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Reso 116-2008
RESOLUTION NO. 116-~;008 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING AN AMENL)ED AND RESTATED AFFORDABLE HOUSING AGREEMENT `vVl[TH SUMMERHILL HOMES, LLC FOR THE PARK STATION .PROJECT WHEREAS, on October 25, 2007, the City and SummerHill Homes, LLC, a California limited liability company ("Developer") entered into an Affordable Housing Agreement ("Affordable Housing Agreement") for the Park Station project ("Project") pursuant to which Developer is required to designate 20 of the 99 condominiums in the Project as below market rate units ("BMR Units"); and WHEREAS, subsequent to the execution of the Affordable Housing Agreement, the local housing market has experienced a severe and sudden downturn. The downturn has resulted in a significant decrease in the value of housing in the area, creating unanticipated difficulties in selling units in the Project, including the Below Market Rate Units. The downturn in the housing market has been coupled with unusual problems in national and local credit markets, making it difficult for home buyers to obtain lending and for developers to finance; or refinance projects; and WHEREAS, Developer desires to move forward wi1.h the Project and to supply affordable housing to the City; and WHEREAS, In light of that highly unusual combination of economic circumstances describe above, the Developer has requested, and City has agreed, to amend the Affordable Housing Agreement to permit Developer to provide 15 BMR Units and to pay an in-lieu fee in the amount or $400,000 instead of providing 20 BMR Units; and WHEREAS, the City Attorney has prepared an Amended and Restated Affordable Housing Agreement ("Amended Agreement") with Developer, which is attached to this resolution. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco, does hereby: Approve the Amended Agreement substantially in the form attached to this resolution.. 2. Authorize the City Manager to execute the Amended Agreement; to make revisions to the Amended Agreement, with the advice of counsel, which do not materially or substantially increase the City's obligations thereunder; to sign all documents; to make all approvals and take all actions necessary or appropriate to carry out and implement the intent: of this Resolution. * ~ I hereby certify that the foregoing Resolution was re~;u;~arly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the 19t" day of November, 2008 by the following vote: AYES: Councilmembers Mark N. Addiego Richard A. Garbarino, Kevin Mullin, Mayor Pro Tem Karyl Matsumoto and M~~- Pedro Gonzalez NOES: None ABSTAIN: None ABSENT: None ATTEST:~,~,~ ~ /// Clerk ~~~ !~ ~D RECORDING REQUESTED BY: FEB 1 ~ 2009 DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT ~ (~;~ ~~P''~ CITY OF SOUTH SAN FRANCISCO 400 GRAND AVENUE SOUTH SAN FRANCISCO, CA 94080 WI-IEN RECORDED MAIL TO: DEPARTMENT OF ECONOMIC AND COMMUNITY DVELOPMENT CITY OF SOUTH SAN FRANCISCO 400 GRAND AVENUE 2009_0 ~ 2 ~ 73 SOUTH SAN FRANCISCO, CA 94080 F • M FEE Documentary Transfer Tax $ EXEMPT County of San Mateo City of South San Francisco Right of Way Agent 12.16pm 02/06/09 A3 ee. O Count of pages 35 Recorded in Official Records County of San Mateo ~~, Warren Slocum Assessor-County Clerk-Recorder 1111111 11111 11(11 VIII VIII IIII II(Il 1111 11111 11111 11111 111111 111111 ll lll( * Z 0~ 9 {f 0 1 z 1 7 3 A R AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND SUMMERHILL HOMES, LLC Tlus Amended and Restated Affordable Housing Agreement {'"Agreement") is entered into this stn day of January 2009 (the "Effective Date"), by and between the City of South San Francisco, a municipal corporation ("City"), and SummerHill Homes, LLC, a California limited liability company ("Developer"} as a icondition of approval of the development of the real property described in Exhibit A attached hereto (fine "Project Property"). This Agreement amends and restates in its entirety an Affordable Housing Agreement dated as of October 25, 2007 by and between City and Developer and recorded in the official records of San Mateo County as docurnent 20071 b5906 ("Affordable Housing Agreement"}. City and Developer shall be collectively referred to hereinafter as the "Parties." RECITALS WHEREAS, Chapter 20.125 of the South San Fr~ricisco Municipal Code sets forth the requirements for Inclusionary Housing ("Inclusionary Housing Ordinance"); and WHEREAS, the Developer is planning to construct condominiums on the Project Property (the "Project"} and has submitted a site develop,rnent plan for the Project; and Summer/-fill Homes, Inc. -Amended and Restated Affordable Housing Agreement Page 1 WHEREAS, the Developer is xequired by the Inclusionary Housing Ordinance to set aside twenty percent (20%) of new housing as low and moderate-income level housing ("Below Market Rate Units'; and WHEREAS, an October 25, 2007, Developer and City executed the Affordable Housing Agreement pursuant to which Developer is xequired to construct 20 Below Market Ratc Units; and WHEREAS, subsequent to the execution of the Aftardable Housing Agreement, the local housing market has experienced a severe and sudden downturn. The downturn has resulted in a significant decrease in the value of housing in the area, creating unanticipated difficulties is selling units in the Project, including the Below Market Rate Units. The downturn in the housing market has been coupled with unusual problems in national and iota] credit markets, making it difficult for home buyers to obtain lending and for developers to finance or refinance projects. Tn light of that highly unusual combination of economic circumstances, Developerhas requested, and City has agreed, to amend the Affordable Housing Agreement to permit. Developer to construct l 5 Below Market Rate Units and pay to the City an in-lieu fee in the amount of $400,000 in lien of constructing 20 Below Market Rate Units; and WHEREAS, the purpose of this Agreement is to amend and restate fihe Affordable Housing Agreement in its entirety, NOW THEREFORE, the City and the Developer agree. as follows: AGREEMENT 1. As a condition of developing and constructing ninety--nine (99) condominiums on the Project Property, Developer shall designate fifteen (15) candomi~oiums as Below 1Vlarket Rate Units, ten (10) of which shall be 1-bedroom units and five {5} of which shall be 2-bedroom units. The Below Market Rate Units shall be affordable to low- and moderate-income households guaranteed by deed restrictions or other enforceable covenants mining with the land and shall be located in the areas identified in Exhibit B attached hereto. 2. Developer shall sell the IS Below Market Rate Units to income eligible households in accordance with the following terms and conditions: (a) The sales price for the Below Market Rate I7nits shall be determined based on an assumed household size of 2 persons fora 1-bedroom unit and 4 persons fora 2- bedroom unit. (b) As of the Effective Date, Developer has received offers ("Outstanding Offers"} from low- and moderate-income buyers ("Pending Buyers} to purchase the following eight (8} Below IVlarket Rate Units ("Pending Units"}: 5ummerHill Homes, Inc. -Amended and Restated Affordable Housixtg Agx'oement Pagc 2 Unit # Unit Type Income Category (% of Median Income 101 1 BR 60-70°/a 104 2 BR 60-70% lOb 2 BR 50-60% 115 1 BR 50-60% 124 2 BR 80-90% 205 2 BR 70-$0% 214 I BR 60-70% 304 2 BR 90-100% For the purposes of the above table, `median income" shall. mean the unadjusted median income for a San Mateo County household in the San Francisco Primary Metropolitan Statistical Area, published annually by the Department of Housing and Urban Development. Within b0 days from the Effective Date, Developer shall accept each of the Outstanding Offers from the Pending Buyers for the Pending Units, and shall make good faith efforts to assist each of the Pending Buyers to secure purchase money financing to purchase the Pending Units and goad faith efforts to consummate the sale of each of the Pending Units. In the event a Pending Buyer cannot obtain purchase money financing to purchase a Pending Unit, or simply decides not to move forward with the purchase of a Pending Unit, Developer may sell the Pending Unit to another qualified buyer whose household gross income is in the upper end of the designated income category for such unit as shown on the chart above. For example, if the designated income category for a Pending Unit is 60-70% of median income, Developer may sell the Pending Unit to a buyer whose- gross household income is 70% of median income. (c) The number of bedrooms and designated income categories for the remaining seven (7) Below Market Rate Units shall be as follows: Unit # Unit Type Income Category {% of Median Income 216 1 BR ~ b0% 210 I BR 80% 202 1 BR 90% 313 1 BR 90% 121 1 BR 100% 220 1$R 120% 223 1 BR 120% SummerHill Homes, Inc. -Amended and Restated Affordable Housing Agreement Page 3 ' ~ For the purposes of the above table, `median income" sha1.1 mean the unadjusted median income for a San Mateo County household in the San ~raacisco Primary Metropolitan