or a Market -Rate Unit to a non -qualifying household, Section 4. Tenant Selection and Marketinq a) Prohibition on Discrimination in Tenant Selection. The Owner shall not discriminate against applicants on the basis of source of income or rent payment (for example, AFDC or Section 8), and the Owner shall consider a prospective tenant's satisfactory credit history and previous satisfactory rent history of at least one (1) year as sufficient evidence of the ability to pay the applicable Affordable Rent on a timely basis when due. The Owner shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective Tenants, nor shall the Owner apply or permit the application of management policies or lease provisions with respect to the Affordable Units which have the effect of precluding occupancy of Affordable Units by such prospective Tenants. b) Security Deposits. The Owner shall not require security deposits on the Affordable Units in excess of one (1) month's Affordable Rent for such Units, and shall not require for such Units any other deposits, including (without limitation) key deposits, cleaning deposits, or final month rent deposits. Affordable Units with pets may be charged a pet deposit. The pet deposit charged to Affordable Units may not exceed the pet deposit charged to Market Rate Units. c) Lease Provisions. Owner shall include in leases for all Affordable Units provisions which authorize Owner to immediately terminate the tenancy of any household one or more of whose members misrepresented any fact material to the household's qualification as a Very Low or Low Income Household. Each lease or rental agreement shall also provide that the household is subject to annual certification in accordance with Section 5 below, and that, if the household's income increases above the applicable limits for a Very Low Income or Low Income Household, such household's rent may be subject to increase. 4 Section 5. Income Certification and Rer)ortinq. a) Tenant Income Certification. The Owner shall obtain, complete, and maintain on file income certifications from Tenants residing in the Affordable Unit(s) dated no more than thirty (30) days prior to initial occuppncy and annually thereafter. The Owner shall make a good faith effort to verify that the income reported by an applicant is accurate by obtaining two (2) or more of the following as a part of the verification process: (1) obtain a minimum of the two (3) most current pay stubs for all adults age eighteen (18) or older; (2) obtain an income tax return for the most recent tax year; (3) conduct a credit agency or similar search; (4) obtain the two (3) most current savings and checking account bank statements; (5) obtain an income verification form from the applicant's current employer; (6) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (7) if the applicant is unemployed and has no tax return, obtain another form of independent verification. If an occupant of a Unit fails for any reason to provide information requested by the Owner for the annual certification, then the Owner shall immediately terminate such household's tenancy in a manner consistent with applicable laws. The Owner shall obtain an Occupant Income Certification (Exhibit "C"), or a similar form as may be approved by the City, from the occupants of each Affordable Unit and maintain that form on file. b) Annual Report to the Citv. Owner shall submit to the City (a) not later than the forty-fifth (45t) day after the close of each calendar year, or such other date as may be requested by the City, a statistical report, that shall include the rent, income, and household size of each Tenant occupying an Affordable Unit. The report shall also state the date the .tenancy commenced for each Affordable Unit and such other information as the City may be required by law to obtain. 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 is to be submitted by the Owner to the City quarterly until the Affordable Units are occupied and annually thereafter for the Term. c) Additional Information. Owner shall provide any additional information reasonably requested by the City pertaining to matters which are the subject of this Agreement. The City shall have the right to examine and make copies of all books, records or other documents of Owner which pertain to any Affordable Unit. d) Records. The Owner shall maintain complete, accurate, and current records pertaining to the Affordable Units for five (5) years after creating such records, and shall permit any duly authorized representative of the City to inspect and copy such records, including the records pertaining to income and household size of the households occupying the Affordable Units. e) On-site Inspection. The City shall have the right to perform an on-site inspection F'1 of the Affordable Units at least one (1) time per year provided that the City provides reasonable notice of such inspection. The Owner agrees to cooperate in such inspection. Section 6. Monitorinq Fee, The Owner agrees to pay to the City during the Term an annual monitoring fee payable on or before July 1 of each