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HomeMy WebLinkAboutCC Resolution 10378 (BMR Clocktower Apartments)RESOLUTION NO. 10.378 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE SIGNING OF A BELOW MARKET RATE RENTAL HOUSING AGREEMENT BETWEEN TOMMMY KENNEDY AND THE CITY OF SAN RAFAEL RE: CLOCKTOWER APARTMENTS, 729 Fourth Street, AP 11-275-01 THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The Vice MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael, a Below Market Rate Rental Housing Agreement between Tommy Kennedy and the City of San Rafael, a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at the regular meeting of the Council of said City on the fifteenth day of March, 1999, by the following vote, to wit: AYES: COUNCILMEMBERS: Heller, Miller, Phillips & Vice -Mayor Cohen NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Mayor Boro Jea� "e. Leoncini, City Clerk ORIGINAL e�� KEOYWING REQUESTED BY: RecaCounty County C Marin JOAN C. THAYER Recorder WHEN RECORDED MAIL. TO: 1999028236 Jeanne M. Leoncini, City Clerk REc�F.00CITY OF SAN RAFAEL .P.O. Box 151560 TOTAL .00 San Rafael, CA 94915-1560 NOS .00 TOTAL TEEM .88 Dpa .00 r 01:48M89-Rpr-1999 199954090127 BELOW MARKET RATE RENTAL UNIT AGREEMENT FOR CLOCKTOWER APARTMENTS, 729 FOURTH ST.; OWNER: TOM14Y KENNEDY (RESOLUTION NO. 10378) APR - 9 1999 THIS PAGE IS ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ADDITIONAL RECORDING FEE APPLIES COPI CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL UNIT AGREEMENT Project Name : Clocktower Apartments Address: 729 Fourth Street Owner: Tommy Kennedy THIS BELOW MARKET RATE RENTAL UNIT AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS is made and entered this date MARCH 15 , 1999, 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 Tommy Kennedy (the "Owner"). PREAMBLE WHEREAS, the Owner has proposes to construct a 30 unit residential apartment complex located at 729 Fourth Street, San Rafael, known as Clocktower Apartments ("Project"). WHEREAS, the Owner owns the real Property located within the corporate limits of the City and more particularly described in Exhibit "A" attached and incorporated for reference herein and; WHEREAS, the Owner has received the City's approval to construct the Project on the property and; WHEREAS the City's approval of the project is conditioned upon Owner's compliance with the Housing Element of the General Plan 2000 and providing low and moderate income units as set forth in Exhibit "B" attached and incorporated herein. NOW, THEREFORE, in consideration for the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and the Owner do hereby contract and agree as follows: AGREEMENT Section 1. DEFINITIONS AND INTERPRETATION. Unless otherwise expressly provided herein or unless the context clearly requires otherwise, the following terms shall have the respective meanings set forth below for all purposes of this Below Market Rate Rental Unit Agreement: "Affordable Housing Expense" is the maximum rent for any unit occupied by a Qualifying Tenant which shall be established and updated using the then current Median Gross Income for the Area as shown for example in Exhibit "B". "Low Income Household" shall mean the occupant (s) of a residential unit in the Project whose aggregate adjusted household income does not exceed 80% of the Median Gross Income for the Area, adjusted for household size. "Low/Moderate Income Unit" refers to the units described in Exhibit "B". "Median Gross Income for the Area" shall mean income for households of an applicable size in the San Francisco PMSA (Primary Metropolitan Statistical Area) most recently determined by HUD adjusted for household size, as provided by Marin Housing Authority. "Moderate Income Household" shall mean the occupant (s) of a residential unit in the Project whose aggregate adjusted household income does not exceed 120% of the Median Gross Income for the Area, adjusted for household size. "Plan" shall mean the City of San Rafael General Plan 2000. "Program Administrator" shall mean the administrator for compliance of the Project with the Below Market Rate Unit Rental Agreement which shall be the City. "Project" shall mean the parcel of real property in the City of San Rafael as described in Exhibit "A" hereto, and all rights and appurtenances pertaining thereto, and the buildings, structures and other improvements constructed or to be constructed thereon, including all fixtures and