HomeMy WebLinkAboutAgr 2012-06-30 (Housing Authority of the County of Marin/Town)MAROktrN
HOUSING
Making Housing More Affordable
September 10, 2012
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
4020 Civic Center Drive
San Rafael, CA 94903
S EP 13 2012
Attn:: Diane Crane lacopi - Town Clerk
RE: Below Market Rate (BMR) Program Portfolio Management Agreement
Dear Ms. Crane:
Enclosed is the above-mentioned fully executed Agreement signed by our Chief
Financial Officer. We have the other original in our file.
Thank you for your assistance.
Sincerely,
Carmen Soruco
Home Ownership Programs Specialist
(415) 491-2532
csoruco(cD-marinhousinq orq
MAROktrN
HOUSING
Making Housing More Affordable
September 10, 2012
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
4020 Civic Center Drive
San Rafael, CA 94903
S EP 13 2012
Attn:: Diane Crane lacopi - Town Clerk
RE: Below Market Rate (BMR) Program Portfolio Management Agreement
Dear Ms. Crane:
Enclosed is the above-mentioned fully executed Agreement signed by our Chief
Financial Officer. We have the other original in our file.
Thank you for your assistance.
Sincerely,
Carmen Soruco
Home Ownership Programs Specialist
(415) 491-2532
csoruco(a-)-marinhousing. org
Agreement
for BMR Program Portfolio Management
Town of Tiburon
This Agreement for BMR Program Portfolio Management (the "Agreement") is made and
entered into as of June 30, 2012, by and between the Housing Authority of the County of Marin
(the "Authority") and the Town of Tiburon ("Jurisdiction") relating to Jurisdiction's Below
Market Rate Homeownership Program (the "BMR Program," and each unit that is part of the
BMR Program is referred to a `BMR Unit").
NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the
Authority and Jurisdiction agree as follows:
1. PROGRAM MANAGEMENT SERVICES.
The Authority shall provide the following services to Jurisdiction:
A. SALE AND RE-SALE SERVICES.
i. Meet with Jurisdiction and prospective developers to discuss (1)
Jurisdiction'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. Establish the initial for-sale BMR Unit pricing information for the Below
Market Rate Housing Agreement pursuant to the affordability requirements
established by Jurisdiction.
iii. Conduct resale price evaluations for existing BMR Units for purposes of
resale or refinance.
iv. 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.
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. 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
Below Market Rate Portfolio Management Agreement Page 1
Agreement, and the Notice of Affordability Restrictions and a Request for
Copy of Default Notice as appropriate.
vii. Consult with Jurisdiction regarding lender requests to modify or subordinate
Authority documents and obtain consent from Jurisdiction prior to agreeing
to any such modification or subordination.
viii. Utilize the most current versions of the following documents, in such form as
approved by the Jurisdiction, 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;
4. Below Market Rate Housing Agreement (a three-party agreement by
and among the Authority, Jurisdiction, and Developer) and
5. Notice of Affordability Restrictions.
ix. Subject to availability, provided limited assistance to BMR Unit buyers with
obtaining down payment assistance. Assistance programs may include, but
are not limited to, the Mortgage Credit Certificate Program (MCC), HOME,
CalHome and other programs available to eligible buyers within the
Jurisdiction.
x. 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 and, if appropriate, adjust the sales
price for such owner's BMR Unit.
xi. Manage applicants for BMR Unit ownership by:
1. Determining applicant eligibility pursuant to criteria established
in cooperation with Jurisdiction; and
2. Operating a computer-generated lottery system to select
prospective BMR Unit buyers.
B. BMR PROGRAM MONITORING SERVICES.
i. Authority shall perform annual monitoring of no less than one-third of
Jurisdiction's existing BMR Units to attempt to verify compliance with the Resale
Restrictions Agreement (e.g., continuing owner occupancy, no subleasing, no
Below Market Rate Portfolio Management Agreement Page 2
refinancing without approval, no over-encumbering, etc.) of certain existing BMR
owners.
ii. MHA shall provide semi-annual status reports to Jurisdiction on BMR sales
activity, refinancing activity, and other related information that is reasonably
requested by the Jurisdiction (e.g., BMR owner demographics, current
affordability levels, issues and concerns, etc.).