year, which shall be calculated at the rate of $50.00 for each Affordable Unit per year. If the actual expenses of the City in monitoring compliance by the Owner with provisions of this Agreement are in excess of $800.00 in any one-year period, the Owner upon written demand shall pay such actual excess costs in an amount not to exceed 5% increase per year. Section 7. Agreement to Limitation on Rents. a) The City and the Owner acknowledge that the Project is mapped as an ownership project but that Owner desires to rent the Affordable Units and to comply with the Affordable Housing Requirements by provision of the Affordable Units on the Property as provided for herein. The City and the Owner agree that such compliance is consistent with the Affordable Housing Requirements and will not' constitute a violation of the Costa -Hawkins Act, The Owner further agrees that the terms of this Agreement are fully enforceable and are compliant with all Federal, State, and City laws and ordinances. The Owner shall further comply with the Affordable Housing Requirements as required herein if and when individual Affordable Units are offered for sale. Section 8. Term. The provisions of this Agreement shall apply to the Property for the entire Term. This Agreement shall bind any successor, heir or assign of Owner, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the City. Section 9, Covenants Runninq with the Land. The City and Owner hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the Term of this Agreement said covenants and restrictions shall expire. 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, unless the City expressly releases such conveyed portion of the Property from the requirements of this Agreement. Until the Property is released from the burdens of this Agreement, the owners of fee title to the Property shall expressly make the conditions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in the Property. Section 10. Default and Remedies. Failure of the Owner to cure any default in the Owner's obligations under the terms of this Agreement within thirty (30) days after the D delivery of a written notice of default from the City (or such longer period of time up to an additional one hundred twenty (120) days as may be necessary to remedy such default, provided that the Owner has commenced action during the thirty (30) days necessary to remedy such default, and the Owner is proceeding with reasonable diligence to remedy such default) will constitute a default under this Agreement and the Affordable Housing Requirements, and, in addition to any other remedy authorized by law or equity for breach of this Agreement the City may exercise any and all remedies available to it with respect to the Owner's failure to satisfy the terms of this Agreement and the Affordable Housing Requirements, including but not limited to: a) exercising any remedies available under the Subdivision Map Act, the Affordable Housing Requirements, the City's Municipal Code, or otherwise, with respect to the Owner's failure to satisfy the terms of this Agreement and the Affordable Housing Requirements; b) instituting against the Owner, 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 funds received in connection with such a violation; c) where one or more persons have received a financial benefit as a result of violation of this Agreement or of any requirement imposed under the Affordable Housing Requirements, assessing, and 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) Action to Compel Performance or for Damages. The City may bring an action at law or in equity to compel Owner's performance of its obligations under this Agreement, and/or for damages; e) Excess Rent. In the event the Owner leases any Affordable Unit at a rent that exceeds the Affordable Rent in violation of this Agreement, the Owner shall immediately, upon notice from the City, rent the Unit at the Affordable Rent in accordance with Exhibit "B" of this Agreement and pay: (i) to the occupant or former occupant of the Affordable Unit, an amount equal to the difference between the amount the Owner actually received for the Unit leased in violation of this Agreement and the amount the Owner would have received pursuant to Exhibit "B" of this Agreement for the term of the violation; and (ii) to the City, as liquidated damages, an amount equal to two times the difference between the amount the Owner actually received for the Unit leased in violation of this Agreement and the amount the Owner would have received pursuant to Exhibit "B" of this Agreement for the term of the violation. The Parties agree that this formula for establishing liquidated damages is reasonable considering all the circumstances existing on the date of this Agreement, including (a) the range of harm that would result to the City and its housing program from violation of this Agreement by the Owner, and (b) the anticipation that proof of the actual damages would be costly 7 and inconvenient. In the event the Tenant cannot be located within a reasonable time the Owner shall pay to the City the total amount