Statistical Area, published annually by the Department.. of Housing and Urban Development. {dj The Below Mazket Rate Units shall be located on the Project Property, within close proximity to the El Camino Corridor and the Downtown. The Developer and the City acknowledge this is an ideal area for such'Below Market Rate Units as it is in close proximity to and has access to employmenfi opportunities, urban services and transportation facilities. (e) Occupancy of the Below Market Rate Units shall be established concurrently with occupancy of the market rate units located on the Project Property. This regturement shall be effective as of the date the first unit is occupied on the Project Property. This requu-ement for the Below Market Rate Units shall re~rnain in effect even in the event all market rate units on the Project Propertyr become unoccupied. (f} Developer shall require each buyer of a below Market Rate Unit to execute a Resale Restriction and Right of First Refusal Agreement substantially in the form attached hereto as Exhibit C {"Resale Restriction aA.greement'~. The Resale Restriction Agreement shall be recorded against each. parcel containing a Below Market Rate Unit upon close of escrow of sale for such Below Market Rate Unit. The Below Market Rate Units shall remain restricted and affordably to the designated income group for a term of fiifly-five (5~) years, commencing on the date each Below Mazket Rate Unit is sold. The restrictions shall apply to all subsequent buyers. (g) Developer shalt work with the City and/or the City's First Time Homebuyer Administrator to identify and qualify eligi~e buyers for the Below Market Rate Units. At the tune of sale of each Below Market Rate Unit, Developer shall pay an admuustrative fee to reimburse the City for all adminis~rative/processing costs and fees . incurred in processing the sale of the Below Market Rate Units, which may include First Time Homebuyer Administrator fees and costs and processing fees for First Time Homebuyer Loans by the City to eligible buyers. 3, Withinninety-five {45) days following the Effective Date, Developer shall pay to City in-lieu fees in the amount of $400,000. 4, Notwithstanding Section 2, within 60 days from the Effective Date, Developer may elect to convert the Project from afor--sale project to a rental project. Developer shall provide City with timely notice of its election to convert the Project to a rental project. Tn the event Developer elects to convert the Project to a rental project, the following terms and conditions shall apply: (a} The number of bedrooms and designated income categories fox the rental Below Mazket Rate Units shall be as set forth in Section; 2(a~abvve. SummerHilI Homes, Inc. -Amended and Restated A$'ordable Hou$ing Agi~eement Page 4 L (b) The rental price for fihe Below Market Rate Units shall be determined based on an assumed household size oft persons for ~ 1-bedroom wait and 4 persons for a 2 bedroom unit. (c} Developer shall provide the Pending Buyers with the opportunity to rent the Pending Unit upon which they made an offer. If a Pending Buyer declines to rent the Pending Unit upon which he or she made an offer, Devveloper may rent such Pending Unit to an eligible household whose gross income is in the upper end of the designated income category for such unit. (d} Developer shall execute a Regulatory A~.greement for the Project, which shall be subject to City Council approval and recorded against the Project Property. {e} The condominium map shall remain on the Project Property. In the event Developer or its successor in interest decides to convect the Project from rental to for- sale, upon sale of the first unit in the Project, the Project shall automatically revert back to and be governed by the 2007 Affordable Hauling Agreement {t} In the event the Project converts from rental to for-sale pursuant to paragraph {e) above, Developer or its successor in interest shall provide those households then occupying the Below 1Vlarket Rate Units descn~ed in Z - c with a first right of refusal to purchase their respective Below Market Rate Unit an terms approved by the City in writing provided that such households satisfy the income and other eligibility requirements for purchase of a Below Market Rate Unzt. ~. Developer shall indemnify, defend with counsel selected by the City, and hold harniless the City and its off vials, officers, employees,. agents, and volunteers from and. against any and alI losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or prdinance related to the implementation of this Agreement and/or the sale or redtal of the fifteen (15) Below Market Rate Units. 6. Developer shall pay an administrative fee to reimburse the City for all administrative pprocessing costs and fees incurred in processing the affordable housing plan, which may include reasonable attorney's fees and cost, and implementing the requirements of the Inclusionary Housing Ordinance. J~eveloper shall also reimburse City for the cost ofretaining Keyser Marston Associates to verify Developer's loss calculations. 7. This Agreement shall run with the Project Property and shall be binding on the Parties hereto and their successors and assigns, This Agreement shall be recorded on the Pmject Property on or as soon as practicable after the effective Date. 8. Developer and subsequent buyers shall provide City, or its assigned, a first right of refusal in the foam attached hereto as bit C to purchase the Below Market Rate SuinmerHill Homes, Inc. -Amended and Restated Affordable Horsing Agreement Page 5 Units if any of the individual units, are offered for sale gat any point during the fifty-five {SS) year affordability period. The notice of offer to sell a Below Market hate unit shall be submitted in writing to the Director of the Departm~unt ofEconamic and Community Development. Within thirty (30) days of its receipt, the City, or its assigned, shall indiea#e its intent to exercise the first right of xefusal fair the purpose of providing affordable housing, and close escrow within ninety (90~ days. 9. All obligations relating to a Below Market Rate Unit shall transfer from Developer to the buyer of such unit and its assigns upon sale of such Below Mazket Rate Unit. Upon fihe sale by Developer of alI Below Market'Rate Units, Developer shall be released from, and shall have no further obligations under this Agreement Such release shall be effective upon the sale of the last Below Market Rate Unit and shall not requve any further action ar documenta#ion by any pasty to this Agreement. 10. Any amendments to this Agreement shall be processed in the same manner as an original application for approval pursuant to Section 20,125.150 of the South San Francisco Municipal Code. Nothing, however, shall prevent the body granting final approval of the project development, from modifying the location and phasing of inclusionary housing as a condition of approval for the $rojeet. 11 _ The laws of the State of California shall govern this Agreement. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Sou Mateo or in the United States District Court for the Northern District of California. 12. If a party to this Agreement brings any action, irrcIuding an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any ether relief to which that party maybe entitled. The court may set such fees in the ramie action or in a separate action brought for that purpose. 13. 1f a court of competent jurisdiction finds or rubs that any provision of this Agreement is invalid, void, ar unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 14. Any notice or demand shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Developer: SummerHill Homes, LLC, a California Limited Liability Company 777 California Avenue .Palo Alto, CA 94304 SummerHill Homes, Inc. --Amended and. Restated Affordable Housing Agreement Page 6- Attn: Joseph Head Telephone: (b50) 857-0122 Facsimile: (650} 857-1077 City: City of South San Francisco--City Clerk 400 Grand Avenue South San Francisco, CA 94080 15. Notwithstanding any previous provision of this ;Agreement, the terms of this Agreement shall be interpreted in accordance with the provisions of Chapter 20.].25 of the South San Francisco Municipal Code. Y 6. This Agreement maybe executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one instrument. 17. This Agreement, including Exhibits A through C attached hereto and . incorporated herein, represents the entire and integrated agreement~between City and the Developer with respect to the subject matter hereof, anc~ supersedes all prior negotiations, representations or agreements, either written or ore! with respect thereto. SIGNAT'fI.RES OIV P'O.LLOWING.PAtGB. SurumerHill Homes, Ina. - AmeAded aad. Restated Affordable Housing .Agreement Page 7 IN'WITNESS THEREOF, the parties have executed this Agreement as of the date first written above. O~tTNER: CITY: SurnmerHill Haines, L,~C, a Caiifomia. CITY OF SOUTH SAN FRANCISCO, a limited Liability cor~}~, y municipal corporation r~es t ~` . N!ag~e, .. Manager By: bob ,1~~NA~a ~ . Its: Gip _ APPROVED AS TO FORM: .~. ~t_ '- .