C. INFORMATION AND EDUCATION.
i. Upon request, Authority shall provide Jurisdiction, BMR Program
participants, and lenders with information concerning procedures and/or
restrictions regarding BMR Unit conveyance, refinancing, and determination of
affordability and capital improvements.
ii. Authority shall provide, or cause to be provided, counseling workshops for
first-time home buyers concerning credit, qualifying for a loan, loan types and
terms, refinancing, fair housing, and/or HOA's.
iii. Provide Median Household Income information to Jurisdiction and
prospective developers, and provide relevant information concerning Income
Limits and Median Income, the relationship between those factors, and how those
factors typically are used to determine affordability.
iv. Provide or cause to be provided periodic newsletters to BMR Unit owners
and other stakeholders.
D. FEE
Jurisdiction shall pay Authority $597 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,
2012. As of the effective date of this Agreement, the BMR Program in Tiburon is
comprised of Twenty-Four (24) BMR Units, six of which are owned and
administered by the town of Tiburon with the remaining 18 Units administered
under this Agreement. Accordingly, Jurisdiction shall pay to Authority TEN
THOUSAND SEVEN HUNDRED FORTY-SIX DOLLARS ($10,746.00) for the
initial 12 months of this Agreement (for services rendered through June 30, 2013.
The total number of BMR Units may be adjusted from time to time, which would
adjust the annual payment that Jurisdiction is obligated to pay to Authority.
II. ENFORCEMENT SPECIALIST SERVICES.
A. Should the Authority identify BMR Program violations by any BMR Unit owners,
the Authority shall promptly notify the Jurisdiction and, upon Jurisdiction's
request, the Authority shall contact such BMR Unit owner and demand correction
of their violation(s). The Authority, with consent of the Jurisdiction, will attempt
Below Market Rate Portfolio Management Agreement Page 3
to enforce the BMR Resale Restrictions Agreement to secure and preserve the
BMR Unit for the Jurisdiction and enforce compliance with the BMR Program, or
as otherwise directed by the Jurisdiction with respect to each such BMR Unit.
The services performed by Authority pursuant to this sub-section A. shall be
referred to as "Enforcement Services."
B. FEE TO AUTHORITY FOR ENFORCEMENT SERVICES
Enforcement Services will be provided on a case-by-case basis only upon
Jurisdiction's written consent pursuant to sub-section A, immediately above.
Enforcement Services will be provided by an employee of the Authority, and the
Authority will charge Jurisdiction $95 per hour if the Enforcement Services are
performed by a non-attorney 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 1/4 hour increments, at a maximum limit of $1,900
per BMR Unit. The Authority will submit detailed monthly billings to
Jurisdiction reflecting the Enforcement Services performed. Payment is due on
all billings net 30 days from the date Jurisdiction receives the invoice. No fees
shall be billed to Jurisdiction in excess of the above maximum without
Jurisdiction's prior written approval. Compensation for Enforcement Services
will be in addition to the compensation provided to Authority under other
provisions of this Agreement.
III. BMR PROGRAM DISPUTES.
A. LEGAL SERVICES IN THE 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
Jurisdiction within a reasonable period of time within which Authority learns of a
Dispute. In the event Authority notifies Jurisdiction of a Dispute, the Authority
may, with Jurisdiction'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
Jurisdiction reasonably informed and forward legal counsel's advice to
Jurisdiction concerning each Dispute. Any time expended by Authority
employees regarding a Dispute shall also constitute Enforcement Services and
will be billed pursuant to Section II. B., above.
B. 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 Jurisdiction), the
Jurisdiction will be briefed on the recommended course of action provided by
Below Market Rate Portfolio Management Agreement Page 4
legal counsel and the Jurisdiction shall provide general direction to Authority with
respect to each Dispute.