due to the former occupant. Section 11. Remedies Cumulative. No right, power, or remedy given to the City by the terms of this Agreement or the Affordable Housing Requirements 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 any such document, the Affordable Housing Requirements, or any statute or otherwise against Owner and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by Marin Housing Authority or the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. Section 12, Attornevs Fees and Costs. If the City or the Owner is required to initiate legal proceedings to enforce its rights under this Agreement, the prevailing party in such action shall be entitled to an award of reasonable attorneys' fees and costs in addition to any other recovery under this Agreement. Section 13. Hold Harmless and Indemnification. Except for an award of attorneys fee and any other recovery to Owner pursuant to Section 13 Owner will indemnify and hold harmless the City 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 Project, the Affordable Units, or Owner 's performance or non-performance under this Agreement, including without limitation the construction or sale of any Unit in the Project, and shall protect and defend Indemnitees, and any of them with respect thereto, except to the extent arising from the gross negligence or willful misconduct of the City. The provisions of this Section 14 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 14 shall remain in full force and effect. Owner's damages in no case shall exceed its rights to and value of the property subject to this agreement. Section 14, Notice. 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, or by express courier service, to the party to receive such notice at the addresses set forth below: TO THE CITY: City of San Rafael Attn: Economic Development Department P.O. Box 151560 San Rafael, CA 94915-1560 TO THE OWNER: Cotton SR, a California Limited Liability Corporation Atten: H. James Schafer 3 Elm Avenue Kentfield, CA 94904 Any party may change its address for purpose of notice by giving notice pursuant to this section. 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. Section 15, Intearated Aareement. This Agreement constitutes the entire Agreement between the parties and no modification shall be binding unless reduced to writing and signed by the Parties. Section 16. Amendment of Aareement. This Agreement shall remain in effect for the Term. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of the City and Owner. Section 17. No Joint Venture or Partnership. Nothing contained in this Agreement or any document executed pursuant to this Agreement shall be construed as creating a joint venture or partnership between City and Owner. Nothing contained in this Agreement shall create or justify any claim against the City by any person that Owner may have employed or with whom Owner 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 Project. Section 18. 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. Section 19. Waivers. Any waiver by the City 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 to take action on any breach or default of Owner or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Owner 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 to any act or omission by Owner shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City's written consent to future waivers. Section 20. Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions. Section 21, 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. Section 22. 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, or if any provision of this Agreement is rendered invalid or unenforceable pursuant to any California statute which became effective after the effective date of this Agreement, the remaining portions of this Agreement shall nevertheless remain in full force and effect. Section 23. Exhibits. The following exhibits are attached to this Agreement: Exhibit A Legal Description of the Property Exhibit B Calculation of Affordable Rent Exhibit C Occupant Income Certification Exhibit D Certificate of Continuing Compliance IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. (Signatures on next page) 9 ATTEST: .. 9z Esth6r 8eirne. 6ty 616%,'. CITY OF SAN RAFAEL By: M Gary O. Phillips Mayor OWNER Cotton SR, a California Limited Liability Co oration B i H. s 'chafer Aut ' rized Signatory 10 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGEMENT State of California County of VIVI(t.V, vL On 5" —AD 1 �#_ before me, _ .I. Rochelle Karter, Notary Public, personally appeared H . Ta v✓ti es 5 e -_h c4 e_ti 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 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. SignatuL&- �� .