other property owned, leased or licensed by the Owner and located on, or used in connection with, such buildings, structures or other improvements, all of which shall be constructed and operated by the Owner in accordance with the restrictions set forth in this Agreement. "Project Period" means a period of forty (40) years commencing on the date of occupancy of 50% of the units in the Project. Upon occupancy of 50% of the units in the Project, Owner and City shall execute, and record, with the Marin County Recorders Office, Exhibit "E" to this Agreement specifiying the commencement and expiration date of Project Period. The restrictions set forth herein shall be deemed covenants running with the land provided, however, that upon termination of this Agreement said covenants shall expire. "Qualifying Tenant" means resident households whose incomes do not exceed the household income limits for Low Income Household and/or Moderate Income Household. Z Section 2. QUALIFYING TENANTS (a) SELECTION. For the duration of the full Project Period, Qualifying Tenant selection shall be based on income eligibility for Low and Moderate Income Households as defined in Section 1 and subject to final approval by the Owner. (b) QUALIFICATION. Qualifying Tenant status shall be determined at the time of initial occupancy of a unit by the tenant(s) and certified annually on the basis of a Tenant Income Certification (Exhibit "C") executed by the Qualifying Tenant and accompanied by a copy of: (i) their federal income tax return for the immediately prior tax year; or (ii) their employer's verification of current income ; or (iii) if the Qualifying Tenant is self-employed or the tax return is unavailable, such other satisfactory evidence of income. If a qualifying Tenant certifies that he/she did not file or did not retain a copy of their federal tax return, other evidence, such as a current wage statement or employer records must be obtained. (c) OCCUPANCY. Throughout the Project Period, the required Low/Moderate Income Units in the Project shall be occupied and at all times be rented to Qualifying Tenants at rental rates not to exceed the Affordable Housing Expense as set forth in Exhibit B. No Qualifying Tenant shall be denied continued occupancy, because this tenant exceeds the income limits. If, as of the most recent Tenant Income Certification, it is determined that the income of Qualifying Tenant exceeds one hundred -forty percent (140%) of the Median Gross Income for the Area, then they shall no longer qualify as a Qualifying Tenant. The Owner shall provide the next vacated unit (s) of comparable or smaller size to a Qualified Tenant, as needed to achieve compliance. The Owner shall immediately notify, in writing, each tenant who is no longer a Qualified Tenant of such fact, and that such tenant(s) rent is subject to increase 30 days after receipt of such notice. The Owner shall be entitled to so increase any such tenant's rent only if Owner complies with any law applicable thereto and only after the Owner has rented the next available unit or units in the Project on a one-for-one basis to a Qualified Tenant, or holds units vacant and available for occupancy by Qualified Tenants. The Owner agrees to inform all prospective Qualifying Tenants of the requirements for annual certification of income and of the provisions of the preceding paragraphs. Section 3. REPORTING. (a) EXHIBIT "C" TENANT INCOME CERTIFICATION. Exhibit C shall be obtained from each Qualified Tenant and maintained on file by the Owner. If not previously submitted, attach copy and submit with Exhibit D to the Program Administrator. (b) EXHIBIT "D" CERTIFICATION OF CONTINUING COMPLIANCE. Exhibit D shall be submitted by the Owner to the Program Administrator quarterly until the project is fifty percent (50%) occupied and semi-annually thereafter for the Project Period. (c) The Owner shall permit the Program Administrator to inspect the Project records at the Owner's office upon 10 days notice. Section 4. COVENANTS. It is intended and determined that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Project for the benefit thereof, and the burdens and benefits thereof shall bind and inure to the benefit of all successors in interest of the parties hereto; provided, however, that on the termination of this Agreement said covenants shall expire. Section 5. TERM. This Agreement shall become effective upon its execution and delivery. Except as