C. EXERCISE OF OPTION TO PURCHASE PURSUANT
TO RESALE RESTRICTION AGREEMENT:
In the event an option to purchase a BMR Unit may be exercised, the Authority
shall:
i. Notify Jurisdiction 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"); and
ii. 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 Jurisdiction in deciding on a course of action.
iii. Within ten (10) working days of receipt of the Notice, Jurisdiction shall
provide written instructions to the Authority directing the Authority to (1)
exercise the Option, (2) assign to Jurisdiction the right to exercise the
Option to purchase the BMR Unit with Jurisdiction assuming
responsibility to enforce the Resale Restriction Agreement and Deed of
Trust and Security Agreement, or (3) file a Notice of Abandonment.
If the Jurisdiction requests that the Authority exercise the Option, the Authority
shall:
iv. Utilize the funds collected through re-sales of BMR Units within
Jurisdiction, if any, to purchase the BMR Unit that is subject to the Notice;
or
v. Utilize Authority's line of credit if Authority determines it would not
interfere with Authority's operations; provided, however, Authority shall
be reimbursed by Jurisdiction such amount that Authority contributes
toward the exercise of an option, which 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.
Jurisdiction shall furnish to Authority a short-term loan in such amount as needed
by Authority to exercise an option if Authority is unable to exercise such option
pursuant to sub-sections iv. or v. of this Section III.C.
IV. BROKERAGE FEES.
Up to 6% of the total sales price of each BMR Unit will be payable to a broker /
agent and to the Authority. The precise distribution of the 6% will be dependent
Below Market Rate Portfolio Management Agreement Page 5
on whether there is dual representation of the BMR Unit buyer and seller by an
agent / broker. The Authority's portion of the 6% will be used to cover
Authority's services in connection with each sale of a BMR Unit, and will be in
addition to the compensation provided to Authority under other provisions of this
Agreement.
V. BMR PROGRAM HOME OWNER FEES TO AUTHORITY.
A. BMR Program Lottery Application Fee - Each person that applies to participate
in the BMR Program shall pay to the Authority an annual fee of $25 for the
calendar year, and it is payable at the time an application is submitted. This fee
entitles the applicant to obtain information about the BMR Program, request pre-
qualification, lottery inclusion based on the family composition, and limited
assistance in the purchase process. If the applicant has completed a First Time
Homeownership Counseling Workshop from a HUD-approved provider prior to
applying for the Lottery, the $25 fee will be waived.
B. The Authority shall charge owner of a BMR Unit a fee of $50 for preparing a
BMR Resale-Price valuation.
C. The Authority shall charge BMR Unit owners a fee of $50 for the evaluation and
approval of capital improvements to be added to the resale price. The fee for this
service shall be $100 if a physical inspection is required. The Authority will not
consider any capital improvement evaluation request for improvements of less
than $1,000.
D. Any fees received by the Authority pursuant to this Section V shall be irrevocably
retained by the Authority to fund the services it provides for which such fee is
charged, and will be in addition to the compensation,provided to Authority under
other provisions of this Agreement.
VI. JURISDICTION RESPONSIBILITIES.
Jurisdiction shall:
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, including, but not limited to, a three-party
(among Authority, Jurisdiction, and a developer/contractor) Below Market Rate
Housing Agreement;
B. Communicate with Authority, including, but not limited to, meeting with
Authority on an annual basis to review the asset management portfolio and the
services;
Below Market Rate Portfolio Management Agreement Page 6
C. Assess and pay fees due to Authority as required by this Agreement. The
invoiced fees and related expenses shall be paid by Jurisdiction within thirty (30)
days of Authority's submission of billings. Jurisdiction further agrees to assume
and be solely responsible for all and any payment for legal services performed on
Jurisdiction's and Authority's behalf per this Agreement.
D. Provide, or cause to be provided, access to Authority to any and all Jurisdiction
information and documentation necessary for the Authority to perform pursuant to
this Agreement, including but not limited to, documents recorded by Jurisdiction.
E. Jurisdiction hereby agrees to defend, indemnify and hold harmless Authority and
its employees, commissioners, and representatives (each an "Indemnified
Party") from and against any and all damages, injuries, claims, liability and
expense, whatsoever, including attorneys' fees, costs, and related disbursements
(collectively, "Damages"), incurred by reason of a BMR Unit, the BMR Program,
or this Agreement, except such Damages caused by the willful misconduct of
Authority. This sub-section E. shall survive termination of this Agreement.