~ ~ ' ., ,~ ~, ~r . 'Attested By: ~' Stevan.T: ll~Iattas, City Attorney ppJJJ~i. ity Clerk 7 ~~. ; t SummcrHill Homes, Iac. --Amended and Restated Affordable Rousing Agreement Pcge $ State of California } County of~~~ct C.1~~~ ) On `~n ~ 'inrc.- ~ . `~(~C'~~' before me,\Jrmo,arn l~mr~n N~k~;~rt,~~ubl;c personally appeared ~r~t-r'~~- ~rrrrl o~~t lla, xa ~~rrlrl, who proved to me an 'the basis of satisfactory evidence to be the person(s) whose name{s) xs~7are subscribed to the within instrument and acknowledged to me that isefs~xelthey executed the same in I~ltheir authorized capacity(ies}, and that by l~}u~their signature(s) on the instrument the person(s), or the entity upon behalf of which the persons} 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. C1 Sitnature ~ ~ ~ l ~ ~-~. ~_ Camri~tion /~ 1743~6~ . tio4afy rubflc~ • Caltlomla Contra Cotta County ~~~~~~~~~ + ,f (Seal) State of California ) County of~i~ Y'ncc~e a } On ~ahua c ~ ~, oZ.oD~ before me,~e p'G~~'o /`1d~`Q ~ personally appeare a who r p oved to me on the basis of satisfactory evidence to be t Ie person~wvhose name(s~-is/a~e-subscribed to the within instrument and acknowledged to me that he/sb~ftl~ executed the same in his/l~ue~eir authorized capacity(ies~f; and that by his/ly~r}th~i~-sitgn~turG(-sj-on the instnunent the personae); or the entity upon behalf of which the person(}-acted, executed the instrument. I certify under PENALTY OF PERJURY under the 1 the foregoing paragraph is true and correct Commisilon ~ 186~7d7 Notary Public - CoWbnNa WITNESS my hand and official seal. ~, ~~ ~~y MyCvmm. ~Ma~rZ1.2Q1 Signatur (Seal) E=hibit A Project Property Real pmp~ty in tits pty of South Sari Ftandsco, County of San Mateo, State of Ca~ifomia, described as FnUotn-s: PARCEL ONE: BEGINNING AT A POINT ON THE NORTHEASTERLY LINE DF EL CAMINO REAL, AS DESCRIBED IN A DEED TO COUNTY OF SAN MATED, RECORDED JULY 30, 193.3 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN MATED COUNTY, STATE OF CALIFORNIA IN 80OK 226 OF D~p5 AT PAGE 470, SAID POINT' BEING THE MOST SOUTHERLY CORNER OF THE PARCEL, OF LAND DESCRIBED IN 'THE DES FROM PHIIOMENE ADELIW~ fQELY~ A WIDOW, TO PACIFIC GAS AND ELECTRIC COMPANY, A CALIFORNIA CORPORATION, RECORDED MARCH 17, 1954 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN MATED CaOUNTY, STATE OF CALIFORNIA, IN BOOK 2553 OF OFFICIAL RECORDS AT PAGE 36 (FILE N0.43Z07-L); THENCE FROM SAID POINT OF BEGINNA~tG, ALONG THE 50UTHEASTERLY BOUNIDARY LINE OF SAID PARCEL NORTH 410 20' 20" EAST 395 FEET, MORE OR LESS, TO THE SOUTHWESTERLY BOUNDARY LINE OF THE LAND5 FORMERLY BELONGING TO THE MARKET STREET RAILWAY COMPANY, AND AS DESCRIBED IN THE DEED FROM HENRY MILLER, ET AL, TO W.D.K. GIBBON, RECORDED DECEMBER 6,1900 IN THE OFFICE OF THE COUNTY RECOitpER Of SAID SAN MATED COUNTY, STATE OF CALIFORNIA IN BOOK 87 OF DEEDS AT PAGE 3161; THENCE SOUTHEASTERLY ALONG THE LAST MENTIONED BOUNDARY LINE 120,37 FEET, MORE OR LESS, TO THE NORTHWESTERLY CORNER OF THE PARCEL DESCRIBED IN THE DEED FROM JAMES L. CASEY, ET AL, TO THEODORE H. PAOLI, ET AL, RECORDED AUGUST 2fi, 1955 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN MATI`O COUNTY, STATE QF CALIFORNIA IN BOOK 2864 OF OFFICIAL RECORDS AT PAGE 726 (FIL.E NO.80918-Mj; THENCE 50UTH 410 20' 20" WEST ALONG THE NORTHWESTERLY BOUNDARY LIWE OF THE LAST DESCRIBED PARCEL A DISTANCE OF 402.02 h~ET, MORE OR L,E55, TO THE NORTHEASTERLY (BOUNDARY LINE OF EL CAMINO REAL, AS HERQNBEFORE REFERRED TO; THENCE ALONG SAID NORTHEASTERLY LINE OF EL CAMINO REAL NORTH 470 23' WEST izOS3 FEET, MORE OR LESS, TO TH>; POINT OF SummcrHill Hames, Inc. - Amended and Restated Affordable Housing Agreement Page A 1 BEGINNING. PARCEL TWO: A PORTION OF THE RIGHT OF WAY DESCRIBED IN THE DEED FOR STATE HIGHWAY RECORDED JULY 30,1913 IN BOOK 226 AT PAGE 470, SAN MATED COUNTY RECORDS DESCRIBED AS FOLLOWS: BEGINNING FOR REFERENCE ON THE NORTHEASTERLY LINE OF THE EXISRNG STATE HIGHWAY IN SAN MATED COUNTY, ROAD 4-SM-82, KNOWN AS EL CAMINO REAL, AT THE WESTERLY CORNER OF THE PARCEL OF LAND DESCRIBED AN THE DEff} TO PACIFIC GAS AND ELECTRIC COMPANY DATED MARCH 3.6,1954 AND RECORDED IN BOOK X53 AT PAGE 36, OFFICIAL RECORDS OF SAN MATED COUNTY; THENCE ALO~iG SAID NORT7ifASTERLY LINE, SOUITi 470 13' 00" EAST, 18Q.44 FEET TO THE PROPERTY ~TNf COMMON TO THE LANDS, NOW OR FORMERLY, OF HARMONIOUS HOLDING AND OF PACIFIO GAS AND ELECTRIC COMPANY AND THE TRUE POINT OF COMMENCEMENT; THENCE ALONIG THE SOUTHWESTERLY PROLONGATION OF SAID COMMON LINE, SOUTH 41o ZO` 3C1" WEST, 41.41 FEET'; THENCE SOUTH 35p S6' 30" EAST, 123.39 FEETTO THE SOUTHWESTERLY PROLONGATION OFTHE LINE COMMON TO THE LANDS, NOW OR FORMERLY OF HARMONIOUS HOLDING AND OF BRUNO BRASESCO ET AL; THENCE ALONG LAST SAID PROLONGATOD LINE, NORTH 41a 20' 30° EAST, b5.$4 FEET TO SAID NORTHEASTERLY LINE OF fL CAMINO REAL; THENCE ALONG LAST SAID LINE NORTH 47e 13' 00" WE5T,120,40 FEET TO THE TRUE (POINT OF COMMENCEMENT. APN: 010-292-26Q JPN 014-029-292-02 A & O1Q-029-29211.01 A (P'3N.) PARCEL THREE: "NEW PARCEL A" PER Ci7Y OF SOUTH SAN FRANCISCO LOT LINE ADJUSTMENT NO.33, RECORDED APRIL 12, 2006 AS DOCUMENT NO. ZOD6-053449, SAN MATED COUNTY OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BANG A PORTION OF PARCEL D-3366-1 DESCRIBED IN THE DEED RECORDED AS DOCUMENT N0. 98-148689, A PORTION OF PARCEL D-3385-1 DESCRIBED IN THE DEED RECORDED AS DOCUMENT NO. ZOb3-082012 AND A PORTION OF PAFtCLL D-3102-1 DESCRIBED IN THE FINAL ORDER OF CONDEMNA'iION RECORDED AS DOCUMENT NO. 2D04-025111, SAN MATED COUNTY OFFICIAL RECORDS, AND MORE PARTICULARLY DESCRIBED AS FDL.ROWS: BEGINNING AS THE MOST SOUTHERLY CORNER OF SAID PARCEL D-3388-1; THENCE ALONG THE 50UTHWEST'ERI.Y LINE OF SAID PARCEL D-3388-1, NORTH 34°47'53" WEST 75.67 FEETTO THE BEGINNING OF A NON TANGENT CURVE; THENCE ALONG A CURVE TO THE RIGHT, THE RADIAL POINT OF WHICH 8EAR5 SOUTH $8°52'13" EAST, THROUGH A CENTRAL ANGLE OF S3°0252" HAVING A RADIUS OF 39.50 FEET, AN ARC DISTANCE OF 36.57 FEET' TO A POINT OF REVERSE CURVATURE; 'THENCE ALONG A CURVE TO THE LfFTTHROUGH A CENTRAL ANGLE OF 11°43'02" HAVING A RADIUS OF 60D.50 FEET, AN ARC DISTANCE OF 17.x,80 FEEL; THENCE TANGENT TO THE PRECEDING CURVE NORTH 42°2737" FAST 164.92 FEET TO THE BEGINNING OF A TANGENT CURVE; THENCE ALONG A CURVE TO THE LEFT THROUGH A CENTRAL ANGLE OF 35°04'58" HAVING A RA©IU5 OF 120.50 FEET, A DISTANCE OF 73.78 FEET TO A POINT OF COMPOUND CURVATURE; 5ummerHBI Homes, Inc. -Amended and Restated Affordable Housing Agreement Page A 2 THENCE ALONG A CURVE TO THE LEF3-THROUGH A CENTRAL ANGLE OF Z6°56'38" HAVING A RADIUS OF 95.54 FEEi', AN ARC DISTANCE OF 44.91 FEET ~'0 A POINT OF REVERSE CURVATURE; THENCE ALONG A CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF 62°32'17" HAVING A RADUIS OF 29.50 FEET, AN ARC DISTANCE OF 32.20 FEET; THENCE TANGENT TO THE PRECEDING CURVE NORTH 42°58'18" EAST 33.73 FEET TO A POINT flN THE NORTHEASFF-RLY BOUNDARY OF SAID PARCEL D3102-i; THENCE ALONG SAID NORTHEASTERLY BOUNDARY OF PARCEL D-3102-1, SOUTH 48°15'12" EAST 122.32 FEEF; THENCE LEAVING SAID NORTHEASTERLY BOUNDARY OF PARCEL D-3102-1, SOUTH 39°38'12" WEST 60.04 FEET TO A POINT QN THE SOUTHWESTERLY BOUNDARY OF SAID PARCEL D-3102- 1; THENCE ALONG SAID SOUTHWE5 CERLY B~}UNDARY DF PARCEL. D-3102-1, SOUTH 48°15'12" EAST 15.65 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL D-3368-1; THENCE ALONG THE 50UTHEA5TERLY LINE OF SAID PARCEL D-3368-i, SOUTH 42°27'37" WEST 122.4U FEET TO 'THE MOST EASTERLY CORNER OF THAT CERTAIN PARCEL D-3388x 1 DESCRIBED IN THE DEED RECORDED AS DOCUMENT N0. ?1003-082015 OF OFFICIAL RECORDS OF SAN MATEO COUNTY; THENCE COUNTERCLOCKWISE AROUND THE BOUNDARY OF SAYD PARCEL D-3388X-i THE FOLLOWING CAURSE5 AND DI51'ANCES; 1) NORTH 47°32'23" WEST 59.19 FEET; 2) SOUTH 4Z°2737" WEST 94.66 FEET; AND 3) SOUTH 47°3223" EAST 59.19 FEET TO A POINT ON SAID SOUTHEASTERLY LINE OF PARCEL D-3386-1; THENCE ALONG SAID 50UTHFA5TERLY LINE OF PARCEL D 3388-1, SOUTH 42°27'37" WEST 221.12 FEET TO THE POINT OF BEGINNING. PTN APN 01{3-292-350 !=TlV 3PN 010-029-292-1YA,1.2.O1.0iA, 11.41A, 12.O1A, 11.01.02A; PTN APN 010-292 330 PTN JPN Q10-029-292-12A; AND PTN APN 093-330-030 P?N ]PN 093.033- 338-02A SummerHill Homes, Ina. -- Amcnded and Rcstated Affordable Housing Agreement Page A- 3 Fxbuibit B -1.-~ _ „ `c` k'k?ice, .'-x ~~~ ~ ~w ~ aa~~ ~ ~~ .a. •~ 'cl~.nTI~L n SS~~ r ~, ~ _ y ~ ~~a ~ ~' w ~ l~ J ' ~ " ~. ~ tJ ~ ~ ~ ~ ~~e ~ u~ . ~x ,~• ~ f_ M f /~ j o o ~~ .) y r1 J It `4 L ~ i 1y~.-.w Sr ,~ d` H W ~I ~ i . • -r.- r~ ~ ~ } ~ 1 • _ e e . ±~ _ +~~.+ ~ a + ~ 1 ~..... i ~"" u,s uGu •~ ~ F~ s C! P P W y t L -~ ~ t .-r.~-. .. ~,,. ~~..... 1 ~ ~ ~r ~ m ~ ~ ~ ~ ~ ~ ~ ~~ ~ ,. ~ . S ' ' -r ° - ---....-- i3 _ ~" ~~ ~ ~ ' --- -~• ~ ~ ~ ! ~~ te t.."`a^ .1~ ~ ~ N _ _ ,.,t .