provided in the immediately following paragraph, this Agreement shall remain in full force and effect for the Project Period. Section 6. DEFAULT AND ENFORCEMENT. In the event the Owner leases any unit at a rent in violation of this Agreement, the Owner shall immediately, upon notice from the City, rent the unit at the Affordable Housing Rent in accordance with Exhibit B of this Agreement and pay; (i) to the Qualifying Tenant, 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 under its general plan from violation of this Agreement by the Owner, and (b) the anticipation that proof of the actual damages would be costly 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 Tenant. Section 7. MONITORING FEE. The Owner agrees to pay to the City during the Project Period an annual monitoring fee payable on or before June 1 of each year and shall be calculated at the rate of $50.00 per Low and Moderate Income Unit per year. Total annual fee $250.00. If the expenses of the City in monitoring compliance by the Owner, with provisions of this Agreement, are in excess of $250.00 in any annual 4 period, the Owner upon written demand shall pay such actual excess costs in an amount not to exceed 10% increase per year. Section 8. UNIT MIX, LOCATION AND HOUSEHOLD SIZE. The Below Market Rate Units shall be located on the parcel described in Exhibit A. Section 9. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. Section 10. AMENDMENTS. This Agreement shall be amended only by written instrument signed by all of the parties hereto. Section 11. ATTORNEY'S FEES. In the event that a party to this Agreement brings an action against any other party to this Agreement by reason of the breach of any condition or covenant, in this Agreement, or otherwise arising out of this Agreement, the prevailing party in such action shall be entitled to recover from the other reasonable attorney's fees to be fixed by the court which shall render a judgment, as well as the costs of suit. Section 12. SEVERABILITY. If any provision of this Agreement shall be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction because it conflicts with any other provision (s) or any constitution or statute or rule of public policy, or for any reason, such circumstance shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance or of rendering any other provision or provisions contained herein invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections contained in this Agreement shall not affect the remaining portions of this Agreement, or any part hereof. Section 13. RECORDING AND FILING. The Owner shall cause this Agreement and all amendments hereto to be recorded and filed in the real property records in the office of the County Recorder of Marin County within 5 working days of the City's execution of the Agreement and shall pay all fees and charges incurred in connection therewith and shall transmit a recorded copy to the City. Upon the expiration of the Project Period the City shall cooperate with the Owner, at the sole expense of the Owner, in the recording of such instruments or instruments of release or termination as the Owner may reasonably request. Section 14. NOTICE. All notices required or permitted under this Agreement shall be sent by certified United States mail, or an overnight courier service requiring a signed receipt, addressed as follows: 5 TO THE CITY: TO THE OWNER: City of San Rafael Attn : City Manager P.O. Box 151560 San Rafael, CA 94915-1560 Tommy Kennedy 454 Las Galinas; #237 San Rafael, CA, 94903 Notice shall be deemed served for purposes of the Agreement one day after deposit in the United States mail or acceptance by the overnight courier service. Any party may change its address for purpose of notice by giving notice pursuant to this section. Section 15. TERMINATION. This Agreement shall terminate and be of no further force or effect at the end of the Project Period. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first written above. CITY OF 7SANAEL ATTEST: BY: �. J� anne M. Leoncini, City Clerk Name: PAUL M. COHEN Title: Vice -Mayor OWNER Name: Tommy Kennedy 61 2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of Mar� n On April 8, 1999 ,before me, Nancy Eurman, Notary Public Date Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared Paul M. Cohen 1 '^'w' A NANCY EURMAN 0 COMM. #1086576 1 [! `� NOTARY PUBLIC -CALIFORNIA n 1 MANN COUNTY My Comm. Expires Feb. 4, 2000 Name(s) of Signer(s) 1 personally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose names), is/arB, subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ibs), and that by his/herltheir signature(.