VII. BMR RENTAL PROGRAM MONITORIING.
The Authority can provide monitoring services for the Jurisdiction's BMR rental
units for an additional fee. Monitoring services include review of Tenant Income
Certifications and Certificates of Continuing Compliance provided by a property
management company. The Authority will provide these services upon Jurisdiction's
written request to provide rental monitoring services and Authority's written acceptance
of Jurisdiction's request.
Further, in connection with these monitoring services, the Authority has the
capacity and expertise to recalculate a schedule of maximum allowable BMR rents each
time HUD publishes a revised Area Median Income. Utility allowances would also be
revised at the same time based on the current Section 8 Housing Assistance Payment
Program schedule of utility allowances determined by the Authority.
The fee for the performance of rental monitoring is $50/per unit per year (but
may be adjusted based upon size of property and specific scope of work) and is paid
directly to the Authority by the property owner and/or property management company.
VIII. TERM OF AGREEMENT
Regardless of the term of the BMR Resale Restrictions recorded with
Jurisdiction's BMR Units, the term of this Agreement shall be for five (5) years from the
date of this Agreement, and will automatically renew for additional two (2) year terms,
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 or any renewal
term.
IX. MISCELLANEOUS
Below Market Rate Portfolio Management Agreement Page 7
a. INTEGRATION CLAUSE
This Agreement constitutes the entire agreement between the parties to this
Agreement with respect to the subject matter of this Agreement, and there are no other
terms, obligations, covenants, representations, statements, or conditions except as set
forth in this Agreement. No change or amendment to this Agreement will be effective
unless in writing and signed by the parties to this Agreement. Failure to insist upon strict
compliance with any term or provision of this Agreement will not be deemed to be a
waiver of any rights under a subsequent act or failure to act. This Agreement specifically
supersedes all prior agreements between the parties.
b. CONSTRUCTION
The parties to this Agreement have been represented by counsel in the negotiation
and preparation of this Agreement, and this Agreement will be construed according to its
fair language. The rule of construction to the effect that ambiguities are to be resolved
against the drafting party will not be employed in interpreting this Agreement.
c. COUNTERPART ORIGINALS
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same
agreement. Facsimile or PDF copies of signed signature pages shall be binding originals.
d. SEVERABILITY
In the event that for any reason one or more of the provisions of this Agreement
or its or their application to any person or circumstance is held to be invalid, illegal, or
unenforceable in any respect or to any extent, such provisions will, nevertheless, remain
valid, legal, and enforceable in all other respects and to such extent as may be
permissible, and, in addition, any such invalidity, illegality, or unenforceability will not
affect any other provision hereof, but this Agreement will be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
e. NOTICES
Any notice or communication required or permitted under this Agreement must
be sent by e-mail (provided delivery is confirmed) or U.S. Mail (certified only) return
receipt requested pursuant to the addresses set forth immediately below, or at such other
addresses as shall be designated in writing by either party to the other in accordance with
this Section. Such notice will be deemed to be given when received.
Below Market Rate Portfolio Management Agreement Page 8
Authority: Housing Authority of the County of Marin
Attention: Executive Director
4020 Civic Center Drive
San Rafael, CA 94903-4173
Jurisdiction: Town of Tiburon
Attention: Town Manager
1505 Tiburon Blvd.
Tiburon, CA 94920
IN WITNESS WHEREOF, the Housing Authority of the County of Marin and the
Town of Tiburon, 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 Town of Tiburon:
Margaret Curran, Town Manager
For the Housing Authority of the County of Marin:
~/l 9-1411c,61-
Ron Millard, Chief Financial Officer
APP O AS TO F C07 R 17'4p
ANN DANFORTH
TOWN ATTORNEY
TOWN OF TIBURON
DATE
Approved as to Form:
County of Marin Housing Authority Counsel
OF AGREEMENT
Below Market Rate Portfolio Management Agreement Page 9
All( ff4
Town of Tiburon • 1505 Tiburon Boulevard • Tiburon, CA 94920 • P. 415.435.7373 E 415.435.2438 • www.ci.tiburon.ca.us
Office of the Town Clerk / 415.735.7377
August 29, 2012
Carmen Hall Soruco
Horne Ownership Programs
Marin Housing Authority
4020 Civic Center Drive
San Rafael, CA 94903-4173
RE: Below Market Rate (BMR Program Portfolio Management Agreement
Dear Ms. Soruco:
Enclosed are two (2) copies of the above agreement signed by the Town of
Tiburon. Please send us a signed copy once it has been executed by MHA.