--r 4~ ~ ~ ~Q i~/~t-~V 1 9~ J 0 indicates designated BMR Units except that Units # I08, 207, 209, 308 & 321 aro no longer designated BMR Units and are not subject to the Amended and Restated Affordable Housing Agreement SumnzcrHill Homes, bac, -Amended and Restnied Affordable Housing Agreement Page B- 1 ' Exhibit C b'orw of Resale Restriction and Right of First Refusal Agreement Recording requested by and when recorded mail to: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attention: City Manager F3~MPT FROM RECORDING FEES PER GOVERNMENT CODE &66103.27383 Space above this line far Recorder's use. RESALE RESTRICTIQN AGREEMENT ANIl OPTIUN TO PURCHASE owner. Property Address: South San Francisco, CA Name of Development: NOTICE: THERE ARE RL'STRICTIONS` ON Tl~E SALE OF TAE PROPERTY YO U ARE BUYING. EXCEPT' FOR A TRANS.F'ER 7"O CTl'Y OF SOUTIR' -SAN FRANCISCO FOLLO Ff'ING .EXERCISE Off' IT S OPTION TO FURC.HASE, 7LiE PROPERTY MAp ONLY RE SOLD TO AN ELIGIBLE H'DUSEHOLD .AT A PRICE NOT' TO EMCEED TSE ADJUSTED RESALE PRICE A~D'TC.H LS CAPPED AT A.NAFFORDA,~LE IIDUSINC OUST. ALL LIII'RO~'MEN?'S' TO TEE PROPERTYAND ALL ,LOANS SECURED .8I' THE PROPERTYREQITIRE PRIOR ~YRITTEN APPROVAL FR01bl Tom' CITY OF SDUT~I S.AN FRANCLSCD. This Resale Restriction Agreement and Option to Purchase ("Agreement") is entered into as of this- .200 (#he "Effective Date"), by and between the City of South San Francisco, a municipal corporation ("City") and , [an individual/ a married couple] ("Owner"). City and Owner are collectively referred tv hereinafter as the "Parties." RECITALS A. Owner intends to purchase the property located at in the City of South San Francisco and more particularly descnbed in Exhibit A attached hereto and incorporated herein by reference {the "Property"}. B. The Property was constructed pursuant to Chapter 20.125 of the South San Francisco Municipal Code ("Xnclusionary Urdinance'~, which requires developers to set aside 20% of new housing as housing affordable to low and moderate-income houselZOlds, and the Affordable Housing Agreement {"AHA") dated as of . ZOa by and between the City and {the "Developer"}. C. Pursuant to the AHA, Developer is required to sell the Property to an Eligible Household (defined below) at a price that will result in an Affordable Housing Cost for the Eligible Household and to record this Agreement against the Property. D. The purpose of this Agreement is to maintain and preserve the Property as housing affordable to Eligible ,Households for the longest feasible time and to prevent initial and subsequent purchasers from using the Property for purposes incompatible with the Inclusionary Ordinance and realizing unwarranted gains firom sales of the Property at unrestricted prices. E. In consideration of the economic benefits to Qwner resulting from the purchase of the Property at a below market price, this Agreement restricts the resale price of the Property and specifies, among other requirements, that the Property may only be transferred to Eligible Households. This Agreement also provides the City an option to purchase the Property at a restricted price. NUW THEREFU~, in consideration of the benefits received by the Owner and the City hereunder, Owner and City agree as follows: 1. Definitions. The following temps shall have the meanings set forth in this Section. Additional terms are defined in the Recitals and text of this Agreement. {a) "Adjusted Resale Price" is defined in Section 15. (b) "Affordable Housing Cost" shall have the meaning ascribed to such terra in California Health and Safety Code Section 50052.5 or successor provision and the regulations promulgated pursuant thereto. (c) "Area Median iucome" or "ANH" means the area median income for San Mateo County, California, adjusted for household size, published by the U.S. Department of Housing and Urban Development ("HUIa") pursuant to the United States Housing Act of 1937, as amended. If HUD ceases to make such determination, Area Median Income shall be the median income calculated pursuant to reasonable methods of median income calculation developed by the City. (d) "~asc Resale Price" is defined in Section 5. (e) "City Option" is defined in Section $. (f) "Eligible Household" means a household whose Gross Income does not exceed percent ~~%) of the unadjusted Area Median Income. {g) "Gross Income" shall have the meaning ascn'bed to such term in Section 6914 of Title 2S of the California Code of Regulations or any successor thereto. {h} "Notice of Iuten# to Transfer" is defined in Section 1 fl. {i) "Principal Residence" means the place where a person resides on a substantially full-time basis during not less than ten (10) months per year. (j) "Term" means a period of fifty-five (55} years from the Effective Date. {k) "Transfer" as defined in Section 6. 2. Principal Residence Requirement. The Owner covenants and agrees that Owner {i) shall occupy the Property as the Owner's Principal Residence throughout #be period of time that Owner owns tlye property, and (ii) shall not rent or lease the Property or portion thereof during the Term of this Agreement without the prior written consent of the City. Any lease or rental in violation of the provisions of this Agreement shall be prohibited and void. Upon request of the City made from tune to time, Owner shall provide a written certification to the City, in form provided by the City, that Owner is occupying the Property as Owner's Principal Residence and that Owner is not renting or leasing the Property to another party, and shall provide such documents and other evidence as City may reasonably request to verify compliance vtrith this Section. 3. AffordabilitY,Restrictions. Owner, by and for itself and any successors in interest, hereby covenants and agrees that the Properly shall be sold only to Eligible Households at a price not to exceed the Adjusted Resale Price (as defined in Section 1 S and tha# during the Term of this Agreement alI of the requirements and restrictions of this Agreement shall apply. 4. Maintenance. a. The Owner shall maintain the Property, including landscaping, in good repair and in a neat, clean and orderly condition (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, Hiles, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, end officials. Owner shall not commit waste or permit deterioration of the Property, and shall make all repairs and replacements necessary to keep the Property in good condition and repair. Failure by the Owner to maintain the Property shall constitute a default under this Agreement for which the City may exercise the remedies provided to City hereunder, including without limitation, the City Option to purchase the Property pursuant to Section 8 below. b. In the event that the Owner breaches any of the covenants contained in this Section ~ and such default continues for a period of ten (10} days after written notice from the City with respect to graffiti, debris, waste material, and general maintenance or thirty (30} days after written notice from the City with respect to landscaping and building improvements, then in addition to any other remedy City may have at law or in equity, City shall have the right to enter the Property and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, the City shall be permitted (but is not required} to enter the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, which amount shall be promptly paid by the Owner to the City, plus an administrative charge equal to fifteen percent {15%) of the cost of such work upon demand. 5. Insurance. The Owner shall maintain a standard all risk property insurance policy equal to the replacement value of the Froperty naming the City and its elected and appointed officers, officials, employees, representatives and agents as additional insureds. The Owner shall provide the City with evidence of required insurance coverage upon City's request b. Transfer. a. Restrictions on Transfer. Except as provided in Section 6(b). throughout the Term of this Agreement, the Property may only be sold or otherwise conveyed #o Eligi'ble Households at a price not to exceed the Adjusted Resale Price defined in Section 15 below. There shall be no Transfer of the Property without the City's certification that the transferee is an Eligible Household and that the Property is being transferred at a price not to exceed the Adjusted Resale Price. "Transfer" means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Property, including, but not lirruted to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which possession of the Property is transferred and Owner retains tile, or a deed of trust. Any Transfer without satisfaction of the provisions of this Agreement is proldbited and shall constitute a default by Owner for which the City may exercise any of the remedies provided herein, including without limitation, the exercise of the City Option pursuant to Section 8 below. b. Permitted Transfers. Provided that the transferee assumes, within 30 days following written request by the City, all of Owner's duties and obligations under this Agreement pursuant #o a written assumption agreement in a form acceptable to City, or at City's election, execution of an agreement substantially similar to this Agreement, the following transfers ("Permitted Transfers") of title to the Property or of any estate or interest therein, shall not be subject to the City's prior approval, shall not trigger the exercise of the City Option, and shall not be considered Option Events: (i} a transfer to an existing spouse or domestic