§) on the instrument the person(&), or the entity upon behalf of which the person($) - acted, executed the instrument. WITNESS my handl and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: BMR Rental Unit Agree. for Clocktower Apartments, 729 Fourth St.; Owner: Tommy Kennedy (Reso. 10378) Document Date: March 15 , 1999 Number of Pages: Thirteen Signer(s) Other Than Named Above: Tommy Kennedy Capacity(ies) Claimed by Signer Signer's Name: Paul M. Cohen iWe o A. ❑ Individual Tap of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — -- Limited . General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator XX Other: Vice -Mayor Signer Is Representing: City of San Rafael i �l ®1997 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800.876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Marin On April 9, 1999 Date personally appeared , before me, Tommy Kennedy ss. Nancy Eurman, Notary Public Name and Title of Officer (e.g., "Jane Doe, Notary Public") Name(s) of Signer(s) personally known to me XX proved to me on the basis of satisfactory evidence to be the personas) whose name(s) Lja/ate subscribed to the within instrument and acknowledged to me that, e/she/they executed the same in (hisYh�_ar/their authorized capacity(ies), and that by 6is/har/their signature(s) on the instrument the person(§), or the entity upon behalf of which the person(} acted, executed the instrument. W�TNESS my hand and official seal. t S Place Notary Seat Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: BMR Rental Unit Agree. for Clocktower Apartments 729 Fourth St.; Owner: Tommy Kennedy (Reso. 103)8) Document Date: March 15, 1999 Number of Pages: Fourteen Signer(s) Other Than Named Above: Paul M. Cohen Capacity(ies) Claimed by Signer Signer's Name: Tommy Kennddy ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — Limited . General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator XX Other: Ownp r Signer Is Representing: 0 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth. CA 91313-2402 Prod. No. 5907 Reorder. Call Toll -Free 1-800.876.6827 r NANCY EURMAN D d COMM. #1086576 1 NOTARY PUBLIC -CALIFORNIA 0 Q MARIN COUNTY 1 My Comm.Expires Feb. 4, 2000 ss. Nancy Eurman, Notary Public Name and Title of Officer (e.g., "Jane Doe, Notary Public") Name(s) of Signer(s) personally known to me XX proved to me on the basis of satisfactory evidence to be the personas) whose name(s) Lja/ate subscribed to the within instrument and acknowledged to me that, e/she/they executed the same in (hisYh�_ar/their authorized capacity(ies), and that by 6is/har/their signature(s) on the instrument the person(§), or the entity upon behalf of which the person(} acted, executed the instrument. W�TNESS my hand and official seal. t S Place Notary Seat Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: BMR Rental Unit Agree. for Clocktower Apartments 729 Fourth St.; Owner: Tommy Kennedy (Reso. 103)8) Document Date: March 15, 1999 Number of Pages: Fourteen Signer(s) Other Than Named Above: Paul M. Cohen Capacity(ies) Claimed by Signer Signer's Name: Tommy Kennddy ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — Limited . General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator XX Other: Ownp r Signer Is Representing: 0 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth. CA 91313-2402 Prod. No. 5907 Reorder. Call Toll -Free 1-800.876.6827 EXHIBIT "A" DESCRIPTION All that certain real property situate in the City of San Rafael, County of Marin, State of California, described as follows: THAT PORTION of Block 48 of the City of San Rafael, County of Marin, State of Califomia, as shown on the Map of the Town of San Rafael, filed October 4, 1873 in Rack 1 of Maps, Pull 4, Marin County Records, described as follows: BEGINNING at the intersection of the Southerly line of Fourth Street with the Easterly line of Petaluma (now Lincoln) Avenue, as shown on said map; thence Easterly along said South line of Fourth Street, 120 feet to the Northwest corner of the land conveyed to Annie C. Nichols by deed dated August 17, 1912, recorded in Book 146 of Deeds, at Page 313, Marin County Records; thence Southerly along the Westerly line of land so conveyed 90 feet to the Southwest corner thereof; thence Easterly along the Southerly line of said