Thank you for your cooperation in this matter.
Very truly yours,
Diane Crane acopi
Town Clerk
Enclosures
cc: Town Attorney Danforth
Director of Administrative Services Bigall
(w/ invoice for services fees FY 2012-13)
Jim Fraser
Mayor
Emmett O'Donnell
Vice Mayor
Richard Collins
Councilmember
. . . . . . .
Frank Doyle
Councilmember
Alice Fredericks
Councilmember
Margaret A. Curran
Town Manager
F~4
a~~/
"Y D
NIARO~trN
HOUSING
Making Housing More Affordable
INVOICE
Invoice Date: July 16, 2012
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
Attention: Margaret Curran, Town Manager
For Services Rendered:
Ref: Below Market Rate Program Management Services Fee
The Town of Tiburon and
The Housing Authority of the County of Marin
In a pending Agreement dated June 30, 2012 through June 30, 2017
Effective for the period of June 30, 2012 through June 30, 2013
$597per unit annual fee x 18 units=
TOTAL AMOUNT NOW DUE:
Please make check payable to "Marin Housing/BMR".
Thank you,
cw-s~
Carmen Hall Soruco
Home Ownership Programs
(415) 491-2532
$10,746.00
7/16/2012
Agreement
for BMR Program Portfolio Management
Town of Tiburon
This Agreement for BMR Program Portfolio Management (the "Agreement") is made and
entered into as of June 30, 2012, by and between the Housing Authority of the County of Marin
(the "Authority") and the Town of Tiburon ("Jurisdiction") relating to Jurisdiction's Below
Market Rate Homeownership Program (the "BMR Program," and each unit that is part of the
BMR Program is referred to a `BMR Unit").
NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the
Authority and Jurisdiction agree as follows:
1. PROGRAM MANAGEMENT SERVICES.
The Authority shall provide the following services to Jurisdiction:
A. SALE AND RE-SALE SERVICES.
i. Meet with Jurisdiction and prospective developers to discuss (1)
Jurisdiction'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. Establish the initial for-sale BMR Unit pricing information for the Below
Market Rate Housing Agreement pursuant to the affordability requirements
established by Jurisdiction.
iii. Conduct resale price evaluations for existing BMR Units for purposes of
resale or refinance.
iv. 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.
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. 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
Below Market Rate Portfolio Management Agreement Page 1
Agreement, and the Notice of Affordability Restrictions and a Request for
Copy of Default Notice as appropriate.
vii. Consult with Jurisdiction regarding lender requests to modify or subordinate
Authority documents and obtain consent from Jurisdiction prior to agreeing
to any such modification or subordination.
viii. Utilize the most current versions of the following documents, in such form as
approved by the Jurisdiction, 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;
4. Below Market Rate Housing Agreement (a three-party agreement by
and among the Authority, Jurisdiction, and Developer) and
5. Notice of Affordability Restrictions.
ix. Subject to availability, provided limited assistance to BMR Unit buyers with
obtaining down payment assistance. Assistance programs may include, but
are not limited to, the Mortgage Credit Certificate Program (MCC), HOME,
CalHome and other programs available to eligible buyers within the
Jurisdiction.
x. 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 and, if appropriate, adjust the sales
price for such owner's BMR Unit.
xi. Manage applicants for BMR Unit ownership by:
1. Determining applicant eligibility pursuant to criteria established
in cooperation with Jurisdiction; and
2. Operating a computer-generated lottery system to select
prospective BMR Unit buyers.
B. BMR PROGRAM MONITORING SERVICES.
i. Authority shall perform annual monitoring of no less than one-third of
Jurisdiction's existing BMR Units to attempt to verify compliance with the Resale
Restrictions Agreement (e.g., continuing owner occupancy, no subleasing, no
Below Market Rate Portfolio Management Agreement Page 2
refinancing without approval, no over-encumbering, etc.) of certain existing BMR
owners.
ii. MHA shall provide semi-annual status reports to Jurisdiction on BMR sales
activity, refinancing activity, and other related information that is reasonably
requested by the Jurisdiction (e.g., BMR owner demographics, current
affordability levels, issues and concerns, etc.).
C. INFORMATION AND EDUCATION.
i. Upon request, Authority shall provide Jurisdiction, BMR Program
participants, and lenders with information concerning procedures and/or
restrictions regarding BMR Unit conveyance, refinancing, and determination of
affordability and capital improvements.
ii. Authority shall provide, or cause to be provided, counseling workshops for
first-time home buyers concerning credit, qualifying for a loan, loan types and
terms, refinancing, fair housing, and/or HOA's.
iii. Provide Median Household Income information to Jurisdiction and
prospective developers, and provide relevant information concerning Income
Limits and Median Income, the relationship between those factors, and how those
factors typically are used to determine affordability.
iv. Provide or cause to be provided periodic newsletters to BMR Unit owners
and other stakeholders.
D. FEE
Jurisdiction shall pay Authority $597 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,
2012. As of the effective date of this Agreement, the BMR Program in Tiburon is
comprised of Twenty-Four (24) BMR Units, six of which are owned and
administered by the town of Tiburon with the remaining 18 Units administered
under this Agreement. Accordingly, Jurisdiction shall pay to , Authority TEN
THOUSAND SEVEN HUNDRED FORTY-SIX DOLLARS ($10,746.00) for the
initial 12 months of this Agreement (for services rendered through June 30, 2013.
The total number of BMR Units may be adjusted from time to time, which would
adjust the annual payment that Jurisdiction is obligated to pay to Authority.
II. ENFORCEMENT SPECIALIST SERVICES.
A. Should the Authority identify BMR Program violations by any BMR Unit owners,
the Authority shall promptly notify the Jurisdiction and, upon Jurisdiction's
request, the Authority shall contact such BMR Unit owner and demand correction
of their violation(s). The Authority, with consent of the Jurisdiction, will attempt
Below Market Rate Portfolio Management Agreement Page 3
to enforce the BMR Resale Restrictions Agreement to secure and preserve the
BMR Unit for the Jurisdiction and enforce compliance with the BMR Program, or
as otherwise directed by the Jurisdiction with respect to each such BMR Unit.
The services performed by Authority pursuant to this sub-section A. shall be
referred to as "Enforcement Services."
B. FEE TO AUTHORITY FOR ENFORCEMENT SERVICES
Enforcement Services will be provided on a case-by-case basis only upon
Jurisdiction's written consent pursuant to sub-section A, immediately above.
Enforcement Services will be provided by an employee of the Authority, and the
Authority will charge Jurisdiction $95 per hour if the Enforcement Services are
performed by a non-attorney 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 1/4 hour increments, at a maximum limit of $1,900
per BMR Unit. The Authority will submit detailed monthly billings to
Jurisdiction reflecting the Enforcement Services performed. Payment is due on
all billings net 30 days from the date Jurisdiction receives the invoice. No fees
shall be billed to Jurisdiction in excess of the above maximum without
Jurisdiction's prior written approval. Compensation for Enforcement Services
will be in addition to the compensation provided to Authority under other
provisions of this Agreement.
III. BMR PROGRAM DISPUTES.
A. LEGAL SERVICES IN THE 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
Jurisdiction within a reasonable period of time within which Authority learns of a
Dispute. In the event Authority notifies Jurisdiction of a Dispute, the Authority
may, with Jurisdiction'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
Jurisdiction reasonably informed and forward legal counsel's advice to
Jurisdiction concerning each Dispute. Any time expended by Authority
employees regarding a Dispute shall also constitute Enforcement Services and
will be billed pursuant to Section II. B., above.
B. 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 Jurisdiction), the
Jurisdiction will be briefed on the recommended course of action provided by
Below Market Rate Portfolio Management Agreement Page 4
legal counsel and the Jurisdiction shall provide general direction to Authority with
respect to each Dispute.