� J. ROCHELLE KARTER COM i, 2043257 ROTARY i, 2P4325 N MARIN COUNTY MY COPY. Exp. OCT. 26, 2017 k (Seal) (Optional) Description of Attached Document: Title or Type of Document ,UI) Document Date Number of Pages Signer(s) other than names above ACKNOWLEDGMENT State of California County of Marin ) On -45W6.44Y 18•1 �20(4 before me, E. Beirne, Notary Public (insert name and title of the officer) personally appeared G D 84141-1 PS who proved to me on the basis of satisfactory evidence to be the persons) whose name(s),,s/ re subscribed to the within instrument and acknowledged to m e thatdioVshe/they executed the same in t@/her/their authorized capacity(ies), and that bytVher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the pens on(s) acted; executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. i , ^_ - ,. ,.: ^ , , ^_ .'_ l P rE. BEIRNE D 0 I 1n '' COMM. U1936401 WITNESS my hand and official seal. Q �¢% NOTARY PUBUC•CALIFORNIA MARINCOMY 0 My Comm. EXP1195 Juno 10, 2016 Y 4 Signature Z"�e- (Seal) Exhibit "A" Legal Description Real property in the City of San Rafael, County of Marin, State of California, described as follows: PARCEL ONE: LOTS 50, 51, 53 AND 54, AS SHOWN UPON THAT CERTAIN MAP ENTITLED "MAP OF CHULA VISTA TERRACE, SAN RAFAEL, CAL.", FILED FOR RECORD AUGUST 1, 1912 IN VOLUME 4 OF MAPS, AT PAGE 27, MARIN COUNTY RECORDS. PARCEL TWO: A STRIP OF LAND 1 FOOT WIDE LYING NORTHWESTERLY OF AND ADJACENT TO THE SOUTHEASTERLY LINE OF LOT 52, AS SHOWN UPON THAT CERTAIN MAP ENTITLED, "CHULA VISTA TERRACE, SAN RAFAEL, CAL.", FILED FOR RECORD AUGUST 1, 1912 IN VOLUME 4 OF MAPS, AT PAGE 27, MARIN COUNTY RECORDS. APN: 011-023-02 EXHIBIT "B" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT Project Name: Cotton Apartments Date: Address: 1867 Lincoln Owner: Cotton SR LLC TOTAL NUMBER OF UNITS: 16 TOTAL NUMBER OF LOW INCOME UNITS: 2 ANNUAL MONITORING FEE: $100.00 AFFORDABLE HOUSING EXPENSE CALCULATION: Housing expense includes most recent utility allowance per schedule from Marin Housing (basic electricity allowance plus cooking). For example, using the 2014 Median Gross Income for the Area. Such calculation would be as follows: Very Low Income Units: The two bedroom unit Housing Expense shall not exceed 1/12 of 30% of 50% of the median gross annual income for a 3 person household. The maximum qualifying tenant income is 80% of median. Low Income Units: The two bedroom unit Housing Expense shall not exceed 1/12 of 30% of 70% of the median gross annual income for a 3 person household. The maximum qualifying tenant income is 80% of median. 1 person 2 person 3 person 4 person Median 72,100 82,400 92,700 103,000 50% 36,050 41,200 46,350 51,500 70% 50,470 57,680 64,890 72,100 # of BMR units 2 Bdrm - Income: $46,350 (Three person household @ 50% of median) Housing Expense including utility allowance: $1,095 2 Bdrm - Income: $64,890 (Three person household @ 70% of median) Housing Expense including utility allowance: $1,558 EXHIBIT "C" TENANT INCOME CERTIFICATION SAN RAFAEL REDEVELOPMENT AGENCY MONITORING PROGRAM BELOW MARKET RATE RENTAL UNIT AGREEMENT Project Name: 1867 Lincoln Avenue Owner: APARTMENT # APARTMENT SIZE TENANT/ HOUSEHOLD NAME: last Date: MONTHLY RENT: first TOTAL HOUSEHOLD GROSS ANNUAL INCOME (2011): (total household income includes all wages, salaries, etc., as reported as gross income for federal income tax or pay stubs or other relevant documentation.) Attached hereto are federal or state income tax returns, stubs from paychecks or other evidence of the income of the persons listed below: Name of Member of the Relationship Age Household Place of Employment I/We the undersigned have read and answered fully, frankly and personally each of the above questions under penalty of perjury and do hereby swear they are true. Tenant - Head of Household Date: EXHIBIT `°D" CERTIFICATION OF CONTINUING COMPLIANCE SAN RAFAEL REDEVELOPMENT AGENCY BELOW MARKET RATE RENTAL UNIT AGREEMENT MONITORING PROGRAM Certification Year: Project Name: 1867 Lincoln Avenue Date: Owner: NUMBER OF VERY LOW/LOW INCOME UNITS: 1867 Lincoln One very low income units @ 50% of median: 1867 Lincoln One Low income units @ 70% of median: Annual Monitoring Fee: $ $100.00 The undersigned, in accordance with the with the City of San Rafael BELOW MARKET RATE AGREEMENT for this Project, hereby certifies that during the preceding twelve (12) months, the following units were occupied in accordance with the AGREEMENT and does hereby further certify that the representation set forth herein are true and correct to the best of the undersigned's knowledge. Lower Income Unit No. of Monthly Annual Household Resident Name No. Bedrooms Rent Income Size Attach additional sheets if necessary Signed: Owner Contact Person: Phone: Fax: Address: city: State: Zip: CITY OF SAN RAFAEL ROUTING SLIP / APPROVAL FORM INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF A CONTRACT, AGREEMENT, ORDINANCE OR RESOLUTION BEFORE APPROVAL BY COUNCIL / AGENCY. SRRA / SRCC AGENDA ITEM NO. 3. c DATE OF MEETING: June 17, 2013 FROM: Stephanie Lovette DEPARTMENT: Economic Development DATE: June 10, 2013 TITLE OF DOCUMENT: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE MAYOR TO SIGN BELOW MARKET RATE HOUSING AGREEMENT FOR 1867 LINCOLN AVENUE Depa ment Head signature) (LOWER HALF OF FORM FOR APPROVALS ONLY) APPROVED AS COUNCIL/ AGENCY AGENDA ITEM: City Manager (signature) NOT APPROVED REMARKS: APPROVED AS TO FORM: City Attorney (signature