partner; {ii} a transfer by an Owner to a spouse or domestic partner where the spouse or domestic partner becomes the co-owner of the Property; (iii) a court ordered transfer of title #o a spouse as part of a divorce or dissolution proceeding; {iv) a transfer to an existing spouse or domestic partner of Owner or to Owner's issue by devise or inheritance following the death of Owner; or {v) a transfer by Owner into an inter vivos trust in which the Owner is a beneficiary and the Owner continues to occupy the property as his/her Principal Residence. For purposes of this section, "domestic partner" shall mean two unmarried people, at least eighteen {18) years o€ age, who have lived together continuously for at least one (1} year and who are jointly responsible for basic living expenses incurred during their domestic partnership. Domestic partners may not be persons related to each other by blood or adoption such that their marriage would be barred in the state of California. For purposes of this section, an individual shall be considered a domestic partner of Owner upon presentation of an affidavit or other acceptable evidence by Owner tv the City. c. Inheritance. In the event a Transfer occurs by devise or inheritance due to death of the Owner, the administrator of the Owner's estate or the person inheriting the Property shall provide written notice to the City of the Owner's death within thirty (30} days of the date of death and the following procedures shall apply: (i) If the person inheriting the Property (the "Inheriting Uwner") is the child or stepchild of the deceased Owner {an "Inheriting Child"), he or she shall provide the City with documentation that he or she is the child or stepchild of the deceased Owner and with income information, to be verified by the City, so that the City may determine if the Inheriting Child is an Eligible Household. If the Inheriting Child fails to provide required documentation of his yr her relationship to the Owner, or financial information, he or she shall be deemed not to qualify as an Inheriting Child andlar Eligible Household, as applicable. If the hiheriting Child qualifies as an Eligible Household, he or she shall succeed to the Owner's interest and obligations under this Agreement and new documents shall be executed between the Inheriting Owner and the City and recorded against the Property. If the Inheriting Child fails to qualify as an Eligible Household, he or she shall be required to Transfer the Property to an Eligible Household at a price not exceeding the Adjusted Resale Price, pursuant to the procedures set forth in Section 10 below and the City may exercise the City Option pursuant to Section 8 below; provided, however that the Inheriting Child may own and occupy the Property for up to a maximum of twelve {12) months provided that the Inheriting Child remains in compliance with the requirements of Phis Agreement The Inheriting Child shall not be required to occupy the Property during such twelve (I2)-month time period, but shall not rent the Property. (ii} bf the Inheriting Owner is not the child or stepchild of the deceased Owner, except as pernutted pursuant to Section bfal, the Inheriting Owner shall Transfer the Property to an Eligible Household at a price not exceeding the Adjusted Resale Price, pursuant to the procedures set forth in Section Y O below and the City may exercise the City Option pursuant to Section S below. In this event, the Inheriting Owner shall provide the City with a Notice of Intent to Transfer within sixty (b0} days of the date of death of the Owner. (iii) Failure of an Inheriting Owner to fallow the procedures and file the notices described in this Section 6 shall constitute a default under this Agreement and the City may then exercise any of the remedies set forth in Section 2 below, including, without limitation, exercise of the City Option. 7. 'sr resentation of Fact as a Material Brea h. Owner hereby declares and agrees that the financial and other information previously provided to the City for the purpose of qualifying to purchase the Property was true and correct at the time it was given and remains trae and correct as of the date of this Agreement, or, in the alternative, the financial and other information has been updated to be true and correct today. Owner fiuther understands that any material misstatement or misrepresentation shall be deemed to be a material breach of this Agreement and shall be grounds for declaring a default, terminating the Agreement, or seeking f other such relief and remedies as are appropriate under the circumstances. 8. Grant of City,Oution to Purchase; Assignment of Option. Owner hereby grants to the City an option ("City Option"} to purchase the Property at the Adjusted Resale Price upon the occurrence of an Option Event (defined in Section 9) subject to the terms and conditions contained herein. The City may assign the City Option to another government entity, a non- profit affordable housing provider or an Eligible Household. The City's assignment of the City Option shall not extend anytime limits contained herein with respect to the exercise period of the City Option or the period within which the Property must be purchased following exercise of the . City Option. In no event shall City become is any way liable to Owner, nor become obligated in any • manner, by reason of the assignment of the City Option, nor shall City be in any way obligated or liable to Owner for any failure of City's assignee to consummate a purchase of the premises or to comply with the terms of any purchase and sale agreement. ~- 9. Events Living Rise to Right to Exercise Option. City shall have the right tv exercise the City Option upon the occurrence of any of the following events (each, an "Option went"}: • a. Receipt of a Notice of Intent to Transfer (defined in Section 1 d below}; b. Any actual, attempted or pending Transfer of the Property or of any estate or interest therein, excep# as provided in Section fi(bl; e. Any actual, attempted or pending encwnbrance of the Properly, including without limitation byway of mortgage or deed of tract, or by judgment, mechanics, tax or other lien, except as provided in Section 19 below; d. Recordation of a notice of default andlor notice of sale pursuant to California Civil Code section 2924 (or successor provisions) under any deed of trust or mortgage with a power of sale encumbering the Property; e. Commencement of a judicial foreclosure proceeding regarding the Property or execution by Owner of any deed in lieu of foreclosure transferring ownership of the Property; f The occurrence of an Event of Default as described in Section 21; or g. Any violation by Owner of any provision of this Agreement. 10. Notice of Intent to Transfer: Exercise of lion. a. Notice of Intent to Transfer. If Owner desires to Transfer the Property or of aay esta#e or interest therein, Owner shall notify City in writing to that effect (the "Notice of fntent to Transfer"). The Notice of Intent to Transfer shall state the street address of the Property; Owner's full name or names; the address and telephone number at which Owner shall be contacted if not at the Property; and shall be delivered personally or deposited in the United States mail, postage prepaid, certified-return receipt requested, addressed to the City of South San Francisco, 400 Grand Avenue, South San Francisco, CA 94080, Attn: City Manager. The Notice of Intent to Transfer shall be in substantially the form attached hereto as Exhibit . In the case of a proposed sale of the Property to a prospective purchaser, the Owner shall submit to the City, together with the Notice of intent to Transfer, a copy of the prospective purchaser's income certification, a list of all assets owned by the prospective purchaser, and other financial information reasonably requested by City, in a form approved by the City, along with the income certification to be provided to any lender making a loan to the prospective purchaser. The City may require the prospective purchaser to provide documentation evidencing and supporting the income and other financial information contained in the certifications. b. Notice of Exercise. Upon the occurrence of any Optioa Event, the City may exercise the City Option by delivering notice ("Notice of Exercise") to Owaer of its intent to exercise such City Option pursuant to the terms of this Agreemen#. The Notice of Exercise may be in the farm attached hereto and incorporated herein as Exhibit C, yr in such other farm as the City may from time to time adopt The Notice of Exercise shall be delivered by deposit in the United States mail, postage prepaid, fiarst-class, addressed to Owner at the Property, or at such other address as may be indicated on the Notice of Intent to Transfer, and delivery shall be deemed effective five (S) calendar days following the date of deposit. If the Option Event relates #o the potential foreclosure of a mortgage under S,~etions 9(d) or (elt then the City shall also deliver the Notice of Exercise to the mortgagee or beneficiary under such nr-ortgage, at such mortgagee's or beneficiary's address of record in the O~.ce of the Recorder of San 1Vrateo County. c. Notice of Consent to Transfer. If the City decides not to exercise the City Option, the City may give its consent to the occurrence of the Option Event ("Consent to Transfer"}. Tf the Option Event involves a proposed sale of the Property to a prospective purchaser, the City's consent shall be conditioned upon (i} the proposed purchaser's qualification as an Eligible Household; (ii} the sale of the Property at a price not to exceed the Adjusted Resale Frice; {iii) the proposed purchaser's execution of a Disclosure Statement in the form attached hereto as Exhibit D or such other form or farms as may be promulgated by the City; and (iv) the proposed purchaser's assumption of Owner's duties and obligations under this Agreement pursuant to a written assumption agreement in a faun acceptable to City, or execution of an agreement substantially sinn-ilar to this Agreement, in a farm acceptable to City, within thirty {30) days after the Consent to Transfer has been delivered to Owner. If the prospective purchaser (i) fails to qualify as an Eligible Household, (ii) fails to execute and deliver the Disclosure Statement to the City, or (iii) fails to execute and deliver to the City an assumption agreement or an agreement substantially similar to this Agreement within such thirty (30} day period, then the Consent to Transfer shall expire and the City may, at its option, either notify Owner of the disqualification, thereby entitling Owner to locate another purchaser who gvalifics as an Eligible Household, or exercise the City Option, as if no Consent to Transfer had been delivered. d. Time Period for Notice. City shall deliver a Consent to Transfer, if applicable, no later than thirty (30) days after the date it receives notification of an Option Event. City shall deliver a Notice of Exercise, if applicable, no later than sixty (60} days after the date that City receives notification of an Option Event. For purposes of computing commencement of the delivery periods, the City shall be deemed to have notification of an Option Event on the date that it actually receives written Notice of Intent to Transfer, notice of default, summons and complaint or other pleading, or other writing specifically stating that an Option Event has occurred. The City shall have no obligation to deliver a Notice of Exercise or Consent to Transfer, and the applicable time period for exercise of the City Option shall not commence to run, unless and until the City has received notification of an Option Event in the manner specified in this subsection. If there is a stay or injunction imposed by court order precluding the City from delivering its Consent to Transfer or Notice of Exercise within the applicable time period, then the running of such period shall cease until such time as the stay is lifted or the injunction is dissolved and the City has been given written notice thereof, at which time the period for delivery of a Consent to Transfer or Notice of Exercise shall again begin to run. e. No Waiver. If the City in its sole discretion determines not to exercise the City Option in any particular instance, or fails to defiver a Notice of Exercise or Conseat to Transfer within the tame periods set forth in this Section l 0, such determination or failure shall not affect City's right to exercise the City Option apon the occurrence of any future Option Event. 1 I . Right to Reinstatement. If the Option Event is the recordation of a notice of default, then the City shall be deemed to be Owner's successor in interest under California Civil Code Section 2924c {or successor section} solely for purposes of reinstatement of any mortgage oa the Property that has led to the recordation of the notice of default. As Owner's deemed successor is interest, the City shall be entitled to pay all amounts of principal, interest, taxes, assessments, homeowners' association fees, insurance premiums, advances, costs, attorneys' fee's and expenses required #o cure the default. If the City exercises the City Option, then any and all amounts paid by the City pursuant to this Section shall be treated as Adjustments to the Base Resale Price for the Pxoperty, as defined in Section 15, below. 12. Inspectia on f Property. After receiving a Notice of Intent to Traasfer or delivering a Notice of Exercise, the City shall be entitled to inspect the Property one or more times prior to the close of escrow to determine the amount of any Adjustments (defined below) to the Base Resa]e Price (defined below}. Before inspecting the Property, the City shall give Owner not less than forty-eight (48} hours written notice of the date, time and expected duration of the inspection. The inspection shall be conducted between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, excluding court holidays, unless the parties mutually agree in writing to another date and time. Owner shall make the Property available for inspection on the date and at the time specified in the City's request for inspection. l 3. Escrow, Promptly a$er delivering a Notice of Exercise, the City shall open an escrow account for its purchase of the Property. Close of escrow shall take place on the date that is the later of (i} sixty (b4) days after a Notice of Exercise has been delivered; or (ii) ten (1 Q) days after Owner has performed all acts and executed all documents required for close of escrow, provided, however, that close of escrow shall not occur later than ninety (94) days after the date that City receives notification of an Option Event unless the Parties mutually agree in writing to extend the close of escrow, or if for any reason, the time periods herein are tolled. Prior to the close of escrow, the City shall deposit the Adjusted Resale Priece as defined in Section 15 below and all escrow fees and closing costs to be paid by City. Closing costs and title insurance shall be paid pursuant to the custom and practice in the County of San Mateo at the time of the opening of escrow, or as may otherwise be provided by mutual agreement. Owner agrees to perform all acts and execute alI documents reasonably necessary to effectuate the close of escrow and transfer of the Property to the City. 14 Proceeds of Escrow; Removal of Exceptions to Title. Prior to close of escrow, Owner shall cause the removal of all exceptions to title to the Property that were recorded after the Effective Date with the exception of (i) nondeliaquent taxes for the fiscal year in which the escrow closes, which taxes shall be prorated as between Ownex and City as of the date of close of escrow, (ii} quasi-public utility, public alley, public street easements, sidewalks, and rights of way of record, and (iii} such other liens, encumbrances, reservations and restrictions as may be approved is writing by the City (collectively, "Permitted Exceptions"). All amounts required to be deposited into escrow by the City shall be applied first to the payment of any and all liens and encumbrances recorded against the Property in order of lien priarity, and therea$er to the payment of escrow fees and closing costs. Any amounts remaining after the amounts deposited into escrow by the City have been so applied, if any, shall be paid to Owner upon the close of escrow. If the amounts deposited into escrow by the City are insufficient to satisfy all liens and encumbrances recorded against the Property, the Owner shall deposit into escrow such additional sums as may be required to remove said liens and encumbrances. In the event that the City agrees to proceed with close of escrow prior to the date that Owner has caused all exceptions to title other than the Permitted Exceptions to be removed, then Owner shall indemnify, defend and hold City harmless from any and alI costs expenses or liabilities (including attorneys' fees) incurred or suffered by City that relate to such exceptions and their removal as exceptions to title to the Property. 1S. Determination of Adjusted Resale Price. If the City {or its assignee) exercises the City Option, or if the Owner sells to an Eligible Household, the maximum sales price that the Owner shall receive from the City or the Eligible Household shall be the Base Resale Price, as adjusted pursuant to subsection {b}below (the "Ad,~us#ed Resale Price"). Notwithstanding any other provision hereof to the contrary, in no event shall the Adjusted Resale Price be a price that will result in greater than Affordable PIausing Cost for the Eligible Household. a. Base Resale Price, Prior to adjustment pursuant to subsection {b} below the base resale price ("Base Resale I'rlce"} of the Property shall be the lesser of i. Indexed Value. The Indexed ~Talue of the Properly means the original price paid by the Owner for acquisition of the Property which the Parties agree is the sum of Dollars ($"} (the "Base Prfcc"}, increased (but not decreased} by an amount, if any, equal to the Base Price multiplied by the percentage increase in the AMI between the Effective ba#e and the date that the City receives notification of an Option Event, ii. Fair Market Value, The Fair Market Value of the Property means the value of the Property as determined by a qualified appraiser, certified by the State of California, selected and paid for by the Owner and approved by the City in writing. Nothing in this Section shall preclude the Owner and the City from establishing the Fair Market Value by mutual agreement instead of by appraisal. b. Ad~tments to Base Resale Price. Subject to the Affordable Housing Cost restriction, the Base Resale Price shall be increased or decreased, as applicable, bythe - following adjustment factors ("Adjustment''}: i. Capital Improvements. An increase for capital improvements made to the Property by Owner, but only if the purpose and amount of said improvements have been previously approved by the City is writing and evidence of the cost is provided to the City for verification ("Eligible Capital Improvements"}. The amount of the Adjustment shall equal the original cost of any Eligible Capital Improvements depreciated on a straight--line basis based upon the estimated useful life of the improvement stated in the City's prior written acceptance of said improvement. - ii. Damages. A decrease by the amount necessary to repair damages to the Property, if any, and to place the Property into saleable condition as reasonably determined by the City, including, without limitation, amounts attributed to cleaning; painting; replacing worn carpeting and draperies; making necessary sfivctural, mechanical, electrical and plumbing repairs; and repairing or replacing built-in appliances and fixtures. iii, Advances by the_ City. A decrease in an amount equal to the sum of all costs advanced by t1~e City for the payment of mortgages, taxes, assessments, insurance premiums, homeowner's association fees and/or associated late fees, costs, penalties, interest, attorneys' fees, pest inspections, resale inspections, fixing violations of applicable building, plumbing, electric, fire, or other codes, and other expenses related to the Property, which Owner has failed to pay or has permitted to become delinquent. i6. Priori and Effectiveness of the O 'on. a. Recordation. This Agreement shall be recorded in the Official Records on or as soon as practicable after the Effective Date. The City option shall have priority over any subsequent Transfer oz encumbrance of the Property, or of nay estate or interest therein, and 10 in the event of exercise of the City Option by City, the City shall take the Property subject only to Fermitted Exceptions. Except as otherwise provided in Section_17 ~~, the exercise of the City Option by the City at any time and from time to time shall not extinguish the City Option or cause a merger of the City Option into any estate or other interest in the Property, and the City Option shall continue to exist and be effective with respect to the Property against any and all subsequent owners in accordance with the terms and conditions hereof. b. i~eauest far Notice of Default. The City shall file a Request for Notice of Default for recordation in the Official Records promptly upon execution of this Agreement. c. Subordination. The City agrees that if required in order to assist Owner to secure purchase money financing for the acquisition of the Property, the City will enter into a subordination agreement with a purchase money lender to subordinate this Agreement under such terms as the City and the purchase money lender shall negotiate provided that City is granted reasonable notice and cure rights under the first mortgage. 17. Survival of Option Upon Transfer. a. In General. Except as provided in paragraphs (b) and (e}below, the City's right to exercise the City Option shall survive any 'T'ransfer of the Property by Owner. The City Option may be exercised against the Property whether owned, possessed or occupied by {i) an Eligible Household, (ii) any successor, transferee, assignee, heir, executor, or administrator of an Eligible Household, including adeb#or-in-possession, debtor or trustee pursuant to Tine 11 of the United States Code, or (iii) any person owning, possessing or occupying the Property who does not qualify as an Eligible Household (collectively all referred to and defined herein as "Owner"}. b. Exceptions. The City Option shall not survive (i} the sale and transfer of the Property to a senior lender or other third party purchaser pursuant to a judicial or non ;judicial foreclosure or a deed-in-lieu of foreclosure under a power of sale contained in a mortgage or deed of trust recorded against the Property in the Office of the Recorder of the County of San Mateo on or prior to the date of this Agreement, provided that the City has received timely notice of such Option Event and has failed to either reinstate said mortgage or deed of trust or exercise the City Option, or (ii) the recording of an instrument conveying Owner's interest in the Property to the City, or its assignee, provided the conveyance is in accordance with the terms of this Agreement a Ca1HFA Mort saes. If Owner has acquired the Property using financing secured by a mortgage in the name of or held by the California Housing Finance Agency ("Ca1HFA"), then the restrictions contained herein and the Option shall automatically terminate if title to the Property is transferred by a foreclosure conducted on behalf of CaIHFA or by a deed in-lieu of such foreclosure, or if the insured mortgage is assigned to Ca1HFA, provided that the City has received timely notice of such Option Event (which notice may include a notice of default recorded pursuant to California Civil Code Section 2924 or successor provision). 11 18. Voidable Transfers, Any actual or attempted Transfer of the Property or of any estate or interest therein, in violation of the terms and conditions of this Agreement, shall be voidable at the election of the City. 19. Refinancing; Junior T~oans. The City Option shall not become exercisable as the result of Owner's encumbering the Property for the purpose of securing financing to purchase the Property, or to refinance existing indebtedness incurred to purchase the Property provided such refinance does not result in Owner receiving any cash from the refinance other than for Eligible Capital Improvements (as defined in Section 15(blli)). The maximum amount (the "Permitted Encumbrance Amount") of any refinancing permitted by this section shall not exceed an amount equal to ninety percent (90°/a) of the Adjusted Resale Price calculated as provided in Section 1 S. The Permitted Encumbrance Amount shall be calculated as if the City has received notification of an Option Event oa the earlier of (a) the date on which the deed of trust or mortgage securing the refinancing indebtedness is filed for record in the Official Records, or (b) the date the City receives Notice of Intent to Transfer pursuant to Section 10 a above. Mortgage loans or equity lines of credit junior in lien priority to this Agreement are not permitted, except as when expressly approved by the City in writing. 20. Insurance Proceeds and Condemnarion Award. In the event the Property is destroyed and insurance proceeds are distributed to Owner instead of being used to rebuild the Property, or, in the event of condemnation, if the proceeds thereof are distributed tv Owner, any surplus of proceeds remaining after payment of the senior liens and encumbrances on the Property shall be distn~uted as follows: that portion of the surplus up to, but not to exceed, the net amount Owner would have received pursuant to Section 14 had the City exercised the City Option on the date of the destruction or condemnation valuation date shall be distributed to Owner, and the balance of such surplus, if any, shall be distributed to the City. 21. Events of Default. The following shall constitute the occurrence of an event of, default {"Event of Default") hereunder, and shall entitle the City to exercise the City Option or to pursue any other remedy provided herein or at law or in equity: a. Owner fails to use the Property as Owner's Principal Residence. b. Owner Transfers the Property is violation of this Agreement. c_ Owner refinances the Property is violation of this Agreement; d. Commencement of a judicial foreclosure proceeding regarding the Property. e. Execution by Owner of any deed in lieu of foreclosure transferring ownership of the Property. f. Commencement of a proceeding or action in bankruptcy, whether voluntary or involuntary, pursuant to Title 11 of the United States Code or other bankruptcy i2 statute, or any other insolvency, reorganizatioa, arrangement, assignment for the benefit of creditors, receivership or trusteeship, concerning the Owner; g. Owner otherwise fails to comply with the requirements of this Agreement and such violation is not corrected to the satisfaction of the City within thirty (30) days after the date of written notice by the City to the Owner of such violation. 22. Remedies. a. ~eeific Performance. Owner acknowledges that any breach in the performance of its obligations under this Agreement shall cause irreparable harm to the City. Owner agrees that the City is entitled to equitable relief in the form of specific performance, including without limitation, upon City's exercise of the City Option, and that an award of damages shall not be adequate to compensate the City for Owner's failure to perform according to the terms of this Agreement. b. Other Remedies. City shall be entitled to pursue any other remedy provided for at law or equity, all of which shall be cumulative. 23. Covenants Running with the Land. Owner hereby subjects the Property #o the covenants, conditions and restrictions set forth in this Agreement. The Parties hereby declare their express intent that all such covenants, conditions and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon Owner's successors in title to the Property. All covenants without regard to technical classification or designation shall be binding for the benefit of the City, and such covenants shall run in favor of the City and its successors for the Tcrm of this Agreement. Each and every contract, deed or other instrument hereafter executed applicable to or conveying the Property or aay portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, conditions and restrictions, regardless of whether such covenants, conditions and restrictions are set forth in such contract, deed or other instrument. 24. Owner's Acknowledgement of Resale Restriction. Owner hereby acknowledges and agrees that: A. Owner hereby subjects the Property to certain restrictions, and limits the price for which Owner may sell the Property and the persons to whom Owner may sell the Property. The resale price limitation, and other provisions contained in this Agreement restrict the full benefits of owning the Property. Owner may not enjoy the same economic or other benefits from owning the Property that Owner would enjoy if this Agreement did not exist. B. Absent the provisions of the AHA, the Iaclusionary Ordinance and the provisions of this Agreement, the Property could not be made available to Eligible Households, including Owner, at an affordable price. 13 C. Owner has read and understands all of the provisions of this Agreement. Owner accepts and agrees to the provisions of this Agreement and understands that this Agreement (including without limitation the effectiveness of the resale restrictions and the City Option} will remain in fiill force and effect throughout the Term of this Agreement despite any Transfer of the Property. D. OWNER UNDERSTANDS THAT THE DETERMINATION OF THE ADJUSTED RESALE PRICE OF THE PROPERTY TO AN ELIGIBLE HOUSEHOLD CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INCREASES IN MEDIAN II~ICOME, MORTGAGE INTEREST RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED AND THAT THE SALES PRICE PERMITTED I3.EREUNDER MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SMLAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS AGREEMENT. OWNER FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE SALES PRICE OF THE PROPERTY THE PRIMARY OBJECTIVE flF THE CITY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE HOUSEHOLDS AT AFFORDABLE HOUSING COST. THE ADJUSTED RESALE PRICE WILL ALMOST CERTAINLY BE LESS THAN OTHER SIlVSILAR PROPERTIES THAT HAVE NO RESTRICTIONS. [initialed by Owner{s)] 25. otices. Except as otherwise specified in this Agreement, all notices required to be sent pursuant to this Agreement shall be made by personal delivery or by deposit in the. United States mail, first-class, postage prepaid, and shalt be deemed to have been delivered and received on the date of personal delivery or five {5) days after deposit in the mail, if sent to the following address: City_ City of South San Francisco 400 Grand Avenue South San Francisco, California 94080 Attn: City Manager Owner: South San Francisco, Californuia 94080 b. Attorneys' Fees. If either party initiates Legal proceedings to interpret or enforce its rights under this Agreement, the prevailing party in such action shall be entitled to an award . ofreasonable attorneys' fees and costs in additions to any other recovery to which it is entitled under this Agreement 2'1. Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no 14 i .1 waiver shall be valid unless in writing and executed lay the waiving party. An extension of ~ time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving patty. This Agreement maybe amended or modified only by a written instrument executed by the Parties and duly recorded in the Official Records of San Mateo County. 28. Severability. Tf any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 29. Interpretation of Agreement. This Agreement shall be in#erpreted so as to avoid speculation on the Property and to ensure to the extent possible that its sales price and mortgage payments remain affordable to Eligible Households. 30. Action or Akaproval. Whenever action andlor approval by City is required under this Agreement, the City Manager or his or her designee may act on andlor approve such matter unless specifically provided otherwise, or unless the City Manager determines in his or her discretion that such action or approval requires referral to the City Council for consideration. 31. Entire Aareement_ This Agreement, including Exhibits A through D attached hereto and incorporated herein by this reference, contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements with respect to the subject matter hereof 32. Governing Law: Venue. This Agreement shall be governed and construed in accordance with the laws of the State of California without regard to principles of conflict of laws. Any action to enforce or in#erpret this Agreement shall be filed in the Superior Court of San Mateo County, California or in the Federal District Court for the Northern District of California. SFG~V~TURES ONFOLLOA'INGPAGE. l5 IlV WETNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. OWNER(S), fan individuaVa married couple]: By: THE C1TY OF SOUTH SAN FRANCISCd, a municipal corporation By: Its: ATTEST: By: City Clerk APPROVED As To >:aR.~: ay: City Attorney SIGNATURES 11IUST BE 11,'OTARI2ED. 1s CERTIFICATE OF ACCEPTANCE (Pursuant to Government Cade §27281) ~ This is to certify that the interest in real property conveyed by the Resale Restriction Agreement and Option to Purchase dated from to the City of South San Francisco ~"City"), a municipal corporation, is hereby accepted by the undersigned office or agent on behalf of the City pursuant to authority conferred by the Resolution No, dated :and the grantee consents to recordation thereof by its duly authorized officer. Dated: By: Its: ATTEST' City Clerk .i 17 EXHIBIT A PROPERTY {at#ach legal description) A-1 s E~-IIBIT B VIA CERTIFIED MAIL - ~ RECEIPT REQUESTED To: City of South San Francisco X00 Grauad Avenue South San Francisco, CA 94480 Attn: City Manager Date.: Re; Notice of Intent to Transfer The undersigned Owners} ,hereby give(s) notice of hislher/then intent to transfer the property located at .South San Francisco, California (the "Property"). Owner maybe contacted at the Property or at the fallowing address; Owner's daytime telephone number is { ) The proposed transfer of the Pzaperty is to the following person(s): Name: Address; Telephone: ( } The proposed transfer is {check one): Sale Lease Other Specify: Owner(s) signature(s): B-i EXHIBIT C Date: To: (Owner or Transferree} (Address) Re: Notice of Exercise The City of South San Francisco ("City"} hereby gives notice that it is exercising its option to purchase the real property located at ,South San Francisco, California. The option has been granted to the City pursuant to the Resale Restriction Agreement and Caption to Purchase between Owner and the City dated and recorded on as Instrument No. (The City has assigned its option to purchase the real property to .} An escrow for the purchase will be opened with the Title Company. CITY OF SOUTH SAN FRANCISCO, a municipal corporation By. Its: C-i r. ~ EXHIBIT D Disclosure Statement THERE ARE RESTRICTTONS ON THE SALE OF THE PROPERTY YOU ARE BUYING. EXCEPT FOR A TRANSFER TO THE CITY OF SOUTH SAN FRANCISCO FOLLOWING EXERCISE OF ITS OPTION TO PURCHASE, TINS PROPERTY MAY ONLY BE SOLD TO AN "ELIGIBLE HOUSEHOLD" AT A PRICE NOT TO EXCEED THE ADJUSTED RESALE PRICE WHICH IS CAPPED AT AN "AFFORDABLE HOUSING COST." TIIE PRICE FOR WHICH TIIIS PROPERTY MAY BE SOLD IS RESTRICTED. THIS MEANS THAT YOU MAY NOT SELL THE PROPERTY FOR MARKET VALUE UNLESS APPROVED BY THE CITY OF SOUTH SAN FRANCISCO. ALL IMPROVEMENTS TO THE PROPERTY AND ALL LOANS SECURED BY THE PROPERTY REQUIRE PRIOR WRITTEN APPROVAL FROM THE CITY OF SOUTH SAN FRANCISCO. THESE RESTRICTIONS WILL BE IN EFFECT UNTIL . ANY SALE OF THE PROPERTY IN VIOLATION OF THE RESTRICTIONS SHALL BE VOID. TO DETERMINE WHO AN ELIGIBLE HOUSEHOLD IS, AND WHAT THE ADJUSTED RESALE PRICE AND AFFORDABLE HOUSING COST ARE, YOU SHOULD CONTACT THE CITY OF SOUTH SAN FRANCISCO. YOU SHOULD ALSO READ THE RESALE RESTRICTION AND OPTION TO PURCHASE AGREEMENT RECORDED AGAINST THE PROPERTY. YOU MAY OBTAIN A COPY FROM THE CITY OF SOUTH SAN FRANCISCO OR FROM THE ESCROW COMPANY. I HAVE READ THE FOREGOING AND I UNDERSTAND WHAT IT MEANS: Owner 1169728.3 Owner Summerl-lilt Homes, lnc. -Amended and Restated Affordable Housing Agreement Page D- 1