C. EXERCISE OF OPTION TO PURCHASE PURSUANT
TO RESALE RESTRICTION AGREEMENT:
In the event an option to purchase a BMR Unit may be exercised, the Authority
shall:
i. Notify Jurisdiction 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"); and
ii. 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 Jurisdiction in deciding on a course of action.
iii. Within ten (10) working days of receipt of the Notice, Jurisdiction shall
provide written instructions to the Authority directing the Authority to (1)
exercise the Option, (2) assign to Jurisdiction the right to exercise the
Option to purchase the BMR Unit with Jurisdiction assuming
responsibility to enforce the Resale Restriction Agreement and Deed of
Trust and Security Agreement, or (3) file a Notice of Abandonment.
If the Jurisdiction requests that the Authority exercise the Option, the Authority
shall :
iv. Utilize the funds collected through re-sales of BMR Units within
Jurisdiction, if any, to purchase the BMR Unit that is subject to the Notice;
or
v. Utilize Authority's line of credit if Authority determines it would not
interfere with Authority's operations; provided, however, Authority shall
be reimbursed by Jurisdiction such amount that Authority contributes
toward the exercise of an option, which 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.
Jurisdiction shall furnish to Authority a short-term loan in such amount as needed
by Authority to exercise an option if Authority is unable to exercise such option
pursuant to sub-sections iv. or v. of this Section III.C.
IV. BROKERAGE FEES.
Up to 6% of the total sales price of each BMR Unit will be payable to a broker /
agent and to the Authority. The precise distribution of the 6% will be dependent
Below Market Rate Portfolio Management Agreement Page 5
on whether there is dual representation of the BMR Unit buyer and seller by an
agent / broker. The Authority's portion of the 6% will be used to cover
Authority's services in connection with each sale of a BMR Unit, and will be in
addition to the compensation provided to Authority under other provisions of this
Agreement.
V. BMR PROGRAM HOME OWNER FEES TO AUTHORITY.
A. BMR Program Lottery Application Fee - Each person that applies to participate
in the BMR Program shall pay to the Authority an annual fee of $25 for the
calendar year, and it is payable at the time an application is submitted. This fee
entitles the applicant to obtain information about the BMR Program, request pre-
qualification, lottery inclusion based on the family composition, and limited
assistance in the purchase process. If the applicant has completed a First Time
Homeownership Counseling Workshop from a HUD-approved provider prior to
applying for the Lottery, the $25 fee will be waived.
B. The Authority shall charge owner of a BMR Unit a fee of $50 for preparing a
BMR Resale Price valuation.
C. The Authority shall charge BMR Unit owners a fee of $50 for the evaluation and
approval of capital improvements to be added to the resale price. The fee for this
service shall be $100 if a physical inspection is required. The Authority will not
consider any capital improvement evaluation request for improvements of less
than $1,000.
D. Any fees received by the Authority pursuant to this Section V shall be irrevocably
retained by the Authority to fund the services it provides for which such fee is
charged, and will be in addition to the compensation provided to Authority under
other provisions of this Agreement.
VI. JURISDICTION RESPONSIBILITIES.
Jurisdiction shall:
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, including, but not limited to, a three-party
(among Authority, Jurisdiction, and a developer/contractor) Below Market Rate
Housing Agreement;
B. Communicate with Authority, including, but not limited to, meeting with
Authority on an annual basis to review the asset management portfolio and the
services;
Below Market Rate Portfolio Management Agreement Page 6
C. Assess and pay fees -due to Authority as required by this Agreement. The
invoiced fees and related expenses shall be paid by Jurisdiction within thirty (30)
days of Authority's submission of billings. Jurisdiction further agrees to assume
and be solely responsible for all and any payment for legal services performed on
Jurisdiction's and Authority's behalf per this Agreement.
D. Provide, or cause to be provided, access to Authority to any and all Jurisdiction
information and documentation necessary for the Authority to perform pursuant to
this Agreement, including but not limited to, documents recorded by Jurisdiction.
E. Jurisdiction hereby agrees to defend, indemnify and hold harmless Authority and
its employees, commissioners, and representatives (each an "Indemnified
Party") from and against any and all damages, injuries, claims, liability and
expense, whatsoever, including attorneys' fees, costs, and related disbursements
(collectively, "Damages"), incurred by reason of a BMR Unit, the BMR Program,
or this Agreement, except such Damages caused by the willful misconduct of
Authority. This sub-section E. shall survive termination of this Agreement.
VII. BMR RENTAL PROGRAM MONITORIING.
The Authority can provide monitoring services for the Jurisdiction's BMR rental
units for an additional fee. Monitoring services include review of Tenant Income
Certifications and Certificates of Continuing Compliance provided by a property
management company. The Authority will provide these services upon Jurisdiction's
written request to provide rental monitoring services and Authority's written acceptance
of Jurisdiction's request.
Further, in connection with these monitoring services, the Authority has the
capacity and expertise to recalculate a schedule of maximum allowable BMR rents each
time HUD publishes a revised Area Median Income. Utility allowances would also be
revised at the same time based on the current Section 8 Housing Assistance Payment
Program schedule of utility allowances determined by the Authority.
The fee for the performance of rental monitoring is $50/per unit per year (but
may be adjusted based upon size of property and specific scope of work) and is paid
directly to the Authority by the property owner and/or property management company.
VIII. TERM OF AGREEMENT
Regardless of the term of the BMR Resale Restrictions recorded with
Jurisdiction's BMR Units, the. term of this Agreement shall be for five (5) years from the
date of this Agreement, and will automatically renew for additional two (2) year terms,
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 or any renewal
term.
IX. MISCELLANEOUS
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a. INTEGRATION CLAUSE
This Agreement constitutes the entire agreement between the parties to this
Agreement with respect to the subject matter of this Agreement, and there are no other
terms, obligations, covenants, representations, statements, or conditions except as set
forth in this Agreement. No change or amendment to this Agreement will be effective
unless in writing and signed by the parties to this Agreement. Failure to insist upon strict
compliance with any term or provision of this Agreement will not be deemed to be a
waiver of any rights under a subsequent act or failure to act. This Agreement specifically
supersedes all prior agreements between the parties.
b. CONSTRUCTION
The parties to this Agreement have been represented by counsel in the negotiation
and preparation of this Agreement, and this Agreement will be construed according to its
fair language. The rule of construction to the effect that ambiguities are to be resolved
against the drafting party will not be employed in interpreting this Agreement.
c. COUNTERPART ORIGINALS
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same
agreement. Facsimile or PDF copies of signed signature pages shall be binding originals.
d. SEVERABILITY
In the event that for any reason one or more of the provisions of this Agreement
or its or their application to any person or circumstance is held to be invalid, illegal, or
unenforceable in any respect or to any extent, such provisions will, nevertheless, remain
valid, legal, and enforceable in all other respects and to such extent as may be
permissible, and, in addition, any such invalidity, illegality, or unenforceability will not
affect any other provision hereof, but this Agreement will be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
e. NOTICES
Any notice or communication required or permitted under this Agreement must
be sent by e-mail (provided delivery is confirmed) or U.S. Mail (certified only) return
receipt requested pursuant to the addresses set forth immediately below, or at such other
addresses as shall be designated in writing by either party to the other in accordance with
this Section. Such notice will be deemed to be given when received.
Below Market Rate Portfolio Management Agreement Page 8
Authority: Housing Authority of the County of Marin
Attention: Executive Director
4020 Civic Center Drive
San Rafael, CA 94903-4173
Jurisdiction: Town of Tiburon
Attention: Town Manager
1505 Tiburon Blvd.
Tiburon, CA 94920
IN WITNESS WHEREOF, the Housing Authority of the County of Marin and the
Town of Tiburon, 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 Town of Tiburon:
Margaret C an, Town Manager
For the Housing Authority of the County of Marin:
Ron Millard, Chief Financial Officer
DATE
DATE
APPROVED AS TO FORM
Approved as to Form:
County of Marin Housing Authority Counsel
ANN DANFORTH
TOWN ATTORNEY
TOWN OF TIBURON
END OF AGREEMENT
Below Market Rate Portfolio Management Agreement Page 9