Nichols 30 feet to the Southeast comer thereof; thence South along the West line conveyed to H.C. Whiting by Deed recorded in Book 'Y' of Deeds, at Page 258, Marin County Records, 14 feet to the Southwest corner thereof; thence Easterly along the land so conveyed to Whiting 50 feet to the West line of Tamalpais Avenue; thence South on the West line of Tamalpais Avenue, 24 feet; thence West 197.45 feet, more or less, to a point in the East line of Petaluma (now Lincoln) Avenue, which is 172 feet North of its intersection with the North line of Third Street and thence North on the East line of Petaluma Avenue, 127 feet, more or less, to the point of beginning. EXCEPT the Northerly 4 feet thereof as excepted in Deeds of Record for the widening of Fourth Street. EXHIBIT "B" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT PROJECT NAME: Clocktower Apartments DATE: ADDRESS: 729 Fourth Street OWNER: Tommy Kennedy TOTAL NUMBER OF UNITS: 30 TOTAL NUMBER OF LOW / MODERATE INCOME UNITS: 5 NUMBER OF LOW INCOME UNITS: 3 NUMBER OF MODERATE INCOME UNITS: 2 AFFORDABLE HOUSING EXPENSE CALCULATION: For example, using the 1999 Median Gross Income for the Area such calculation would be as follows: Low Income Units: The studio unit Housing Expense shall not exceed 1/12 of 30% of 65% of the median gross annual income for a 1 person household. The one bedroom unit Housing Expense shall not exceed 1/12 of 30% of 65% of the median gross annual income for a 2 person household. 1 person 2 person 3 person Median 50,700 80% 40,550 90% 45,600 65% 32,950 57,900 65,150 46,350 52,150 52,150 58,650 37,650 42,350 Studio - Income : $32,950 (One person household @ 65% of median) Maximum Housing Expense : ($32,950/12) x 30% = $823 1 Bedroom - Income: $37,650 (Two person household @ 65% of median) Maximum Housing Expense : ($37,650/12) x 30% = $941 Moderate Income Units: The studio unit monthly rent shall not exceed 1/12 of 30% of 90% of the median gross annual income for a 1 person household. The one bedroom unit rent shall not exceed 1/12 of 30% of 90% of the median gross annual income for a 2 person household. Studio - Income : $45,600 (One person household @90% of median) Maximum Housing Expense : ($45,600/12) x 30% = $1,140 1 Bedroom - Income: $52,150 (Two person household @ 90% of median) Maximum Housing Expense: ($52,150/12) x 30% = $1,304 EXHIBIT "C" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL UNIT AGREEMENT TENANT INCOME CERTIFICATION PROJECT NAME: Clocktower Apartments DATE: ADDRESS: 729 Fourth Street OWNER: Tommy Kennedy APARTMENT NO. MONTHLY RENT: TENANT / HOUSEHOLD NAME: last first TOTAL CURRENT HOUSEHOLD GROSS ANNUAL INCOME: (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 Social Place of Household Security No. Employment I/We the undersigned have read and answered fully, frankly and personally each of the above questions under penalty of purjury and do hereby swear they are true. Tenant - Head of Household Date : EXHIBIT "D'" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL UNIT AGREEMENT CERTIFICATION OF CONTINUING COMPLIANCE PROJECT NAME: Clocktower Apartments DATE: ADDRESS: OWNER: TOTAL UNITS: 729 Fourth Street Tommy Kennedy 30 TOTAL LOW and MODERATE INCOME UNITS: 5 The undersigned, in accordance with the BELOW MARKET RATE RENTAL UNIT AGREEMENT with the City of San Rafael dated for the Project does hereby certify that during the preceding twelve (12) months, the following units were occupied in accordance with the Below Market Rate Rental Unit Agreement and does hereby further certify that the representation set forth herein are true and correct to the best of the undersigned's knowledge. Low Income Unit Monthly Annual Household Tenants Name No. Rent Income size Signed : Date Owner attach additional sheets if necessary EXHIBIT "E" CITY OF SAN RAFAEL BELOW MARKET RATE RENTAL AGREEMENT NOTICE OF COMMENCEMENT OF PROJECT PERIOD PROJECT NAME: Clocktower Apartments DATE: ADDRESS: 729 Fourth Street OWNER: Tommy Kennedy The "Project Period" as defined in that certain BELOW MARKET RATE RENTAL UNIT AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS, recorded on , as Document # , in the Office of the Marin County Recorder and pertaining to the real property within the City of San Rafael, State of California, described in Exhibit "A" attached hereto, commenced on The Project Period will expire on CITY OF SAN RAFAEL ATTEST: BY: Jeanne M. Leoncini, City Clerk Name: Title: OWNER BY: Name: Title: