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2010/12/14 City Council Ordinance 832 AFFIDAVIT OF POSTING STATE OF CALIFORNIA ) ) ss County of Sonoma ) Terri Griffin, under penalty of perjury, deposes and says: That she is, and during all times herein mentioned was, the duly acting and qualified Deputv City Clerk of the City of Rohnert Park, Sonoma County, California; and that on the 15th day of December. 2010, she posted as required by law full, true, and correct copies of ORDINANCE NO. 832, "APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ROHNERT PARK AND REDWOOD EQUITIES. LLC. FOR DEVELOPMENT OF THE PROPERTY LOCATED NORTHEAST OF VALLEY HOUSE DRIVE AND BODWAY PARKWAY (APN 047-111-030) IN SONOMA COUNTY, CA" in five (5) public places in said City, to wit: City Hall 130 Avram Avenue Public Safety Department 500 City Center Drive Rohnert Park Community Center 5401 Snyder Lane Library 6250 Lynne Conde Way www.rpcitv.orl! for website posting ~ '4r ' 0 AAA- .. DeputY ity e. Subscribed and sworn to before me this 15th day of December, 2010. /J,d ~~ Deputy City Clerk M:\Ordinances\Ordinances 2010\Affidavits of Posting \Affidavit of Posting 832.doc ORDINANCE NO. 832 . AN ORDINANCE OF THE CITY OF ROHNERT PARK, CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ROHNERT PARK AND REDWOOD EQUITIES LLC. FOR DEVELOPMENT OF THE PROPERTY LOCATED NORTHEAST OF VALLEY HOUSE DRIVE AND BODW A Y PARKWAY (APN 047-111-030 )IN SONOMA COUNTY, CA WHEREAS, Government Code S 65864, et seq., authorizes the City of Rohnert Park to enter into development agreements which will provide certainty, definition and commitment to developers as well as to necessary public improvements required by development; WHEREAS, Redwood Equities LLC (collectively, "Developer") submitted applications to the City of Rohnert Park for a General Plan Amendment, Specific Plan, Annexation, prezoning and tentative map' for real property. located at Valley House Drive and Broadway Parkway (APN 047-111-030), (the "Property"); WHEREAS, the proposed applications would allow development of the Property, which includes 475 residential units, approximately 10,000 square feet of commercial space, and approximately 5 acres of park space, 2.1 acre storm detention basin and water storage facility (the "Project"); WHEREAS, in connection with the Project, Developer and City staff have negotiated a proposed development agreement ("Development Agreement") in accordance with the requirements of Government Code S 65864, et seq.,and Chapter 17.21, "Development Agreement Procedure," of the Rohnert Park Municipal Code ("RPMC"), for the Property. The Development Agreement negotiated by Developer and the City is attached to this Resolution as Exhibit A; WHEREAS, the Development Agreement, among other things, sets forth the effective date and term of the agreement; applicable fees; applicable rules, regulations and policies; required infrastructure improvements; affordable housing obligations; prevailing wage rules; provisions on amendments, annual review and default; and other miscellaneous provisions; WHEREAS, on November 16,2010, the Planning Commission held a public hearing at which time the Planning Commission reviewed the Development Agreement prepared for the Project and recommended approval by the City Council; WHEREAS, the City Council reviewed and certified the Final EIR prepared for the Project in accordance with CEQA; and has otherwise carried out all requirements for the Project pursuant to CEQA; WHEREAS, pursuant to California State Law and the RPMC, public hearing notices were mailed to all property owners within an area exceeding a three hundred foot radius of the subject property and a public hearing was published for a minimum of 10 days prior to the first public hearing in the Community Voice; WHEREAS, on December 7, 2010, the City Council held a public hearing at which time interested persons had an opportunity to testify either in support or opposition to the proposed Development Agreement; WHEREAS, the City Council has given consideration to other pending application and approved projects; the traffic, parking, public service, visual, and other impacts of the proposed development project upon abutting properties and the surrounding area; ability of the applicant to fulfill public facilities financing plan obligations; the relationship of the project to the City's growth management program; the provisions for reservation, dedication or improvement of land for public purposes or accessible to the public; the type and magnitude of the project's economic effects to the City and of its contribution toward meeting the City's housing needs; and to any other comparable, relevant factor; WHEREAS, the City Council has reviewed and considered the information contained in proposed Development Agreement. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Rohnert Park does ordain as follows: SECTION 1~ Findings for Adoption of Development Agreement The City Council of has reviewed Planning Application No. PL2003-031, Development Agreement for Southeast Specific Plan hereby makes the following findings: . A. A duly noticed public hearing regarding the Development Agreement was held by the Planning Commission on November 16,2010, in conformance with the notice provisions of Government Code SS 65090 and 65091 and the requirements oftheRPMC. B. A duly noticed public hearing regarding the Development Agreement was held by the City Council on December 7, 2010, in conformance with the notice provisions of Government Code SS 65090 and 65091 and the requirements of the RPMC. C. The applicant has proposed amendments to the General Plan and related land use entitlements for the Project which the City Council has concurrently reviewed and considered in conjunction with its review of the Development Agreement. The proposed Development Agreement is consistent with the General Plan, as amended, and would direct the Project's development in an orderly manner that benefits the City. The provisions of the Development Agreement require that development comply with the Southeast Specific Plan (Plan). The Plan proposes to meet the goals of General Plan by providing for a variety of housing types including low density, medium density, rural estate and mixed use allowing attached housing. The Plan also provides for affordable housing to meet the needs of lower income households. The Plan is located within the Urban Growth Management Boundary which represents the ultimate edge of urban uses inthe Rohnert Park Planning Area. In addition to providing a wide range of housing types that would be consistent with housing goals and objectives of the General Plan, the provisions of the Development Agreement incorporate, implement and are subject to requirements of both the General Plan and Southeast (2) Specific Plan by including a 7. I-acre park/detention basin site, aO.3-acre public facility site, and a mixed use area with approximately 10,000 square feet of commercial building area. The proposed parkland acreage meets the City's requirements for parkland dedication. The Neighborhood Park is proposed to be within Y-t to ~ mile of all homes within the planning area. Park amenities would include a playground, dog park, picnic area, basketball half-court, turf play fields, pathways, lighting, and more. Commercial land uses are proposed to encompass business, office, retail shops, residences and may include institutions and service organizations. SECTION 2. Adoption of Development Agreement The City hereby adopts the Development Agreement in substantially similar form as attached hereto and incorporated herein as Exhibit A. SECTION 3. Compliance with the California Environmental Quality Act. The City Council has certified a Final Environmental Impact Report for the Southeast Specific Plan, which evaluated the impacts of implementation of this ordinance, including adoption of associated CEQA Findings, Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting Program in Resolution No. 2010-134. SECTION 4. Compliance with State Law A The City will act in accordance with the provision.s of Government Code SS 65856(e) and 66006. B. In accordance with Government Code SS 65868.5, no later than 10 days after the City enters into the Development Agreement,. the City Clerk will record the Development Agreement with the County Recorder. C. In accordance with Government Code SS 65865.1 and RPMC Section . 17.21.050(A), the City will conduct an annual review of the Development Agreement to ensure compliance with the terms. SECTION 5. Severability. The City Council hereby declares that every section, paragraph, sentence, clause, and phrase of this ordinance is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses, or phrases. SECTION 6. Effective Date. This ordinance shall be in fun force and effective 30 days after its adoption, and shall be 'published and posted as required by law. (3) This ordinance was introduced by the Council of the City of Rohnert Park on December 7,2010, and was adopted on December 14,2010 by the following roll call vote: AYES: Four (4) Council Members Belforte, Breeze, Callinan and Mayor Stafford NOES: One (1) Council Member Mackenzie ABSENT: None (0) ABSTAIN: None (0) CITY OF ROHNERT PARK ~ ~ Mayo~ ATTEST: jv~ ~~S1rtv~ 12/'1) caly Clerk . . (4) EXHIBIT A DEVELOPMENT AGREEMENT (5) RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928 Attention: City Clerk Copy to: Tina Wallis Clement, Fitzpatrick & Kenworthy 3333 Mendocino Avenue, Suite 200 Santa Rosa, CA 95403-2233 APN: 047-1] 1-030 Space Above This Line Reserved for Recorder's Use Exempt from Recordiilg Fee Per Government Code Section 27383 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF ROHNERT PARK AND REDWOOD EQUITIES, LLC ARTICLE 1. Section 1.01 ARTICLE 2. Section 2.01 Section 2.02 Section 2.03 Section 2.04 Section 2.05 Section 2.06 Section 2.07 Section 2.08 Section 2.09 ARTICLE 3. Section 3.01 Section 3.02 Section 3.03 Section 3.04 Section 3.05 Section 3.06 Section 3.07 Section 3.08 Section 3.09 Section 3.10 Section 3.11 Section 3.12 Section 3.13 Section 3.14 ARTICLE 4. Section 4.01 Section 4.02 Section 4.03 Section 4.04 Section 4.05 Section 4.06 Section 4.07 Section 4.08 Section 4.09 Section 4.10 Section 4.11 Section 4.12 Section 4.13 OAK #482]-8266-3]75 v7 TABLE OF CONTENTS Page DEFINITIONS..................................................................................... ..............5 Definitions......................................................................................................... 5 EFFECTIVE DATE AND TERM .....................................................................9 Effective Date ........................................................ .................. ......................... 9 Termination for Failure to Annex .....................................................................9 Term.......... ............................................................ .................. ..'........ ................ 9 Initial Term ... ............................. .............. ......... ......... ....................................... 9 Extended Term................... ................. ...................................... ............... ......... 9 City Review of Request for Extended Term................................................... 10 Termination Following Expiration................... ........ ....... .... ....... ......... ........... 10 Project Integration.......................................... ................................................. 10 Developer Representations and Warranties .................................................... 11 DEVELOPMENT OF PROPERTY ................................................................11 Vested Rights ..... .......... ............................... ............... ............... ................ ...... 11 Applicable Law and Project Approvals. ......................................................... 11 Development Timing ................................. ..... .... .... .............................. .......... 12 Issuance of Building Permits In Accordance with City's Growth Management Program................................................... .................. ................ 12 Reservations of Authority. ..... ..... .............. ......... ....................... ...................... 13 Regulation by Other Public Agencies............................................................. 14 Life of Project Approvals. ........ ..;.......... ......... ............... ................................... 14 Vesting Tentative Maps....... ........... ......... ............... ... .................. .... .......... ..... 14 Developer's Right to Rebuild.. .... ......... .............. ..... .......... ............... .... .......... 14 Initiatives and Referenda.......................... ........................... .... ................. ...... 15 Environmental Mitigation........................................................ ....................... 15 Subdivision Maps......................................................... .......................... ......... 15 State and Federal Law.................... ..... .............. .... ......... ................................. 16 Certificates of Occupancy.. ........................... ............. ............... ...................... 16 FINANCING AND PUBLIC IMPROVEMENTS ..........................................16 Taxes, Assessments, Fees and Exactions........................................................ 16 Regional Traffic Improvement Fee. ................................................................ 18 Lump Sum Payment Related to Annexation................................................... 19 In-Lieu Housing Fee ............................... ....... .... ................. ...... ...................... 19 Financing Mechanism for Public Facilities .................................................... 19 Public Maintenance Fees. ................. ..... ................. ......................... ............... 22 Mitigation of Project Impacts on Valley House Drive ................................... 23 Additional Service Personnel Fee ................................................................... 23 Public Facilities Financing Plan............ ... ........... ...... .... ......... ......................... 23 Financing Mechanisms for Private Improvements ......................................... 24 Roadway Improvements.. ....~...... ............................. .... ............ ....... ..... ........... 25 Public Improvements. ............ ....... ....... .............. ...... .... ........... ..... ............ ....... 25 Acquisition of Land Owned by Third Parties ................................................. 25 Section 4.14 ARTICLE 5. Section 5.01 Section 5.02 Section 5.03 Section 5.04 ARTICLE 6. Section 6.01 Section 6.02 Section 6.03 ARTICLE 7. Section 7.01 Section 7.02 Section 7.03 Section 7.04 Section 7.05 Section 7.06 Section 7.07 ARTICLE 8. Section 8.01 Section 8.02 Section 8.03 ARTICLE 9. Section 9.01 Section 9.02 Section 9.03 Section 9.04 Section 9.05 Section 9.06 Section 9.07 Section 9.08 Section 9.09 ARTICLE 10. Section 10.01 Section 10.02 Section 10.03 Section 10.04 Section 10.05 Section 10.06 Section 10.07 Section 10.08 Section 10.09 OAK #4821-8266-3175 v7 TABLE OF CONTENTS ( continued) Page Fee Escalation ................................................................................................. 26 DEVELOPMENT STANDARDS and REQUIREMENTS ............................26 Compliance with State and Federal Law........................................................ 26 Prevailing Wage Requirements.... ................ ................ ................................... 26 Sale Tax Point of Sale Designation ................................................................ 27 Affordable Housing Plan...................... ......... ......... .......................... .............. 27 MORTGAGEE PROTECTION .................................................................... ..28 Mortgagee Protection....... ........................................... ........ ...................... ...... 28 Mortgagee Not Obligated. ........ ..................................... ............... ........... ....... 28 Notice of Default to Mortgagee............... ....................... .................. .............. 28 COOPERATION AND IMPLEMENTATION ...............................................28 Subsequent Project Approvals. ............... .:................ ...................................... 28 Processing Applications for Subsequent Project Approvals........................... 29 Administration of Subsequent Project Approvals........................................... 30 Changes and Amendments to Project Approvals............................................ 30 Other Government Permits ........................................... .... .......... ....... .... ......... 31 Mitigation Measures ............ ................... ........... .... ........ ... ............ ............. ..... 31 Cooperation in the Event of Legal Challenge. .............................;.................. 31 ASSIGNMENT, TRANSFER AND NOTICE ...............................................;32 Assignment ................... ........... ......................;.............. ........ ........................... 32 Right to Assign. .~.... ..... ..... ............................... ... ...... ......... ........... ............ ...... 32 Release of Transferring Developer .... ................ ....................... ...................... 33 DEFAULT; REMEDIES ; TERMINATION ................................. .... .... ......... .34 Breach............................................................................................................. 34 Default............................................................................................................. 34 Withholding of Permits.. ................. ........... ..................................... ............ .... 34 Remedies. ... .... .......... ............. ........................................ ........ .......................... 34 Periodic Review. ......................................................... ....... ................ ..... ........ 35 Enforced Delay; Extension of Time of Performance...................................... 37 Resolution of Disputes.... ......................... ... ....... .... ..... ..................... .......... ..... 37 Surviving Provisions....... ....................................... ....... ...... ....................... ..... 37 Indemnity and Hold Harmless ........................................................................ 37 MISCELLANEOUS PROVISIONS................. .... ........... ........ ................ ...... ..3 8 Incorporation of Recitals and Introductory Paragraph................................,... 38 Findings........................................................................................................... 38 Severability............... ........ ....... ........................... ........ ......... ................... ........ 38 Construction.................................................................................................... 38 Covenants Running with the Land.................................................................. 38 Notices.. .......... ................ ..... ................ ..... ......... .... ............. ...... ...................... 39 Entire Agreement, Counterparts and Exhibits ................................................40 Recordation Of Development Agreement ...................................................... 40 No Joint Venture or Partnership ..................................................................... 40 11 Section 10.10 Section 10.11 Section 10.12 Section 10.13 Section 10.14 Section 10.15 Section 10.16 TABLE OF CONTENTS ( continued) Page Waivers....... ............................................................................................... ..... 40 California Law................................................................................................ 41 Estoppel Certificate. ...................................................... .................................. 41 No Third-Party Beneficiaries.................................................. ............. ........... 41 Time of Essence .... ......... ............................................................. ............. ....... 41 Venue .............. ...................... ....................................................................... ... 41 Subsequent Applications.... ...................................... ....................................... 41 LIST OF EXHIBITS: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H OAK #4821-8266-3]75 v7 Site Map of Property Legal Description of Property Resolution Requesting Annexation Affordable Housing Plan Water Storage Facility Water Storage Facility Specifications Storm Water Detention Basin . Storm Water Detention Basin Specifications III DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the ih day of December 2010, by and between REDWOOD EQUITIES, LLC, a California limited liability company ("RWE" or "Developer"), and the CITY OF ROHNERT PARK, a California municipal corporation ("City"). City and Developer are sometimes referred to herein as a "Party" and collectively as "Parties." RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature ofthe State of California enacted California Government Code 9 65864 et seq. ("Development Agreement Statute"), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code 965865, City has adopted procedures and requirements for the consideration of development agreements (City Municipal Code Chapter 17.21). This Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. RWE.is the fee owner of that certain real property legally known as Sonoma County Assessor's Parcel No. 047-111-030 consisting of approximately 79.7 acres within unincorporated Sonoma County proposed to be annexed by City, which is depicted on the Site Map attached hereto as Exhibit A, and legally described in Exhibit B attached hereto and referred to herein as the "Property." D. The Property is within the City's sphere of influence and Twenty (20) Year Urban Growth Boundary and the City intends to submit an application with the Sonoma County Local Agency Formation Commission so that annexation of the Property into the City limits can occur prior to the end of the Term of this Agreement. E. Developer proposes to develop on the Property a fully physically integrated, mixed-use, pedestrian oriented community providing diverse residential opportunities as well as a park, open space, other public amenities and infrastructure, . including on- and off-site public improvements ("Project"), in the manner described in City's 2000 General Plan, as amended through the Effective Date ("General Plan') and the South East Specific Plan ("Specific Plan "), and in compliance with City's Public Facilities Finance Plan, as it may be amended from time to time ("PFFP'). F. Prior to approval of this Agreement, City has taken numerous actions in . connection with the development of the Project on the Property. These include: 1 OAK #482]-8266-3]75 v7 1. Final Environmental Impact Report. The environmental impacts of the Project, including the Existing Project Approvals and alternatives to the Project and its location, have properly been reviewed and assessed by City pursuant to the California Environmental Quality Act, California Public Resources Code Section 21000 et seq.; California Code of Regulations Title 14, Section 15000 et seq. ("CEQA Guidelines"); and City's local guidelines promulgated thereunder (hereinafter collectively referred to as "CEQA ''). On December 7, 2010, pursuant to CEQA and in accordance with the recommendation of City's Planning Commission (the "Planning Commission "), the City Council of City ("City Council") held a duly noticed public hearing and certified a Final Environmental Impact Report ("EIR"), adopted a Statement of Overriding Considerations, and adopted a Mitigation Monitoring and Reporting Program ("MMRP") by Resolution No. 2010-134. 2. General Plan Amendment. On December 7, 2010, in accordance with the recommendation of the Planning Commission, the City Council adopted Resolution No. 2010-135, amending the General Plan Land Use Diagram and amending the text of the General Plan. This was the City's fourth (4th) General Plan amendment this calendar year. 3. Specific Plan. On December 7, 2010, in accordance with the recommendation of the Planning Commission, the City Council adopted Resolution No. 2010-136 approving the Southeast Specific Plan, which covers the entirety of the Property, including Design Guidelines. 4. 'Prezoning. On , in accordance with the recommendation of the Planning Commission, the City Council adopted Ordinance No. 831 Prezoning the Project Site to Specific Plan (SP) Zoning District and amending the City's zoning map. 5. Annexation. On December 7, 2010,'in accordance with the recommendation of the Planning Commission, the City Council adopted Resolution No. 2010-141 authorizing the City Manager to file an application of reorganization for the Project Site with the Sonoma County Local Agency Formation Commission. A copy of this resolution is attached hereto as Exhibit C. 6. Tentative Tract Map. On December 7, 2010, in accordance with the recommendation of the Planning Commission, the City Council adopted Resolution No. 2010-138 approving Civil Design Consultants Inc. Tentative Map Job No. 02-136 dated 10/6/2010 for the Property ("Tentative Map"). 7. Development Area Plan. On December 7,2010, in accordance with the recommendation of the Planning Commission, the City Council adopted Resolution No. 2010-139 approving a Development Area Plan for the Southeast Specific Plan. 8. Final Development Plan. On December 7, 2010, in accordance with the recommendation of the Planning Commission, the City Council adopted 2 OAK #4821-8266-3175 v7 Resolution No. 2010-137 approving a Final Development Plan - Southeast Area for the Property. The approvals and development policies described in this Recital F are collectively referred to herein as the "Existing Project Approvals. " G. Subsequent to approval of this Agreement, City and RWE do not anticipate or expect that any additional discretionary approvals will be required from the City in order to construct and complete the Project. In the event that RWE seeks an amendment to this Agreement or takes an action not contemplated by this Agreement, then applications for additional land use approvals, entitlements, and permits may be required to implement and operate the Project or a modified version of the Project (the "Subsequent Project Approvals'l H. This Agreement furthers the public health, safety and general welfare in that the provisions of this Agreement are consistent with the General Plan, as amended, and the Specific Plan. For the reasons recited herein, City and Developer have further determined that the Project is a development for which this Agreement is appropriate. This Agreement will eliminate uncertainty regarding Existing Project Approvals and Subsequent Project Approvals, thereby encouraging planning for, investment in and commitment to use and development of the Property. Continued use and development of the Property in accordance with this Agreement is anticipated to, in turn, provide the following substantial benefits and contribute to the provision of needed infrastructure for area growth, thereby achieving the goals and purposes for which the Development Agreement Statute was enacted: 1. Provide for the orderly development of the Property and the surrounding community. 2. Contribute to the balanced land-use base anticipated by the General Plan. 3. Provide for (1) the construction ofa minimum number of Affordable Units equal to 15% of the total number of market rate residential units and Affordable Units within the Project as provided for in the Affordable Housing Plan attached as Exhibit D; or (2) if the City adopts any other affordable or inclusionary housing Ordinance, including an in-lieu fee that would apply to the Project, Developer may, in its sole discretion, comply with any future adopted form of affordable or inclusionary housing ordinance. 4. Provide infrastructure improvements that will benefit the Property and the surrounding community. 5. Provide needed market-rate housing to help meet current local housing demand as well as anticipated future demand for housing. 3 OAK #482]-8266-3]75 v7 6. Provide open space, parks and recreational improvements and amenities that will benefit future property owners and the surrounding community. 7. Provide up to 10,000 gross square feet of neighborhood serving commercial space and associated on-site parking. 8. Ensure, through required funding of the Maintenance Fees (as defined below), payment of fees as required by the Public facilities Financing Plan ("PFFP Fees"), the potential establishment of a Community Facilities District as provided for in section 4.05, and the Maintenance Fee Funding Mechanism (as defined below) that the residential component of the Project does not negatively impact City's ability to provide for and fund the necessary capital improvements and services, including on-going maintenance, and that the Project meets General Plan Growth Management and Open Space goals and policies, including GM-F, GM-H, GM-9, GM-13, OS-H, EC-10 and HO-3. I. The Parties intend through this Agreement to allow the Developer to develop and operate the Project in accordance with the Existing Project Approvals and the Applicable Law (as defined below), and that any Subsequent Project Approvals and the imposition of any new impact fees, other fees, or monetary and non-monetary exactions should be governed by the terms of this Agreement. J. The City Council has found that this Agreement is consistent with the General Plan, as amended pursuant to Resolution No. 2010-135, and the Specific Plan, and has conducted all necessary proceedings in accordance with the City's rules and regulations for the approval of this Agreement. K. On , the City Council, at a duly noticed public hearing, adopted Ordinance No. 832, approving and authorizing the execution of this Agreement. L. Developer represents that it has discussed with the owner of that 1 (one) foot strip of land along Bodway the potential purchase of that land and has made an offer to purchase that land in October 2010, but received no response. These efforts reflect Developer's best efforts to acquire this land through a voluntary transaction. AGREEMENT NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: 4 OAK #4821-8266-3175 v7 ARTICLE 1. DEFINITIONS Section 1.01 Definitions. "Adjustment Date" shall have the meaning set forth in Section 4.14. "Administrative Project Amendment" shall have the meaning set forth in Section 7.04. "Advanced Costs" shall have the meaning set forth in Section 4.05 "Affiliated Party" shall have the meaning set forth in Section 8.02. "Affordable Housing Ordinance" or "AHO" shall mean Rohnert Park Municipal Code Section 17.07.020 N and any valid modification or any valid successor ordinance. "Affordable Housing Plan" shall have the meaning set forth in Section 5.04. "Affordable Rent" shall mean (1) monthly rent that does not exceed 30 percent of 80 percent of Median Income for a Low Income Household, less a reasonable allowance for utilities, and (2) monthly rent that does not exceed 30 percent of 50 percent of Median Income for a Very Low Income Household, less a reasonable allowance for utilities. Affordable Rent shall be based on presumed occupancy levels of one person in a studio unit, two persons in a one-bedroom unit, three persons in a two-bedroom unit, and one additional person for each additional bedroom thereafter. "Affordable Sales Price" shall mean the maximum purchase price that will ensure that the Owner-Occupied Monthly Housing payment is equal to or less than one-twelfth of 30 percent of income for the specified target income household. Affordable Sales Price shall be based upon presumed occupancy levels of one person in a studio unit, two persons in a one-bedroom unit, three persons in a two-bedroom unit, and one additional person for each additional bedroom thereafter. "Affordable Units" means the units to be rented or sold as set forth in the Affordable Housing Plan. "Agreement" shall have the meaning set forth in the introductory paragraph preceding the Recitals. "Annual Household Income" shall mean the combined gross income of all adult persons living in the Affordable Unit, as calculated for the purpose of the Section 8 program under the United States Housing Act of 1937, as amended, or its successor. "Applicable Law" shall have the meaning set forth in Section 3.02. "Architect Fees" shall have the meaning set forth in Section 4.01. "Assignee" shall have the meaning set forth in Section 8.02. 5 OAK #4821-8266-3]75 v7 "CEQA" shall have the meaning set forth in Recital F. "CEQA Guidelines" shall have the meaning set forth in Recital F. "Changes in the Law" shall have the meaning set forth in Section 3.13. "City" shall have the meaning set forth in the introductory paragraph preceding the Recitals. "City Council" shall have the meaning set forth in Recital F. "City Law" shall have the meaning set forth in Section 3 .09. "City Manager" means the City Manager of the City or his/her designee. "Community Facilities District" shall have the meaning as set forth in Section 4.05. "Consultant Fees" shall have the meaning set forth in Section 4.01. "Consumer Price Index" shall have the meaning set forth in Section 4.14. "CPI Adjustment" shall have the meaning set forth in Section 4.14. "Cure Period" shall have the meaning set forth in Section 9.01. "Default" shall have the meaning set forth in Section 9.02. "Developer" means Redwood Equities, LLC, a California limited liability company and its permitted successors and assigns. Developer is also referred to as R WE. "Development Agreement Statute" shall have the meaning set forth in Recital A. "Development Services Director" means the Development Services Director of the City. "Effective Date" shall have the meaning set forth in Section 2.01. "EIR" shall have the meaning set forth in Recital F. "Eligible Cost" shall have the meaning set forth in Section 4.09. "Existing Project Approvals" shall have the meaning set forth in Recital F. "Extended Cure Period" shall have the meaning set forth in Section 9.01. "Extended Term" shall have the meaning set forth in Section 2.05. "Funding Mechanism" shall have the meaning set forth in Section 4.05. 6 OAK #4821-8266-3175 v7 "General Plan" shall have the meaning set forth in Recital E. "Household" means one person living alone or two or more persons sharing residency. "Initial Term" shall have the meaning set forth in Section 2.04. "Low Income Household" means a Household with an Annual Household Income of up to 80 percent of Median Income. "Maintenance Fees" shall have the meaning set forth in Section 4.06. "Maintenance Fee Funding Mechanism" shall have the meaning set forth in Section 4.06. "Median Income" means the median income, adjusted for family size, applicable to Sonoma County as published annually pursuant to Title 25 of the California Code of Regulations, Section 6932 (or its successor provision) by the United States Department of Housing and Urban Development ("HUD"). In the event that such income determinations are no longer published or are not updated for a period of at least 18 months by HUD, Median Income shall mean the area-wide median gross income for households in Sonoma County, adjusted for family size, as published from time to time by the California Department of Housing and Community Development ("HCD"). In the event that such income determinations are no longer published, or not updated for a period of at least 18 months, the City shall provide Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD or HCD. "Moderate Income Household" means a Household with an Annual Household Income of up to 120 percent of Median Income. "MMRP" shall have the meaning set forth in Recital F. "Mortgage" shall have the meaning set forth in Section 6.01. "Mortgagee" shall have the meaning set forth in Section 6.01. "Non-administrative Project Amendment" shall have the meaning set forth in Section 7.04. "Official Policy" shall mean a policy that is approved in accordance with the City's normal practice for adopting policies, that is in writing, and that was adopted prior to the Effective Date of this Agreement or that is approved by the City Council and consistent with federal, state or local laws. "Other Local Agency Compliance Fees" shall have the meaning set forth in Section 3.09. 7 OAK #482]-8266-3175 v7 "Owner-Occupied Monthly HousingPayment" means the sum equal to the principal, interest, property taxes, homeowner's insurance and homeowner's association dues paid on an annual basis divided by 12. "Party/Parties" shall have the meaning set forth in the introductory paragraph preceding the Recitals of this Agreement. "P FFP" shall have the meaning set forth in Recital E. "P FFP Fees" shall have the meaning set forth in Recital H. "Planning Commission" shall have the meaning set forth in Recital F. "Prevailing Wage Laws" shall have the meaning set forth in Section 5.02. "Processing Fees" shall have the meaning set forth in Section 4.01. "Project" shall have the meaning set forth in Recital E. "Project Approvals" 'shall have the meaning set forth in Section 3.01. "Property" shall have the meaning set forth in Recital C. "Public Facilities" shall have the meaning set forth in Section 4.05. "Regional Traffic Fee" shall have the meaning set forth in Section 4.02. "RWE" means Redwood Equities, LLC, a California limited liability company, and its permitted successors and assigns. R WE is also referred to as Developer. "Second Unit" means an attached or a detached residential dwelling unit which . provides complete independent living facilities for one or more persons. It shall include permanent provisions for living, sleeping, eating, cooking and sanitation on the same parcel as a single-family dwelling is situated. "Site Map" means the map of the Property attached hereto as Exhibit A. "Special Tax" shall have the meaning set forth in Section 4.05. "Specific Plan" shall have the meaning set forth in Recital E. "Subdivision Map Act" shall have the meaning s~t forth in Section 3.08. "Subsequent Project Approvals" shall have the meaning set forth in Recital G. "Subsequent Discretionary Approvals" means all other Subsequent Project Approvals other than Subsequent Ministerial Approvals, including. amendments of the Project Approvals, improvement agreements, architectural review permits, use permits, 8 OAK #482] -8266-3] 75 v7 lot line adjustments, subdivision maps, rezonings, development agreements, permits that are not Subsequent Ministerial Approvals, resubdivisions, and any amendments to, or repealing of, any of the foregoing, are Subsequent Discretionary Approvals. "Subsequent Ministerial Approvals" means permits or approvals that are required by Applicable Law and that are to be issued upon compliance with uniform, objective standards and regulations. They include applications for road construction permits or authorizations; grading and excavation permits; building permits, including electrical, plumbing, mechanical, Title 24 Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy; encroachment permits; water connection permits; and any other similar permits required for the development and operation of the Project.. "Term" shall have the meaning set forth in Section 2.03. " Tentative Map" shall have the meaning set forth in Recital F. "Time of Sale " shall mean the close of escrow for any residential or commercial unit. Any payment that is due at the Time of Sale may be paid out of the escrow account for that residential unit or commercial unit. "Very Low Income Household" means a Household with an Annual Household Income of up to 50 percent of Median Income. ARTICLE 2. EFFECTIVE DATE AND TERM Section 2.01 Effective Date. This Agreement shall become effective upon the date that the ordinance approving this Agreement becomes effective ("Effective Date"). Section 2.02 Termination for Failure to Annex. If annexation proceedings annexing the Property to City have not been completed by the expiration of the Term of this Agreement as is authorized by Government Code Section 65865(b), and subject to the provisions of Section 9.06, this Agreement shall automatically terminate and neither Party shall have any rights or obligations hereunder except as provided in Section 9.08. Section 2.03 Term. The "Term" of this Agreement shall be the Initial Term together with the Extended Term. Section 2.04 Initial Term. The Term of this Agreement shall commence upon the Effective Date and shall extend for a period of ten (10) years thereafter ("Initial Term"). The Initial Term has been established by the Parties as a reasonable estimate of the time required to develop the Project, including all on- and off-site public improvements, and obtain the public benefits of the Project. Section 2.05 Extended Term. Provided neither City nor Developer have terminated this Agreement~ City and Developer agree that it may be mutually desirable for the Initial Term to be extended. Accordingly, Developer may request in writing that City extend the Initial Term of this Agreement for up to one (1) additional three (3) year 9 OAK #482]-8266-3]75 v7 period ("Extended Term"). Such written request may be delivered to City not earlier than two hundred seventy (270) days nor later than one hundred twenty (120) days prior to the termination date of the Initial Term. Section 2.06 City Review of Request for Extended Term. Upon receipt of such request, City shall undertake a review of Developer's good faith compliance with the terms of this Agreement in the same manner as set forth.in Section 9.05 for a periodic review of this Agreement. Developer and City shall comply with the provisions of Section 9.05 with respect to such review so that it can be completed prior to the expiration of the Initial Term. City may deny, condition, or shorten the time of Developer's request if, following such review, the City Council determines either of the following: (1) Developer is in default under this Agreement or any event has occurred which with the passage of time or giving of notice or both would constitute a default by Developer or (2) Developer has not fully satisfied all other material requirements and conditions of Project Approvals. If the Initial Term of this Agreement is extended in accordance with the provisions of this Section 2.05, City shall record an instrument giving notice of the Extended Term and the termination date thereof. Section 2.07 Termination Following Expiration. Following the expiration of the Term, or the earlier completion of development of the Project and all of Developer's obligations in connection therewith, this Agreement shall be deemed terminated and of no further force and effect, subject, however, to the provisions of Section 9.08 hereof. Section 2.08 Proiect Integration. The parties intend that the Property be developed as a single, integrated Project, however, it may be constructed in phases as set forth iri paragraph 3.03. Accordingly, this Agreement includes requirements for compliance with a valid, current Affordable Housing Ordinance. Such compliance could include compliance with the current AFO, or any modified or superseded AFO, as determined solely by RWE. This compliance may include: (i) integrated, phased development of the Affordable Units and the on- and off-site public improvements throughout the Project; (ii) limitations on the number of building permits and certificates of occupancy that will be issued to RWE prior to the completion of the Affordable Units and the completion of and dedication to City of various on- and off-site public improvements; (iii) payment of an in-lieu fee if allowed by law; (iv) any other mechanism allowed by the current Affordable Housing Ordinance, any valid modifications thereto or a valid successor ordinance. R WE acknowledges and agrees that (a) the on- and off-site public improvements to be constructed in connection with the Project are intended to serve and benefit the Property, (b) the Affordable Units or compliance with a valid Affordable Housing Ordinance and, if required, the construction of on- and off-site public improvements are vital and integral components of the oVE:rall Project, and (c) Developer's obligations with respect to a valid Affordable Housing' Ordinance and on- and off-site public improvements are material consideration for the agreements of City hereunder. In the event that R WE does not construct any dwelling units at all within the Project as contemplated by this Agreement during the Term, RWE shall have no obligation to construct any Affordable Units, comply with an AHO, comply 10 OAK #4821-8266-3175 v7 with the Affordable Housing Plan attached as Exhibit D or pay an affordable housing in- lieu fee. Section 2.09 Developer Representations and Warranties. RWE represents and warrants to City that, as of the Effective Date, R WE is the sole fee owner of the Propelty, and that no other person or entity holds any legal or equitable interests in the Property. R WE further represents and warrants that: A. As of the Effective Date, RWE: (i) is organized and validly existing under the laws of the State of California; (ii) has qualified and been authorized to do business in the State of California and has complied with all requirements pertaining thereto; (iii) is in good standing and has all necessary powers under the laws of the State of California to own property and in all other respects enter into and perform the undertakings and obligations of Developer under this Agreement; and (iv) is not in default with respect to payment of any general or special property taxes or assessments or other property based fees allocable to the Property. B. No approvals or consents of any persons are necessary for the execution, delivery or performance of this Agreement by RWE and its general partners, except as have been obtained; C. The execution and delivery of this Agreement and the performance of the obligations ofRWE hereunder have been duly authorized by all necessary partnership action and all necessary partnership approvals have been obtained; and D. This Agreement is a valid obligation ofRWE and is enforceable in accordance with its terms. ARTICLE 3. DEVELOPMENT OF PROPERTY Section 3.01 Vested Rights. The Property is hereby made subject to the provisions of this Agreement. All development of or on the Property, or any portion thereof, shall be undertaken only in compliance with the Existing Project Approvals, . Subsequent Project Approvals, Applicable Law and the provisions of this Agreement. Developer shall have a vested right to develop the Property in accordance with the following: Existing Project Approvals, Subsequent Project Approvals, Applicable Law, all other applicable laws including, but not limited to,the California Building, Plumbing and Fire codes, and this Agreement. The Project shall be subject to all Subsequent Project Approvals (which, upon final approval, shall be deemed part of the Existing Project Approvals hereunder). The Existing Project Approvals and the Subsequent Project Approvals are sometimes hereinafter referred to as the "Project Approvals". Section 3.02 Applicable Law and Proiect Approvals. A. Except as is set forth herein in paragraphs 4.04,5.04, and the Affordable Housing Plan, attached hereto as Exhibit D, the rules, regulations, official policies, standards and specifications applicable to the development of the Property shall 11 OAK #4821-8266-3175 v7 be those set forth in the Project Approvals and this Agreement, and, with respect to matters not addressed by these documents, those laws, rules, regulations, Official Policies, standards and specifications (including City ordinances and resolutions), to the extent not inconsistent with the Project Approvals, governing permitted uses, building locations, timing of construction, densities, design, heights, fees, and exactions in force and effect on the Effective Date ("Applicable Law"). Failure to include in the Project . Approvals and Applicable Law any rule, regulation, Official Policy, standard or specification that is within the Applicable Law and Project Approvals as described in this provision shall not affect the applicability of such rule, regulation, Official Policy, standard or specification. B. Prior to the Effective Date of this Agreement, the Parties shall prepare two (2) sets of the Project Approvals one (1) set for City and one (1) set for Developer, to which shall be added from time to time, Subsequent Project Approvals, so that if it becomes necessary in: the future to refer to any of the Project Approvals there will be a common set available to the Parties. Section 3.03 Development Timing. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the phases of the Project will be developed or the order in which each phase will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, absorption, completion and other similar factors. In particular, and not in any limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. The City of Camarillo, 37 Cal.3d 465 (1984), that the failure ofthe parties therein to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting the timing of development prevailing over such parties' agreement, it is the Parties' desire to avoid that result by acknowledging that, unless otherwise provided for in this Agreement, Developer shall have the vested right to develop the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its business judgment, subject to the terms, requirements and conditions of the Existing Approvals and this Agreement. Developer will use its best efforts, in accordance with its own business judgment and taking into consideration market conditions and other economic factors influencing Developer's business decision, to commence or to continue development, and to develop the Project in a regular, progressive and timely manner in accordance with the provisions and conditions of this Agreement and the Existing Approvals. Section 3.04 Issuance of Building Permits In Accordance with City's Growth Management Program. Developer acknowledges the legality and validity of, covenants not to challenge, and agrees to comply with the provisions of City's Growth Management Program (City Municipal Code section 17.19 et seq.), which regulates and limits the number of market rate residential building permits that City may issue each year. In accordance with such program and subject to the limitations of this Section 3.04, Developer shall be issued up to one hundred and seventy-five (175) building permits for marketrate units during the first calendar year of the Term within which the Sonoma 12 OAK #4821-8266-3175 v7 County Local Agency Formation Commission approves the annexation of the Property to the City; up to one hundred and fifty (150) building permits for each ofthe second and third calendar years ofthe Term thereafter; provided, however, the total allocation of building permits for market rate units within the Project shall not exceed a cumulative total of four hundred and seventy five (475) residential permits. Building permits which are not used during the calendar year in which they are issued may be used in any subsequent calendar year during the Term of this Agreement. Developer shall submit application to City and pay all applicable fees then due prior to issuance of any such building permits. The building permits allocated annually to Developer shall be used exclusively in connection with development of the Project on the Property and may not be transferred to any other property or prope11ies. Section 3.05 Reservations of Authority. A. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions contained in this Agreement are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed to reserve to City all such power and authority which cannot be restricted by contract. Notwithstanding the foregoing reservation of City, it is the intent of City and Developer that this Agreement shall be construed to provide Developer with the maximum rights affordable by law, including but not limited to, the Development Agreement Statute, California Planning and Zoning Laws, and the Subdivision Map Act, except as expressly provided elsewhere in this Agreement. B. Notwithstanding any other provision of this Agreement to the contrary, the following regulations and provisions shall apply to the development of the Property: (1) Processing fees and charges of every kind and nature imposed by City to cover the actual costs to City of processing applications for Project Approvals, including but not limited, to staff and legal time or for monitoring compliance with any Project Approvals granted or issued, as such fees and charges are adjusted from time to time. (2) Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, provided such procedures are uniformly applied on a city-wide basis to all substantially similar types of development projects and properties. (3) Regulations governing City engineering design and construction standards and specifications including, without limitation, the City's building code, plumbing code, mechanical code, electrical code, fire code and grading code, and all other uniform construction codes then applicable in City at the time of permit application. 13 OAK #4821-8266-3175 v7 (4) New City Laws which may be in conflict with this Agreement or the Project Approvals but which are necessary to protect the public health and safety, provided such new City Laws are uniformly applied on a city- wide basis to all substantially similar types of development projects and properties. (5) New City Laws applicable to the Property, which do not conflict with this Agreement or the Project Approvals, provided such new City Laws are uniformly applied on a city-wide basis to all substantially similar types of development projects and properties. Section 3.06 Regulation by Other Public Agencies. City and Developer acknowledge and agree that other public agencies not within the control of City possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Developer shall, at the time required by Developer in accordance with Developer's construction schedule, apply for all such other permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Project. It is anticipated that Developer will pay all required fees and will work cooperatively with all other responsible and trustee agencies with regulatory control over the Property. Section 3.07 Life ofProiect Approvals. The term of any and all Project Approvals shall automatically be extended for the longer of the Term ofthis Agreement or the term otherwise applicable to such Project Approvals. Section 3.08 Vesting Tentative Maps. If any tentative map heretofore or hereafter approved in connection with development of the Property is a vesting map under the Subdivision Map Act, Government Code SS 66410 et seq. ("Subdivision Map Act''), and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to Developer for development of the Project, then and to that extent all rights and protections afforded Developer under the laws and ordinances applicable to vesting maps shall survive. Section 3.09 Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild portions of the Project at any time within the Term of this Agreement should it become necessary due to natural disaster or changes in seismic requirements. Such renovations or reconstruction shall be processed as a Subsequent Project Approval. Any such renovation or rebuilding shall be subject to all design, density and other limitations and requirements imposed by this Agreement, and shall comply with the Project Approvals, the building codes existing at the time of such rebuilding or reconstruction, and the requirements ofCEQA. Except as and to the extent required by State or Federal law; or as may be reasonably necessary to comply with requirements of, and/or pass through rate and/or connection fee increases established by, other local governmental agencies, including sub-regional sewer and water system connection fees established by the City of Santa Rosa ("Other Local Agency Compliance Fees''); or as 14 OAK #482]-8266-3]75 v7 otherwise provided in this Agreement, City shall not impose on the Project any ordinance, resolution, rule, regulation, standard, official policy, condition, or other measure (each, individually, a "City Law") that is in conflict with the Applicable Law, this Agreement or the Project Approvals or that reduces the development rights or assurances provided by this Agreement. Section 3.10 Initiatives and Referenda. If any City Law is enacted or imposed by a citizen-sponsored initiative or referendum or by the City Council directly or indirectly in connection with any proposed iJ).itiative or referendum, which City Law would conflict with the Project Approvals, Applicable Law or this Agreement or reduce the development rights or assurances provided by this Agreement, such City Law shall not apply to the Property or Project; provided, however, the Parties acknowledge that City's approval of this Agreement is a legislative action subject to referendum. Developer agrees and understands that City does not have authority or jurisdiction over any other public agency's ability to grant governmental approvals or permits or to impose a moratorium or other limitations that may affect the Project. City shall cooperate with Developer and, at Developer's expense, shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City, except to submit to vote of the electorate initiatives and referendums required by law to be placed on a ballot, shall not support, adopt, or enact any City Law, or take any other action which would violate the express provisions or intent of this Agreement or Project Approvals. Section 3.11 Environmental Mitigation. The Parties understand that the EIR is intended to be used not only in connection with the Existing Project Approvals, but also in connection with the Subsequent Project Approvals needed for the Project. Consistent with the CEQA streamlining policies applicable to specific plans, including but not . limited to California Code of Regulations Title 14, Section 15182, City agrees to use the EIR in connection with the processing of any Subsequent Approval to the maximum extent allowed by law and consistent with the requirements of CEQA. Further, City shall rely on the exemption referenced in CEQA Guideline 15182 to the fullest extent permitted by law. To the extent supplemental or additional environmental review is required in connection with Subsequent Project Approvals, Developer acknowledges that City may require additional mitigation measures that were not foreseen at the time this Agreement was executed. Section 3.12 Subdivision Maps. The Parties intend that the final subdivision maps for the Project will be prepared and submitted by Developer in phases such that the number of residential lots for which a final map has been recorded will at all times track the number of residential building permits allocated and issued to Developer. Accordingly, unless otherwise approved by the City Manager or his or her designee in his or her sole discretion, no final subdivision map shall be considered for approval or be approved by City to the extent the sum total of all previously created residential lots plus the number of lots shown on the proposed final map exceed the sum total of all residential building permits previously issued to Developer plus the maximum number of building permits that may be allocated to 15 OAK #482]-8266-3]75 v7 Developer pursuant to Section 3.04 above for the calendar year in which the final map application is submitted and the two calendar years immediately there following, which shall not exceed a total of four hundred seventy five (475) building permits. Section 3.13 State and Federal Law. As provided in section 65869.5 of the Development Agreement Statute, this Agreement shall not preclude the applicability to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in State or Federal laws or by changes in laws, regulations, plans or policies of special districts or other governmental entities, other than the City, created or operating pursuant to the laws of the State of California ("Changes in the Law"). In the event Changes in the Law prevent or preclude compliance with one (1) or more provisions of this Agreement, the Parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and City and Developer shall agree to such action as may be reasonably required. This Agreement and the Project Approvals shall remain in full force and effect unless and until amended in accordance with the requirements of this Agreement, and, in any event, this Agreement and the Project Approvals shall remain in full force and effect to the extent the same are not inconsistent with such laws or regulations. Nothing in this Agreement shall preclude City or Developer from contesting by any available means (including administrative or judicial proceedings) the applicability to the Project any such Changes in the Law. Notwithstanding the foregoing, if Changes in the Law preclude or substantially limit or delay performance in a manner that makes the Project economically infeasible, the Party adversely affected, in its sole and absolute discretion, may terminate this Agreement by providing written notice of such termination to the other Party. Section 3.14 Certificates of Occupancy. Subject to the provisions of this Article 3, the Parties acknowledge and agree that Certificates of Occupancy for any residential or commercial structure are ministerial permits and that the City shall issue each and every Certificate of Occupancy, so long as Developer complies with all of the following: this Agreement, the Existing Project Approvals, Subsequent Project Approvals, Applicable Law, and all other local, state, federal or applicable laws including, but not limited to, the California Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code. ARTICLE 4. FINANCING AND PUBLIC IMPROVEMENTS Section 4.01 Taxes, Assessments, Fees and Exactions. A. City may impose and Developer agrees to pay any new, increased or modified taxes and assessments, and other fees or other monetary and non-monetary exactions, whether imposed as a condition of or in connection with any Subsequent Ministerial Approvals or Subsequent Discretionary Approvals or otherwise, in accordance with the laws then in effect, but only if such taxes, assessments, fees or other monetary and non-monetary exactions are equally imposed and have a uniform and 16 OAK #4821-8266-3175 v7 proportionate effect on a broadly based class of land, projects or taxpayers, as applicable, within the jurisdiction of the City. B. City may charge and Developer agrees to pay all processing fees, application, inspection and monitoring fees, and staff and legal fees, except Developer will not pay for staff time associated with administration of inspectors, consultants, or experts for which Developer pays the twenty percent (20%) City administration charge provided for in section 4.01 E and F below, ("Processing Fees"), for land use approvals, grading and building permits, general plan maintenance fees, and other permits and entitlements, which are in force and effect on a City-wide basis at the time those permits, approvals or entitlements are applied for on any or all portions of the Project, and which are intended to cover the actual costs of processing the foregoing. C. City may charge and Developer agrees to pay all City fees related to water and sewer ("Water/Sewer Fees"), which are in force and effect on a City-wide basis at the time those Water/Sewer Fees are payable at the rates then in effect. D. City may charge and Developer agrees to pay any new, increased or modified taxes or assessments, impact fees or other monetary and non-monetary exactions, whether imposed as a condition of or in connection with any Subsequent Project Approvals or otherwise, which are uniformly imposed and reasonably necessary to comply with the requirements of any Federal or State statute or regulation which is enacted or adopted after the Effective Date ofthis Agreement ("Federal/State Compliance Fees'l E. In addition to charging the foregoing Processing Fees, City may, in its sole discretion, contract with one (1) or more outside inspectors, engineers or consultants to perform all or any portion of the monitoring, inspection, testing and evaluation services to be performed in connection with construction and development of the Project or in connection with the periodic review of the Agreement under section 9.05 ("Consultant Fees"). Developer shall pay to City, within thirty (30) days following City's written demand therefore, the full amount of all Consultant Fees, plus a twenty percent (20%) City administration charge. City shall provide copies of consultant bills that City asks Developer to pay pursuant to this paragraph at the same time that the City submits an invoice seeking payment to Developer. In the event that a consultant bill contains attorney-client privileged communications, City may redact those portions of the consultant bill that are privileged. The Consultant Fees, together with the associated administrative charge, shall be in addition to, and not in lieu of, the Processing Fees. The City shall not double-charge Developer through the imposition of both a Processing Fee and Consultant Fee. F. City may engage one (1) or more outside architectural firms to review and evaluate Developer's architectural plans and drawings for the Project, to ensure that the Project complies with the approved architectural guidelines, and to advise City and the Planning Commission in connection with design review. City shall cooperate with Developer in establishing a scope of work and budget(s) for said 17 OAK #482]-8266-3]75 v7 architectural firm(s), however the final scope shall be at the City's sole discretion. City agrees that the scope of work to be undertaken by the firm(s) shall be reasonable in light of the size, type and complexity of the Project. Developer shall pay to City, within thirty (30) days following City's written demand therefore, the full amount of all costs and fees charged by such outside architects ("Architect Fees"), plus a twenty percent (20%). City administration charge. City shall provide copies of architectural bills that City asks Developer to pay pursuant to this paragraph at the same time that the City submits an invoice seeking payment to Developer. In the event that an architectural bill contains attorney-client privileged communications, City may redact those portions of the consultant bill that contain privileged information. In addition, Developer shall pay to City the actual cost of all City staff time incurred in connection with the review of Developer's architectural plans and drawings. Section 4.02 Regional Traffic Improvement Fee. A. Unless otherwise set forth herein, Developer agrees to pay for each residential and/or commercial unit or building within the Project, any future regional traffic improvement impact fee enacted by City (or by City, other area municipalities and/or the County of Sonoma) pursuant to the Mitigation Fee Act (Government Code Section 66000, et seq.) that is consistently applied on a city-wide basis to all substantially similar types of development projects ("City-wide Traffic Impact Fee"). If no City-wide Traffic Impact Fee has been enacted at the time of issuance of a building permit for such residential or commercial unit or building, then Developer shall pay City, at the Time of Sale of the single-family residence or other dwelling unit and out of the escrow account for the sale, a fee ("Regional Traffic Fee") equal to three thousand and forty seven dollars ($3,047) for each market rate residential unit to mitigate the regional traffic impacts of the Project. B. In the event that City adopts a City-wide Traffic Impact Fee which is less than and replaces the Regional Traffic Fee, Developer shall pay the City-wide Traffic Impact Fee and one-half (1/2) of the difference between the Regional Traffic Fee of $3,047 and the City-wide Traffic Impact Fee to City at the Time of Sale for each market rate residential unit. It is understood by the Parties that neither the fees required by the PFFP or this Agreement are considered duplicate fees. Any fee paid under this paragraph shall be paid no later than the Time of Sale of the single-family home or other dwelling unit, and may be paid out of the escrow account for that sale. For rental units, the fees for each market rate residential unit shall be paid at time of issuance of Building Permit for the building containing the rental units. C. Developer shall be entitled to a credit against the Regional Traffic Fee for Developer's actual out-of-pocket costs paid to unaffiliated third parties in connection with Developer's construction and installation of City approved regional traffic improvements, if any. For purposes ofthis Section 4.02, City approved regional traffic improvements shall include regional roadway and traffic improvements that mitigate regional traffic impacts identified in the EIR, as selected by City from time to time in its discretion. Roadway and traffic improvements included within the PFFP or 18 OAK #482]-8266-3]75 v7 required by the Project Approvals or the MMRP, shall not be considered City approved regional traffic improvements for purposes of this Section 4.02. All Regional Traffic Fees paid by Developer shall be held by City in a separate account and used exclusively for City approved regional traffic improvements which mitigate regional traffic impacts identified in the EIR. City in its sole discretion shall have the option of trans felTing any fees paid .under this section to the Sonoma County Transportation Authority or other agency for the purpose of planning, designing, and/or constructing regional traffic improvements. , Section 4.03 Lump Sum Payment Related to Annexation. RWE shall pay, a one-time fee oftwo-hundred and fifty-thousand dollars ($250,000) to the City upon the occurrence of any of the following: (i) the City has submitted to the Sonoma County Local Agency Formation Commission an application containing the material as submitted to City by Developer for annexation of the Property into the City by January 1, 2011; or (ii) the City has submitted to the Sonoma County Local Agency Formation Commission an application containing the material as submitted to City by Developer for annexation of the Property into the City within thirty (30) calendar days.ofthe City receiving all required information and documentation from Developer necessary to complete the application. RWE shall pay this fee to City no later than ten (10) calendar days after the lapse of the longest statute oflimitations to challenge the Project Approvals or, in the event of litigation challenging any aspect of the Project, Project Approvals, at the time of the service of a final judicial decree finally resolving all matters related thereto, whichever is later. The Parties agree that the longest statute of limitations to challenge .the Project Approvals lapses ninety (90) calendar days after the Project Approvals are approved by the City Council. Section 4.04 In-Lieu Housing Fee. In the event the City adopts an AFO with an. in-lieu housing fee policy that may apply to the Project, Developer shall either comply with the modified Affordable Housing Ordinance and/or may in its sole discretion decide to pay the in-lieu fee in accordance with any subsequently adopted AFO without any further obligation to construct any affordable units. Section 4.05 Financing Mechanism for Public Facilities A. Public Facilities. Developer shall finance the design and construction of those public facilities necessary or desired by City in connection wi.th the Project, including (i) off-site public improvements required under this Agreement, (ii) on- site public improvements(collectively, "Public Facilities"). 19 OAK #4821-8266-3175 v7 B. Formation of Funding Mechanism. The Parties acknowledge that Developer's sources of funding for the Public Facilities have not been determined. Developer is currently evaluating its options, and the Parties contemplate that the Public Facilities may be funded by a community facilities district ("CFD") pursuant to the Mello-Roos Community Facilities Act of 1982 (Government Code Sections 53311, et seq.) ("Mello-Roos Act") or any other mechanism allowed by law ("Funding Mechanism"). While Developer has the option of funding the Public Facilities privately or by other means, Developer may, at Developer's sole and absolute discretion, elect to fund such construction through the establishment of a CFD ("CFD Election") or any other means allowed by law. In the event Developer makes a CFD Election, Developer shall provide notice to the City of its determination to fund the Public Facilities by a CFD, in which case financing for the Public Facilities shall be provided by: (i) the formation of a CFD for the Property pursuant to the Mello Roos Act, (ii) the issuance of bonds by the CFD ("CFD Bonds"), the proceeds of which would be used to construct and/or acquire the Public Facilities upon completion of their construction, to the extent to Proposed Public Facilities legally and feasibly may be financed and/or paid utilizing this method of financing, and (iii) an annual levy by the CFD of a special tax ("Special Tax") sufficient to pay principal and.interest on the CFD Bonds and annual administration, engineering, and inspection costs associated with the CFD, which CFD special tax shall be secured by recordation in the Official Records of the County of Sonoma of continuing liens against the Property. CFD districts will not be formed in phases; however, City will work with Developer to phase bond sales as necessary to satisfy the demands of the public credit market. Upon making such CFD Election, Developer shall agree to the following: 1. Developer's Consent. Developer shall irrevocably consent to the formation of a Funding Mechanism, as determined solely by Developer, the issuance of bonds, the imposition of taxes against the Property with respect thereto, and the apportionment of the costs and expenses of the Public Facilities, and waives any and all right of protest or objection with respect thereto. Developer has agreed to the financing provisions set forth in this Agreement and to perform the obligations hereunder in exchange for the consideration and benefits provided to Developer by City under this Agreement, including the vested right to develop the Property. Developer acknowledges and agrees that bonds shall not be issued to fund anyon-site public improv~ments or any other infrastructure or fees other than the Public Facilities. 2. City's Reservation of Discretion. It is expressly acknowledged, understood and agreed by the Parties that (i) City shall act independently, reserving full and complete discretion with respect to formation of any Funding Mechanism, (ii) nothing in this Agreement is intended to or shall abrogate or delegate City's discretionary powers or limit City's ability to adopt goals and policies with respect to formation of any Funding Mechanism, and (iii) nothing in this Agreement is intended to or shall prejudge or commit to City regarding the findings and determinations to be made with respect thereto. Without limiting the.generality of the foregoing, the Parties agree that the overall 20 OAK #4821-8266-3]75 v7 property tax rate (inclusive of property taxes, special taxes and assessments), if applicable, for each parcel included within the Funding Mechanism shall in no event exceed 1.75%. 3. Advance of Expenses; Reimbursement. Developer shall advance to City the actual out of pocket costs of formation of the Funding Mechanism, sale of bonds, and other costs and expenses associated with the Funding Mechanism ("Advanced Costs'ry. Such Advanced Costs may include, without limitation, legal, financial, appraisal and engineering costs and expenses associated with (i) formation of a district; (ii) determination of the rate and method of apportionment and levy ofthe Special Tax; (iii) review and approval of the plans and specifications for construction of the Public Facilities; (iv) determination of the value of property; (v) sale of bonds; and (vi) any other costs or expenses reasonably incurred in connection with establishing the Funding Mechanism. All such Advanced Costs, together with those reasonable out-of- pocket legal, engineering and financial services costs incurred by Developer directly related to establishment and implementation of the Funding Mechanism which have been approved by City Manager or his or her designee in his or her reasonable discretion and which may lawfully be financed shall only be reimbursed to Developer out of the bond proceeds of the Funding Mechanism or out of the CFD Bond proceeds should the Developer make a CFD Election. 4. Notification of Fees, Taxes, and Assessments. Developer shall provide advance and ongoing actual and conspicuous notice to all potential homeowners at the time of the signing of the purchase and sale agreement and also made part of the escrow closing documents, in a form and content to be pre- approved by the City prior to the execution of the first purchase and sale agreement of any and all fees, taxes, and assessments to be charged to any and all .purchasers ofreal property interests in the Project. Developer shall provide potential homeowners with a written and itemized notice of such projected costs and the manner in which they will be charged to the potential homeowner, which notice the potential homeowner shall sign. Developer shall retain a copy of each signed notice in Developer's files indefinitely and shall provide a copy of each such signed notice to City's Development Services Director within five (5) calendar days of the signing of the purchase and sale agreement. 5. Costs If No CFD Formed. In the event that City is unable to make the legally required findings in connection with the formation of the Funding Mechanism and the issuance of Bonds for any reason, City shall not be liable for any resulting costs to Developer or for reimbursement of any Advanced Costs and Developer shall nonetheless be responsible for constructing all of the Pubic Facilities at its expense (but subject to potential reimbursement of excess Eligible Costs as provided above) regardless of whether the costs thereof exceeds Developer's PFFP Fee obligation. 21 OAK #4821-8266-3] 75 v7 A. Developer's Cooperation. In connection with the establishment and implementation of the Funding Mechanism, Developer (i) will execute all necessary petitions and ballots and waive all election waiting and protest periods at City's request and prior to the issuance of any building permit on any Phase of the Project; (ii) support City's adoption ofJocal policies related to use of the Funding Mechanism; (iii) cooperate in the development of rate and method of apportionment or assessment formula; (iv) allow special tax liens to encumber all Phases of the Project in order to accomplish the required construction projects. B. Limited Liability of City. Notwithstanding any other provision of this Agreement, City shall not be liable for or obligated to pay any costs or expenses in connection with the Funding Mechanism or the Public Facilities except to the extent monies are available (from Advanced Costs, PFFP Fees collected in accordance with the PFFP, proceeds of bonds, or Special Taxes) and specifically authorized by law for payment of such costs or expenses. Section 4.06 Public Maintenance Fees. A. Developer shall pay public maintenance fees ("Maintenance Fees") to offset the projected fiscal deficit to City's General Fund created by the residential development within the Project to comply with the General Plan policies and goals. B. The following Maintenance Fees shall be paid by Developer: 1. A fee ("Pavement Maintenance Fee") equal to three hundred three dollars ($303) per residential unit per year at the times set forth in 4.06 C, below, for the purpose of mitigating the street maintenance and street pavement impacts of the Project, subject to CPI Adjustment as provided in Section 4.14. 2. A fee ("Public Service Impact Fee") equal to nine hundred and twenty-one dollars ($921) per residential unit per year at the times set forth in 4.06 C, below, for the purpose of mitigating the additional service costs of City as a result of the Project, subject to CPI Adjustment as provided in Section 4.14. 3. A fee ("Maintenance of On-site Infrastructure Fee") equal to four hundred sixty six dollars ($466) per residential unit per year at the times set forth in 4.06 C, below, for the purpose of mitigating the ongoing service costs of maintaining public improvements within the Project, subject to CPI Adjustment as provided in Section 4.14. C. Developer shall pay to City the Pavement Maintenance Fee, Public Service Impact Fee, and Maintenance of On-site Infrastructure Fee at the following times: (i) initially, at the time of issuance of the building permit for each residential unit within the Project; and (ii) subsequently, not later than April 30 each year following the year of initial payment and continuing in perpetuity, provided that at least twelve (12) 22 OAK #482]-8266-3J75 v7 months shall elapse between the date of initial payment and the first subsequent payment. Developer shall ensure the on-going payment of the Maintenance Fees by establishment of service and/or maintenance districts, property owner and homeowner associations, services CFD as allowed under the Mello-Roos Act, or other mechanisms which shall be responsible for making the annual Maintenance Fees payment in perpetuity ("Maintenance Fee Funding Mechanism"). The Maintenance Fee Funding Mechanism shall be subject to City approval, and all relevant documents, agreements, and, as applicable, property owner and homeowner association documents, including the conditions, covenants and restrictions, shall expressly provide language to that effect in addition to language that the City shall be a third party beneficiary with the right to independently enforce such associations' obligations, which language shall be reviewed and approved by the City Attorney. D. Satisfaction of Contribution Obligations. The establishment of a Maintenance Fee Funding Mechanism and payment of all applicable Pavement Maintenance Fees, Public Service Impact Fees and Maintenance of On-site Infrastructure Fee shall satisfy and conclusively discharge Developer's obligations to contribute toward any and all other City maintenance annuity funds which Developer might otherwise be obligated to contribute toward in the absence of this obligation. Section 4.07 Mitigation ofProiect Impacts on Valley House Drive. Developer shall pay City, at the Time of Sale of the single-family residence or other dwelling unit and out of the escrow account for the sale, a fee equal to one thousand dollars ($1,000) for each market rate residential unit to mitigate a portion of the impacts from construction traffic on collector roads. Section 4.08 Additional Service Personnel Fee. Developer shall pay a fee ("Additional Service Personnel Fee'') equal to five-hundred and eighteen dollars ($518) per residential unit at the time of building permit issuance for that unit, to offset the cost of additional public safety personnel, such as police officers and fire-fighters, to serve the Project subject to CPI Adjustment as provided for in Section 4.14. Section 4.09 Public Facilities Financing Plan. A. City has prepared and adopted the PFFP in order to identify capital facilities necessary to serve new development, and to develop a comprehensive strategy for managing the financing of such facilities, among other purposes. Developer shall participate in the PFFP and any amendments thereto applicable to the Project. Developer and City agree that the terms and provisions of the PFFP shall apply to the financing of public improvements necessary to serve the Project. Developer further agrees to formulate a public finance plan sufficient to address all improvements necessary for each phase of the Project for review and approval by the City Council upon recordation of the final map for that phase. 23 OAK #482]-8266-3]75 v7 B. Developer shall pay City the PFFP Fees in effect at the time of issuance of each building permit. Developer further agrees to and accepts the "fair share" methodology for allocating costs among planned development projects, including the Project, and existing development within City as set forth in the PFFP as of the Effective Date. Developer acknowledge and agrees that City may update the amount of the PFFP Fees from time to time, as City deems necessary and appropriate. Developer hereby covenants not to sue City in connection with, and waives any and all rights to challenge, the PFFP, including any updates to the PFFP, on any grounds whatsoever. C. Notwithstanding any provision of the PFFP to the contrary, Developer shall be entitled to receive credits against PFFP Fees for those improvements included in the PFFP and constructed by Developer, at the lesser of: (i) Developer's actual out-of-pocket cost and expenses paid to unaffiliated third parties in connection with the construction and installation of such improvements, or (ii) the designated cost amounts for such improvements set forth in the PFFP at the time City approves the plans for such improvements ("Eligible Cost"). To the extent the aggregate Eligible Cost of all PFFP improvements constructed by Developer exceeds Developer's total PFFP Fee obligation with respect to the Project, City and Developer shall enter into a separate reimbursement agreement, in a form reasonably acceptable to the City Attorney, whereby Developer will be reimbursed from available PFFP funds paid in the future by third party developers at the time such funds are paid to City. City shall have the right to use PFFP funds paid by other developers for certain critical infrastructure facilities before reimbursements are made available to Developer. Developer shall maintain and make available to City and its representatives, for review and/or audit from time to time, records of all costs and expenses which are subject to potential reimbursement pursuant to the reimbursement agreement. Section 4.10 Financing Mechanisms for Private Improvements. Prior to approval of any final map within the Project, Developer shall prepare and submit to the City Manager or the Manager's designee for review and approval a plan, that may include establishment of property owner and homeowner associations, to ensure payment of the on-going costs of operation, maintenance, repair and replacement of all private open space, private recreation and private parks, private landscaped areas and private alleys and all water quality detention basins and facilities included within such final map. In proposing a particular plan to City, Developer shall demonstrate to the satisfaction of City Manager or his or her designee that funding of such on-going costs is economically sound and feasible; approval of the mechanism for funding such ongoing costs by the California Department of Real Estate shall create a presumption that such funding mechanism is economically sound and reasonable. Following City's acceptance, City shall be responsible for maintaining, operating, repairing and replacing, as necessary, the water quality detention basins and facilities, and the property owner and homeowner associations (and not City) shall be solely responsible for bearing all costs in connection with such City maintenance, operation, repair and replacement: City shall be named as an express third party beneficiary under all property owner and homeowner association documents with the right to independently enforce such associations' obligation to pay all costs of maintaining, operating and repairing the water quality detention basins and 24 OAK #4821-8266-3175 v7 facilities. The form of Developer's homeowner and property owner association documents, including conditions, covenants and restrictions, shall be subject to review and approval by the City Attorney. Section 4.11 Roadway Improvements. Developer, at its expense, shall design, construct and thereafter dedicate to City the roadway improvements set forth in the Southeast Area Specific Plan. With regard to roadway improvements to that one-foot strip of land between the Southeast Specific Plan property and Valley House Drive, more particularly described in Exhibit "A", Developer will comply with Rohnert Park Municipal Code Section 16.14.010. Section 4.12 Public Improvements. A. Public Park. Prior to the issuance of a building permit for the first residential unit on the Property, Developer shall commence construction of the public park located in the southwest corner of the Property. Construction of the public park improvements shall be completed and open for use to the public within fifteen (15) months following commencement of such work. City shall not issue more than two hundred (200) residential building permits, cumulative, within the Project prior to the completion of such public park area improvements. B. Immunity. Nothing in this Agreement shall be construed as modifying or vitiating any immunity or defense available to Developer under Government Code section 831.4 or any other relevant law for dedicating any trail connection, park or multi-use trail to the City. C. Water Storage Tank. Prior to issuance of the twenty-fifth (25th) building permit for the first residential unit on the Property, Developer shall construct and install a water storage tank that will store 438,000 gallons of water in the location identified in Exhibit "E" with specifications as described in Exhibit "F." The water storage tank shall comply with all standards set forth in the California Building Code in effect at the time that tank is constructed. Developer shall dedicate the water storage tank to City upon its completion D. Storm Water Detention Basin. Prior to issuance of a building permit for the fifteenth (15th) residential unit on the Property or completion of the first application of asphalt on streets adjacent to the park, whichever is earlier. Developer shall construct and install a 1.8 acre storm water detention basin in a location identified in Exhibit "G" with specifications as described in Exhibit "H". The storm water detention basin shall comply with all applicable laws and regulations in effect at the time that this Agreement is approved. Developer shall dedicate Basin to City upon its completion. Section 4.13 Acquisition of Land Owned by Third Parties. In any instance where Developer is required to construct any PFFP or public improvement on land not owned by Developer, Developer, at its sole cost and expense, shall acquire or fund the 25 OAK #482]-8266-3]75 v7 acquisition of, the real property interests necessary for the construction of such public improvements and shall comply with Rohnert Park Municipal Code section 16.14.010. If requested by Developer, where the affected property owner has rejected an offer by Developer based upon market value as determined by an appraisal prepared by a City approved appraiser in cooperation with City, and upon Developer's provision of adequate funding, City shall promptly and timely negotiate and seek the purchase of the necessary real property interests to allow Developer to construct the public improvements as required by the Project Approvals. Under these circumstances, in accordance with the procedures established by law, including Government Code Section 66462.5(a), requiring approval of a final map where neither the subdivider nor public agency has an interest in land sufficient to allow offsite improvements to be constructed or installed where City fails to acquire the necessary property interests by negotiation, City shall consider use of its power of eminent domain to acquire such real property interests. Developer shall pay all costs associated with such acquisition or condemnation proceedings. Nothing herein is intended to or shall prejudge or commit City regarding any findings and determinations required to be made in connection with adoption of a resolution of necessity. Section 4.14 Fee Escalation. The following fees shall be subject to annual adjustment to reflect regular increases in costs and other escalations related to inflation ("CPI Adjustment') (i) the Regional Traffic Fee, (ii) Pavement Maintenance Fee; (iii) the Public Service Impact Fee; (iv) the Maintenance of On-site Infrastructure Fee; (v) the Additional Service Personnel Fee. All such fees shall be subject to periodic adjustment' as follows: the amounts shall be increased on the first anniversary of the Effective Date and each year thereafter (each, an "Adjustment Date') to equal the sum of (i) the initial amounts set forth above, plus (ii) the product obtained by multiplying such amount by the percentage increase in the Consumer Price Index measured from the measuring month nearest the Effective Date, to the measuring month nearest the Adjustment Date; provided, however, in no event shall the amounts be reduced below the initial amounts set forth above. As used herein, the term "Consumer Price Index" means the United States Department of Labor's Bureau of Labor Statistics Consumer Price Index, All Urban Consumer, All Items, San Francisco-Oakland-San Jose, California (1982-1984 equals 100), or the successor of such index. ARTICLE 5. DEVELOPMENT STANDARDS AND REQUIREMENTS Section 5.01 Compliance with State and Federal Law. Developer, at its sole cost and expense, shall comply with requirements of, and obtain all permits and approvals required by, regional, State and Federal agencies having jurisdiction over the Project. Section 5.02 Prevailing Wage Requirements. A. Developer acknowledges and agrees that all improvements paid for directly or indirectly with the proceeds of CFD Bonds or other public funds will constitute construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds as provided under California 26 OAK #4821-8266-3175 v7 Labor Code Section 1720. Accordingly, Developer shall comply with, and cause its contractors and subcontractors to comply with, all State Labor Code requirements and implementing regulations of the Department of Industrial Relations pertaining to "public works," including the payment of prevailing wages in connection with development of the Project (collectively, "Prevailing Wage Laws"). Developer shall require the contractor for the Project or any portion thereof involving any such publicly financed improvements, to submit, upon request by City or County, as applicable, certified copies of payroll records to City, and to maintain and make records available to City and its designees for inspection and copying to ensure compliance with Prevailing Wage Laws. Developer shall also include in each of its contractor agreements, a provision in form acceptable to City, obligating the contractor to require its contractors and/or subcontractors to comply with Prevailing Wage Laws, and to submit, upon request by City, certified copies of payroll records to City and to maintain and make such payroll records available to City and its designees for inspection and copying during regular business hours at the Property or at another location within City. B. Developer shall defend (with counsel reasonably acceptable to the City), indemnify, assume all responsibility for, and hold harmless City and its officers, officials, employees, volunteers, agents and representatives from and against any and all present and future liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and costs). arising out of or in any way connected with Developer's or its contractors' obligations to comply with all Prevailing Wage Laws, including all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781. Section 5.03 Sale Tax Point of Sale Designation. Developer shall use good faith efforts torequire all persons and entities providing bulk lumber, concrete, structural steel and pre-fabricated building components, such as roof trusses, to be used In connection with the construction and development of, or incorporated into, the Project, to designate City as the sole point-of-sale for purposes of computing sales taxes due under the Bradley-Burns Uniform Local Sales and Use Tax Law (California Revenue and Taxation Code sections 7200 et seq. and implementing regulations) on the sale of such bulk construction and building materials and components. Section 5.04 Affordable Housing Plan. Developer shall comply with the provisions of the Affordable Housing Plan for the Project, attached hereto as Exhibit D ("Affordable Housing Plan"). The Parties intend for RWE to comply with either the existing Affordable Housing Ordinance or any successor or modified ordinance. By entering into this Agreement, the Parties intend for RWE to decide, as determined solely by RWE, how to comply with the current or a revised or successor AHO and for RWE to benefit from any reductions or other modifications in the ordinance, but under no circumstances shall RWE's affordable housing obligations be greater than the current form of AHO. RWE agrees, however, to comply with either the current AHO or any subsequent AHO, at RWE's discretion. 27 OAK #482]-8266-3]75 v7 ARTICLE 6. MORTGAGEE PROTECTION Section 6.01 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording the Agreement, including the lien of any de'ed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee'~, who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, eviction or otherwise. Section 6.02 Mortgagee Not Obligated. Notwithstanding the provisions of Section 6.01 above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any use except in full compliance with the Project Approvals nor to construct any improvements thereon or institute any uses other than those uses or improvements provided for or authorized by the Agreement, or otherwise under the Project Approvals. Section 6.03 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City agrees to use its best efforts to deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default, and if City makes a determination of noncompliance hereunder, City shall likewise use its best efforts to serve notice of such noncompliance on such Mortgagee concurrently with service thereon on Developer. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in City's notice. If a Mortgagee shall be required to obtain possession in order to cure any default, then vis-a-vis the Mortgagee, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure but in no event may this period exceed eighteen (18) months from the City's notice. ARTICLE 7. COOPERATION AND IMPLEMENTATION Section 7.01 Subsequent Proiect Approvals. Developer and City acknowledge apd agree that Developer intends to submit applications for Subsequent Ministerial Approvals. City and Developer acknowledge and agree that neither Party anticipates or foresees that any Subsequent Discretionary Approvals will be required in order to complete and construct the Project. Developer acknowledges that it may submit an application to amend or otherwise modify this Agreement, which may trigger the need for 28 OAK #4821-8266-3175 v7 new discretionary approvals, which will be called "Subsequent Discretionary Approvals" for purposes of this Agreement. In connection with any Subsequent Project Approval, the City shall exercise its discretion in accordance with Applicable Law, the Project Approvals and, as provided by this Agreement, including the reservations of authority set forth in Section 3.05. Section 7.02 Processing Applications for Subsequent Proiect Approvals. A. Developer acknowledges that City cannot begin processing applications for Subsequent Project Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (ii) cause Developer's planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other materials required under Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent Project Approvals. B. Upon submission by Developer of all appropriate applications and processing fees for any pending Subsequent Project Approval, City shall, to the full extent allowed by law, promptly and diligently, subject to City ordinances, policies and procedures regarding hiring and contracting, commence and complete all steps necessary to act on Developer's currently pending Subsequent Project Approval applications including without limitation: (i) providing at Developer's expense and subject to Developer's request and prior approval, reasonable overtime staff assistance, additional staff and/or staff consultants for concurrent, expedited planning and processing of each pending Subsequent Project Approval application; (ii) iflegally required, providing notice and holding public hearings; and (iii) acting on any such pending Subsequent Project Approval application. C. Nothing herein shall limit the ability of City to require the necessary reports, analysis or studies to assist in determining that the requested Subsequent Ministerial Approval is consistent with this Agreement and the Existing Project Approvals. If the City determines that an application for a Subsequent Ministerial Approval is not consistent with this Agreement or the Existing Project Approvals and should be processed as an application for a Subsequent Discretionary Approval rather than a Subsequent Ministerial Approval, the City shall specify in writing the reasons for such determination and may propose a modification which would be processed as a Subsequent Ministerial Approval. Developer shall then either modify the application to conform to this Agreement and the Existing Project Approvals, as the case may be,or the City shall process the application as an application for a Subsequent Discretionary Approval; provided, however, that Developer shall have the right to dispute the City's determination pursuant to Section 9.07 hereof. D. City shall process Developer's applications for Subsequent Project Approvals to the fullest extent allowed by Applicable Law and Developer may proceed 29 OAK #482]-8266-3175 v7 with Subsequent Project Approvals as provided for herein to the fullest extent allowed by Applicable Law. Section 7.03 Administration of Subsequent Proiect Approvals A. Subsequent Ministerial Approvals shall be reviewed and processed by the City in accordance with Applicable Law. If the City denies any application for a Subsequent Ministerial Approval, the City must specify in writing the reasons for such denial and may suggest a modification which would be approved. Any such specified modifications must be consistent with the Existing Project Approvals and Applicable Law, and the City shall approve the application if it is subsequently resubmitted for City review and addresses the reason for the denial in a manner that is consistent with this Agreement, the Project Approvals and Applicable Law. B. Applications for Subsequent Discretionary Approvals shall be reviewed and processed by the City in accordance with Applicable Law. If the City denies any application for a Subsequent Discretionary Approval, the City must specify in writing the reasons for such denial and may suggest a modification which would be approved. Any such specified modifications must be consistent with this Agreement and . Applicable Law, and the City shall consider the application if it is subsequently resubmitted for the City review and addresses the reason for the denial in a manner that is consistent with this Agreement, the Project Approvals and Applicable Law. Section 7.04 Changes and Amendments to Proiect Approvals. A. Given the long term build-out of the Project, the Parties acknowledge that modifications or amendments to the Project Approvals may be appropriate and mutually desirable. To the extent permitted byApplicable Law, any Project Approval may, from time to time, be amended or modified in the following manner: (1) Upon the written request of Developer for an amendment or modification to a Project Approval, the City Manager or the City Manager's designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the City Manager finds, in his or her sole discretion, that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the EIR, the amendment shall be determined to be an "Administrative Project Amendment" and the City Manager may approve the Administrative Project Amendment consistent with City's procedures for such administrative actions, including any requirements for'notice, public hearing and appeal rights. (2) Any request of Developer for an amendment or modification to a Project Approval which is determined by the Development 30 OAK #4821-8266-3175 v7 Services Director or his/her designee not to be an Administrative Project Amendment as set forth above shall be deemed a "Non-administrative Project Amendment" and shall be subject to review, consideration and action pursuant to the Project Approvals, Applicable Law and this Agreement, as applicable. (3) Administrative Project Amendments shall not require an amendment to this Agreement. (4) This Agreement and the Affordable Housing Plan attached hereto as an exhibit give Developer discretion to determine whether it intends to pay an in-lieu fee if the AHO is amended to allow for such a payment. The Parties acknowledge and agree that in the event that Developer selects this option, such selection will not constitute an amendment to this Agreement. Section 7.05 Other Government Permits. City shall cooperate with Developer, to the extent appropriate and as permitted by law, in Developer's efforts to obtain, as may be required, permits and approvals from other governmental or quasi-governmental entities. Section 7.06 Mitigation Measures. Developer and City shall comply with the MMRP as it applies to the Project and shall pay all City costs associated with any such monitoring of the MMRP. Section 7.07 Cooperation in the Event of Legal Challenge. A. City and Developer, at Developer's sole cost and expense, shall cooperate in the event of any court action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, any Existing Project Approvals or any Subsequent Project Approvals and City shall, upon request of Developer, appear in the action and defend its decision, except that City shall not be required to be an advocate for Developer. To the extent that Developer determines to contest or defend such litigation challenges, Developer shall reimburse City, within ten (10) days following City's written demand therefore, which may be made from time to time during the course of such litigation, all costs incurred by City in connection with the litigation challenge, including City's administrative, legal and court costs, provided that City shall either: (a) elect to joint representation by Developer's counsel; or (b) retain an experienced litigation attorney. If Developer defends any such legal challenge, Developer shall indemnify, defend, and hold harmless City and its officials and employees from and against any claims, losses, or liabilities assessed or awarded against City by way of judgment, settlement, or stipulation. Nothing herein shall authorize Developer to settle such legal challenge on terms that would constitute an amendment or modification of this Agreement, any Existing Project Approvals or any Subsequent Project Approvals, unless such amendment or modification is approved by City in accordance with applicable legal requirements, and City reserves its full legislative discretion with respect thereto. 31 OAK #4821-8266-3175 v7 B. In addition, City shall have the right, but not the obligation, to contest or defend such litigation challenges, in the event that Developer elects not to do so. If City elects to contest or'defend such litigation challenges, Developer shall bear all related costs and expenses, including City's attorney fees, up to a maximum amount of One Hundred Thousand Dollars ($100,000), and, in addition, shall indemnify, defend, and hold harmless City and its officials and employees from and against any claims, losses, or liabilities assessed or awarded against City by way of judgment, settlement, or stipulation, without regard to the above dollar amount cap. ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE Section 8.01 Assignment. Sale, transfer or assignment of all or a portion of the Property, or creation of a j oint venture or partnership, shall require the amendment of this Agreement. Section 8.02 Right to Assign. A. Because of the necessity to coordinate development of the entirety of the Property pursuant to the Specific Plan, particularly with respect to the provision of on- and off-site public improvements and public services, certain restrictions on the right of Developer to assign or transfer its interest under this Agreement with respect to the Property, or any portion thereof, are necessary in order to assure the achievement of the goals, objectives and public benefits ofthe Specific Plan and this Agreement. Developer agrees to and accepts the restrictions set forth in this Section 8.02 as reasonable and as a material inducement to City to enter into this Agreement. For purposes of this Section 8.02, a change in the identity of a general partner of R WE, (including the sale or transfer, in the aggregate, of the controlling stock or interest in said general partner) shall be deemed a transfer by Developer subject to the provisions of this Section. Developer shall have the right to sell, transfer, ground lease or assign the Property in whole or in part (provided that no such partial transfer shall violate the provisions of the Subdivision Map Act) to any person, partnership, joint venture, firm, company or corporation (any of the foregoing, an "Assignee'~ subject to the written consent of City; provided that Developer,may also assign its rights under this Agreement without the consent of City to any corporation, limited liability company, partnership or other entity which is controlling of, controlled by, or under common control with RWE and "control," for purposes of this definition, means effective management and control of the other entity, subject only to major events requiring the consent or approval of the other owners of such entity ("Affiliated Party"). City's consent shall not be unreasonably withheld, delayed or conditioned, and City shall consent if the Assignee reasonably demonstrates to City that it is able to perform the obligations of Developer under this Agreement. Assignee shall succeed to the rights, duties and obligations of Developer only with respect to the parcel or parcels of all or a portion of the Property so purchased, transferred, ground leased or assigned, and Developer shall continue to be obligated under this Agreement with respect to all portions of the Property retained by Developer, and with respect to the dedication and installation of all infrastructure improvements to be provided by Developer, pursuant to the Project Approvals, and the PFFP. 32 OAK #4821-8266-3175 v7 B. The sale, transfer, lease or assignment of any right or interest under this Agreement shall be made only together with the sale, transfer, ground lease or assignment of all or a part of the Property. Concurrently with any such sale, transfer, ground lease or assignment, Developer shall (i) notify City in writing of such sale, transfer or ground lease; and (ii) Developer and Assignee shall provide a written assignment and assumption agreement in form reasonably acceptable to the City Attorney pursuant to which Assignee shall assume and succeed to the rights, duties and obligations of Developer with respect to the parcel or parcels of all or a portion of the Property so purchased, transferred, ground leased or assigned. C. Subject to City's written consent as provided in subsection 8.02.A., City, upon request of Developer or Assignee, and following compliance with the notification provisions above, City shall provide Assignee with a certificate of agreement compliance, stating that this Agreement remains valid and in full force and effect and is binding upon City, Developer and the Assignee as of the last Annual Review pursuant to the provisions of Section 9.05, except that if City knows of any non-compliance, City shall not be required to issue a certificate of Agreement compliance. Section 8.03 Release of Transferring Developer. Except with respect to a Permitted transfer and assignment under Section 8.02 to an Affiliated Party, notwithstanding any sale, transfer or assignment of all or a portion of the Property, Developer shall continue to be obligated under this Agreement as to all or the portion of the Property so transferred unless City is satisfied the Assignee is fully able to comply with Developer's obligations under this Agreement (both financially and otherwise) and Developer is given a release in writing. Developer shall provide to City all information reasonably necessary for City to determine the financial and other capabilities of Assignee. Such release shall be provided by City upon Developer's full satisfaction of all of the following conditions: A. City is reasonably satisfied that Assignee is fully able to comply with Developer's obligations under this Agreement (both financially and otherwise). B. A showing by Developer that Developer no longer has a legal or equitable interest in the portion of the Property (which may be all of the Property) for which a release is requested. C. Developer is not then in Default under this Agreement and has received no Notice to Cure. D. Developer has provided City with notice and the fully executed assignment and assumption agreement. E. Assignee provides City with security equivalent to any security previously provided by Developer to secure performance of its obligations hereunder, if any. 33 OAK #4821-8266-3] 75 v7 Notwithstanding any other provision hereof to the contrary, if Developer only transfers a portion of the Property, then Developer shall continue to be obligated under this Agreement with respect to the balance of the Property not so transferred. ARTICLE 9. DEFAULT; REMEDIES; TERMINATION Section 9.01 Breach. Subject to extensions oftime under Section 9.06 or by mutual consent in writing, the failure or delay by either Party to perform any term or provision of this Agreement shall constitute a breach of this Agreement. In the event of alleged breach of any terms or conditions of this Agreement, the Party alleging such breach shall give the other Party notice in writing specifying the nature of the breach and the manner in which said breach or default may be satisfactorily cured, and the Party in breach shall have thirty (30) days following such notice ("Cure Period") to cure such breach, except that in the event of a breach of an obligation to make a payment, the Party in breach shall have ten (10) days to cure the breach. If the breach is ofa type that cannot be cured within thirty (30) days, the breaching Party shall, within a thirty (30) day period following notice to the non-breaching Party, notify the non-breaching Party of the time it will take to cure such breach which shall be a reasonable period under the circumstances ("Extended Cure Period"); commence to cure such breach; and be proceeding diligently to cure such breach. Subject to the provisions of Section 9.06, the Extended Cure Period shalf in no event exceed one hundred twenty (120) days unless otherwise agreed by the parties. During the Cure Period or Extended Cure Period, the Party charged shall not be considered in default for purposes of termination or institution of legal proceedings; but the City's right to refuse to issue a permit or Subsequent Project Approval, under Section 9.03, shall not be limited by this provision. The failure ofany Party to give notice of any breach shall not be deemed to be a waiver of that Party's right to allege any other breach at any other time. Section 9.02 Default. If the breaching Party has not cured such breach within the Cure Period or the Extended Cure Period, if any, such Party shall be in default ("Default"), and the non-breaching Party, at its option, may terminate the Agreement, institute legal proceedings pursuant to this Agreement and shall have such remedies as are set forth in Section 9.04 below. Section 9.03 Withholding of Permits. In the event of a Default by Developer, or following notice of breach by Developer and during the Cure Period or Extended Cure Period, upon a finding by the City that Developer is in serious and substantial breach, City shall have the right to refuse to issue any permits or other approvals to which Developer would otherwise have been entitled pursuant to this Agreement. This provision is in addition to and shall not limit any actions that City may take to enforce the conditions of the Project Approvals. Section 9.04 Remedies. A. In the event of a Default by City or Developer, the non-defaulting Party shall have the right to terminate this Agreement upon giving notice of intent to 34 OAK #4821-8266-3175 v7 terminate pursuant to Government Code Section 65868 and regulations of City implementing such se'ction. Following notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code Section 65867 and City regulations implementing said section. Following consideration of the evidence presented in said review before the City Council, either Party alleging Default by the other Party may give written notice of termination of this Agreement to the other Party. Termination of this Agreement shall be subject to the provisions of Section 9.08 hereof. B. City and Developer agree that in the event of Default by City, the Parties intend that the primary remedy for Developer shall be specific performance of this Agreement. A claim by Developer for actual monetary damages against City may only be considered if specific performance is not granted by the Court. In no event shall Developer be entitled to any consequential punitive or special damages. If City issues an Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by Developer in the future, and if Developer then fails to satisfy such condition, City shall be entitled to specific performance for the purpose of causing Developer to satisfy such condition. C. In addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with the purpose of this Agreement except as limited by subsection 9.04.B. above. Any such legal action shall be brought in the Superior Court for Sonoma County, California. Section 9.05 Periodic Review. A. The annual review date for this Agreement shall be initiated during the month of April of each year of the Term of this Agreement, commencing with April, 2011. No later than sixty (60) calendar days prior to the annual review date, Developer shall submit to the City an accounting of the fees due and paid to the City pursuant to Article 4 of this Agreement as well as an accounting of any assignments or transfers of the Property pursuant to Article 8 of this Agreement. Additionally, Developer shall submitthe annual implementation plan to the City summarizing the status of compliance with the Affordable Housing Plan including the status of construction and sale or rental of the Affordable Units as indicated in Exhibit "D.". Developer shall initiate the annual review required by City Municipal Code, Section 17.21.050(a), by submitting a written request to the Development Services Director. Developer shall submit an application and pay all legally required fees asis set forth in City Municipal Code Section 17.21.050(a), and provide evidence as determined necessary by the Director to demonstrate good faith compliance with the provisions of this Agreement. However, failure to initiate the annual review within thirty (30) days of receipt of written notice to do so from City shall not constitute a Default by Developer under this Agreement, unless City has provided actual notice and opportunity to cure and Developer has failed to so cure. 35 OAK #482]-8266-3]75 v7 B. The annual review required by Government Code section 65865.1 and the City Municipal Code shall be conducted as provided herein: (1) The City Manager shall review Developer's submission to ascertain whether Developer has complied in good faith with the terms of this Agreement. Ifthe City Manager finds good faith compliance by Developer with the terms of this Agreement, the City Manager shall so notify Developer and the City Council in writing and the review for that period sl).all be concluded. If the City Manager finds good faith compliance with this Agreement, the notification to the City Council shall not require a hearing of any kind or an appearance from Developer. If the City Manager is not satisfied that the Developer is performing in accordance with the material terms and conditions of this Agreement, the City Manager shall refer the matter to the City Council for a determination as to compliance with this Agreement and notify Developer in writing at least ten (10) days in advance of the time at which the matter will be considered by the City Council (2) In the event that the City Manager is not satisfied that Developer is performing in accordance with the material terms and conditions of this Agreement, the City Council.shall conduct a hearing at which Developer must submit evidence that it has complied in good fa:ith with the terms and conditions of this Agreement. The findings of the City Council on whether Developer has complied with this Agreement for the period under review shall be based upon substantial evidence in the record. If the City Council determines that, based upon substantial evidence, Developer has complied in good faith with the terms and conditions of this Agreement, the review for that period shall be concluded. If, however, the City Council determines, based upon substantial . evidence in the record, that there are significant questions as to whether Developer has complied in good faith with the terms and conditions of this Agreement, the City Council may continue the hearing and shall notify Developer of the City's intent to meet and confer with Developer within thirty (30) days of such determination, prior to taking further action. Following the thirty (30) day time period, the City Council shall resume the hearing in order to further consider the matter and to make a determination, regarding Developer's good faith ' compliance with the terms and conditions of the' Agreement and to take those actions it deems appropriate, including but not limited to, termination of this Agreement, in accordance with California Government Code section 65865.1 and the City Municipal Code. C. Failure of City to conduct an annual review shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual review. D. If, after an annual review, City finds Developer has complied in good faith with this Agreement, City shall promptly following Developer's request issue 36 OAK #4821-8266-3]75 v7 to Developer a certificate of compliance certifying that Developer has so complied through the period of the applicable annual review. The Certificate of Compliance must. be in recordable form and must contain such information as may be necessary to impart constructive notice of City's finding. Developer may record the Certificate of Compliance in the Official Records of the County of Sonoma. Section 9.06 Enforced Delay; Extension of Time of Performance. Subject to the limitations set forth below, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of the other Party; or acts or failures to act of any other public or governmental agency or entity (other than the acts or failures to act of City which shall not excuse performance by City). An extension oftime for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause but in any event shall not exceed a cumulative total of two (2) years. Developer acknowledges that adverse changes in economic conditions, either of Developer specifically or the economy generally, changes in market conditions or demand, and/or inability to obtain financing or other lack of funding to complete the work of on-site and off-site improvements shall not constitute grounds of enforced delay pursuant to this Section 9.06. Developer expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Effective Date. Section 9.07 Resolution of Disputes. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at City's request, meet with City. The Parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 9.07 shall in any way be interpreted as requiring that Developer and City and/or City's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings. Section 9.08 Surviving Provisions. In the event this Agreement is terminated, neither party shall have any further rights or obligations hereunder, except for those obligations of Developer set forth in Sections 5.02 (Prevailing Wage), 7.07 (Cooperation in the Event of Legal Challenge), and 9.09 (Indemnity and Hold Harmless). Section 9.09 Indemnity and Hold Harmless. Developer shall indemnify and hold City and its elected and appointed officers, agents, employees, and representatives harmless from and against any and all claims, costs, liabilities and damages (including attorneys fees and costs) for any bodily injury, death, or property damage resulting directly or indirectly from the approval or implementation of this Agreement, the , development and construction of the Project by or on behalf of Developer, or from any operations performed under this Agreement, whether such operations were performed by 37 OAK #482]-8266-3]75 v7 Developer or any of Developer's contractors, subcontractors, agents or employees, except to the extent such claims, costs and liabilities arise from the active negligence or willful misconduct of City, its elected and appointed officers, agents, employees, representatives, contactors or subcontractors. ARTICLE 10. MISCELLANEOUS PROVISIONS Section 10.01 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as iffully set forth herein. Section 10.02 Findings. City hereby finds and determines that execution of this Agreement furthers public health, safety and general welfare and that the provisions of this Agreement are consistent with the General Plan. . Section 10.03 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, the party adversely affected may (in its sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party. Section 10.04 Construction. Each reference in this Agreement to this Agreement' or any of the Existing Project Approvals or Subsequent Ministerial or Discretionary Approvals shall be deemed to refer to the Agreement, Project Approval or Subsequent Ministerial or Discretionary Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Unless the context clearly requires otherwise, (i) the plural and singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive; (v) "include," "includes" and "including" are not limiting and shall be construed as if followed by the words "without limitation," and (vi) "days" means calendar days unless specifically provided otherwise. Section 10.05 Covenants Running with the Land. All ofthe provisions contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the 38 OAK #482]-8266-3]75 v7 Property or Project, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including California Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Property and is binding upon the Developer of all or a portion of the Property and each successive Developer during its development of such Property or portion thereof. Section 10.06 Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party's facsimile machine. Notices transmitted by facsimile after5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to City: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928 Attention: City Manager Tel: (707) 588-2223 With copies to: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928 Attention: Development Services Director Tel: (707) 588-2236 39 OAK #482].8266-3]75 v7 and City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928 Attention: City Attorney Tel: (707) 588-2214 - If to Developer: Redwood Equities, LLC PO Box 14955 Santa Rosa, CA 95402 With a copy to: Tina Wallis Clement, Fitzpatrick & Kenworthy 3333 Mendocino Avenue Santa Rosa, CA 95404 Section 10.07 Entire Agreement, Counterparts and Exhibits. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. This Agreement, together with the attached Exhibits, constitutes the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. The Exhibits attached to this Agreement are incorporated herein for all purposes: Section 10.08 Recordation Of Development Agreement. Pursuant to California Government Code S 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of Sonoma. Section 10.09 No Joint Venture or Partnership. It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Existing Project Approvals or Subsequent Project Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Existing Project Approvals, Subsequent Project Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. Section 10.1 0 Waivers. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. 40 OAK #482]-8266-3175 v7 Section 10.11 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law prov1slOns. Section 10.12 Estoppel Certificate. Within thirty (30) days of a written request, any Party shall provide written certification, that: (a) this Agreement is in full force and effect and a binding obligation of the Parties; (b) this Agreement has not been amended or modified, or if so amended, identifying the amendments; and (c) to the knowledge of the certifying Party, the requesting Party is not in default in the performance of its obligations under this Agreement. Section 10.13 No Third-Party Beneficiaries. The Parties expressly agree and acknowledge that there are no third-party beneficiaries to this Agreement, nor do the Parties intend for there to be any third-party beneficiaries to this Agreement. Section 10.14 Time of Essence. Time is of the essence of each and every provision of this Agreement. Section 10.15 Venue. Any dispute arising out of or related to this Agreement shall be brought and tried in the Sonoma County Superior Court. Section 10.16 Subsequent Applications. Nothing in this Agreement shall be construed as preventing Developer from submitting a new or modified application for any . land as entitlements or approvals or the Property. Any subsequent approvals or entitlements shall supersede this Agreement. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written. [SIGNATURES ON FOLLOWING PAGE] 41 OAK #482]-8266-3]75 v7 Approved as to Form: By: City Attorney Attest: By: City Clerk OAK #482]-8266-3175 v7 CITY: City of Rohnert Park, a municipal corporation By: Mayor Date Signed: DEVELOPER: Redwood Equities, LLC, a limited liability company By: Title: 42 EXHIBIT A Site Map 1341577v lB 80078/0015 Exhibit A OAK #4821-8266-3175 v7 No. l1 L2 'L3 L4 L5 L6 Length 350.41' 125.73' ' 1.00' 116.07' ~ ExHIBIT 'A' lHlS DIAGRAM IS FOR GRAPHIC PURPOSES ONLY. f<<( ERRORS OR OMISSIONS SHAlL NOT EFFECT lHE LEGAL DESCRIPTION. No. C1 C2 C3 C4 Curve Table Radius Delta 05'04'58" 01 ~46' 43" 00'00'51" 01"38' 32" 3950.00' 405().OO' 4050.00' 4050.00' ;: . p; LAND OF 108 Hot.DINGS LTD DN 1981-033808 APN 047-111-051 (VACANT) N 89'30'35" E 1.00' VAU...EY . HOUSE DRIVE ~. .. . N 89'30'35" W. ' 2584.21' aTY OF ROHNERT PARK ON 1994-09021.1 /.AND.OF f08 HOUJINGS LTO SOUTH EAST ROHNERT PARK BOUNDARY Bearing Table Bearin'g Distance N 00'01'31" W N 00'01'31" W N 89-59'1'1" W N 89'59'11" W S 00'00'49" W S 05"05'48" W 116.02' 1.00' 30.00' 21.29' 22.46' 64.47' < '" 3 '" .., <L SITE MAP NO SCALE I ALAN Iw ~ lit) . m8 ~ AREA OF EXCEPTION ~ I DRIVE SOUTH EAST ROHNERT PARK BOUNDARY w LANDS OF RA 170 7279 PETALUMA HILL ROAD DN.2009-049006 APN 047-111-030 SOUTH EAST ROHNERT PARK BOUNDARY 2589.34' COUNTY OF $Q'&WA 2875 o.R. 552 ,/ o I 1000' I 500' " CINQUINI &. P ASSARINO, INC. LAND SlJRVEYING & BOUNDARY 1360 No. Dutton Ave. A. TOPOGRAPHIC Santa Rosa, Co. 95401 & CONSTRUClION Phone: (707) 542-6268 & SUBDIVISIONS Fax: (707) 542-2106 WWW.C1NQUINIPASSARINO.COM DRAWN BY: AGe CHECKED BY: JMD SCALE: 1" = 500' DAlE:. OCT 2010 JOB I: 624g-10 SHEET: 1 OF 2 JOB NAME: SOUTH EAST ROHNERTPARK DESCRIPTION: EXHIBIT 'A' EXHIBIT B Legal Description of Property 1341577v1B 80078/0015 Exhibit B OAK #4821-8266-3175 v7 Exhibit "B" DESCRIPTION OF SOUTH EAST ROHNERT PARK Lying within the unincorporated area of Sonoma County, State of California, being the lands of James Ratto and Deana Ratto as described by Deed filed for record under Document Number 2009-049006, Sonoma County Records, being a portion of the Cotati Rancho, and being a portion of the South half of the Northeast Quarter of Section 31, in Township 6 North of Range 7 West, M.D.M., as shown upon a Map of said Rancho made by William Denton, also being the same land conveyed to Clark by Comstock and wife, by Deed recorded in Book 14 of Deeds, Pages 346 and 347, and excepting therefrom that portion conveyed to the County of Sonoma by Deed recorded November 2, 1978 in Book 3477 of Official Records, Page 704, Sonoma County Records, said lands also de;;cribed as follows: COMMENCING at the centerline intersection of Bodway Parkway and Camino Colegio, said intersection marked with a found 2-inch brass disk stamped "RCE 20190" in a monument well, from which a found 2-inch brass disk stamped "RCE 20190" in a monumentwell.bears South,00040'51'' West 1073.18 feet, thence. South 33050'37" East, 69.54 feet to the northwest comer of s~d lands also being the southwest corner ofeanon Manor as shown on that Record of Survey filed for record in Book 74 of Maps at Page 46, Sonoma County Records also being a point on the east line of Bodway Parkway and the POINT OF BEGINNING; thence along the south line of said Map of Canon Manor, South 89055'07" East 2670.58 feet to a found 3-inchbrass disk in a monument well .. marking the centerline of Petaluma Hill Road; thence along said centerline South . 00004'58" East 764.63 feet to the north line of the 'land conveyed to the County of Sonoma recorded in Book 3477 of Official Records, Page 704, Sonoma County Records; thence along the north and, west lines of said lands of. the County of Sonoma North 89059'11" West51.29 feet; thence continuing along said lines South 00000'49" West 22.46 feet; thence continuing along a curve to the right with a radius of 3950.00 feet through.a central angle of 05004' 58" for a length of 350.41 feet; thence continuing along said west line South 05005'48" West 64.47 feet, thence continuing alonga curve to the left with a radius of 4050.00 feet through a central angle of 01046'43" for a length of 125.73 feet to the south line of said lands of Ratto, thence along the south line of said lands North 89030'35" West 2589.34 feet to the southwest corner of said lands being a point on the east line of Bodway Parkway; thence along said east line North 00001 '31" West 1308.25 feetto the POINT OF BEGINNING. EXCEPTING therefrom all that portion lying easterly of a line 30.00 feet west of and parallel with said centerline of Petaluma Hill Road. TOGETHER WITH the northerly 1.00 foot of the lands of 108 Holdings as described by deed under Document Number 1981-033808, said lands also described'as Parcel "A" as shown upon that certain map entitled, "Parcel Map No. 3063, being a portion of Rancho Cotati, Sonoma County, California", filed August 18, 1972in Book 177 of Maps at Page 20, Sonoma County Records, the north line of which is the south line of said lands of Ratto, the south line of which is the northerly right of way of Valley House Drive as 1360 North Dutton Avenue, Suite 150, Santa Rosa, CA 95401 Tel: (707) 542-6268 Fax: (707) 542-2106 www,cinquinipassarino.com CPI No.: 6249-10 Page 1 of 2 described under Document Number 1994-0090213, Sonoma County Records, the west line of which is the easterly right of way of Bodway Parkway as described under Document Number 1994-0080331; Sonoma County Records, the easterly line of which is the westerly line of the land conveyed to the County of Sonoma recorded in Book 2875 of Official Records, Page 552, Sonoma County Records. Containing 79.4 acreS more or less Being a portion of APN 047-111-030 & 047-111-051 Prepared by Cinquini & Passarino, Inc. ~0~-- An - ny-d, c' quin' . ~L_S, 8614 /' ;<~;20/o 1360 North Dutton A venue, Suite ISO, Santa Rosa, CA 9540 I Tel: (707) 542-6268 ' Fax: (707) 542-2106 www.cinquinipassarino.com CPI No.: 6249-10 Page 2 of 2 EXHIBIT C Resolution Requesting Annexation Exhibit C 1341577vlB 80078/0015 OAK #4821-8266-3175 v7 RESOLUTION NO. 2010-141 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK ADOPTING A RESOLUTION OF APPLICATION TO THE SONOMA LOCAL AGENCY FORMATION COMMISSION FOR REORGANIZATION OF PROPERTY LOCATED NORTHEAST OF BODWAY PARKWAY AND VALLEY HOUSE DRIVE (APN'S 047-111-030 and047-111-051) AND VALLEY HOUSE DRIVE WHEREAS, the City of Rohnert Park adopted its General Plan in 2000; WHEREAS, the citizens of the City of Rohnert Park approved an Urban Growth Boundary (UGB) in 2000 which defines the limits of future development; WHEREAS, the City of RohnertPark General Plan includes properties outside of the current City limits and within the City's Sphere ofInfluence (SOl) and UGB that are intended to be annexed to the City upon preparation of Specific Plans for these properties; WHEREAS, the approximately 80 acre area located northeast of. Bodway Parkway and Valley House Drive is identified in the General Plan as the Southeast Specific Plan Area; WHEREAS, the applicants for the Southeast Area project have prepared the required Specific Plan for the Southeast Area and the City has prepared a Final Environmental Impact Report for the project; W,HEREAS, the Southeast Specific Plan property is intended to be annexed to the City and is. proposed to be prezoned "Specific Plan District (SP)" in conformance with the City's General Plan; WHEREAS, California Government. Code Section 56744 prohibits any annexation that would result in, the creation of an unincorporated island or islands (unincorporated territory substantially surrounded by a city); WHEREAS, limiting the annexation subject territory to the Southeast Specific Plan Area and Valley House Drive would create an unincorporated island (APNs 047- 111-051) comprised ofa one-foot strip approximately 2,600 feet in length along the north edge of Valley House Drive; WHEREAS, APN 047-111-051 intended to be annexed to the City in conjunction with the annexation of the Southeast Specific Plan Area and is proposed to be incorporated into Valley House Drive right-of-way; WHEREAS, all unincorporated right-of-way on Valley House Drive that lies adjacent to the Southeast Specific Plan Area is intended to be annexed to the City; WHEREAS, an.nexation of the territory described herein and depicted generally in the attached. Exhibit. A will necessitate concurrent detachment of the same from the Rancho Adobe Fire Protection District and County Service Area 41; WHEREAS, a reorganization is defined by California Government Code Section 56073 as a single proposal involving two or more changes of organization, such as annexation. and detachment; WHEREAS, on November 16, 2010, the Planning Commission held a public hearing at which time the Planning Commission reviewed the project proposal and recommended approval by the .city Council; WHEREAS, pursuant to Califo.rnia State Law and the Rohnert Park Municipal Code, public hearing notices were mailed to all property owners within an area exceeding a 300 foot radius of the subject property, public hearing notice signs were ,posted on the property, and a public hearing was published for a minimum of 10 days prior to the first public hearing in the Community Voice; WHEREAS, on December 7, 2010, the City Council held a public hearing at which time interested persons had an opportunity to provide public testimony..either in support of or opposition to the proposal; WHEREAS, the City Council has certified the Final Environmental Impact Report prepared for the project, which includes arinexation within its project description, and has otherwise carried out all requirements of the California Environmental Quality Act. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rohnert Park makes the following findings, determinations and recommendations as follows: ' Section 1. That the above recitations are true and correct. Section 2. Environmental Clearance. . A resolution of application to the Sonoma Local Agency Formation Commission for reorganization of the territory depicted in Exhibit A is in accordance with applicable provisions of the California Environmental Quality Act, pursuant to the Final Environmental Impact Report for the Southeast Specific Plan. The City Council has certified approval of the Final EIR, which includes annexation within the project description, as well as the adoption of CEQA Findings, Statement of Overriding Considerations and the Mitigation Monitoring Program, as described in Resolution No. 2010-134; approved on December 7, 2010. NOW THEREFORE BE IT RESOLVED, that the City Council does hereby adopt a Resolution of Application to the Sonoma Local Agency Formation Commission fo~ Reorganization of Territory located northeast of the Bodway Parkway and Valley House Drive (APN 047-111-030 and 047-111-051) and including Valley House Drive. BE IT FURTHER RESOLVED that in accordance with the policies of the Sonoma Local Agency Formation Conunission, the reconunended title of this proposal is "Rohnert Park Reorganization 1 0-1 involving Annexation to the City of Rohnert Park and detachment from the Rancho Adobe Fire Protection District. and County Service Area No. 41 (Multi-Services)" and the reconunended short from designation is "Southeast Area Reorganization:" NOW, THEREFORE, BE 'IT FURTHER RESOLVED, THAT the City Council does hereby adopt the Findings stated hereinabove and approve Application No. PL2003-031 and adopt a Resolution of Application to the Sonoma Local Agency Formation Commission for Reorganization of Territory located northeast of the Bodway Parkway and Valley House Drive (APN 047-111-030 and047~111-051) and including Valley House Drive. DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park on this 7th day of December, 2010. CITY OF ROHNERT PARK .~~~ Mayor ATTEST: BELFORTE: AYE BREEZE: AYE CALLINAN: AYE MACKENZIE: AYE STAFFORD: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) EXHIBIT A ANNEXATION EXHIBIT ~..L .. . ...... ... r'" . I . . 1 l5ll J ....._ ~ ....~.. -'~ (- ~!. : CANON !il ... ~ ~ ~ ~ f.; ..... EX1S11N(; (:lTY lidtJIitJARy 1tC~7iON 1lK!.. I 1~~J'.L. SaR. C$T:1llIU51IUJ 8'1' 0It0INANCt' Na I.JI - ,----. '-. " .,. '_", .'.r-..... _...._. -- ..... ....................-.,; "-" 3d LANDS 01' RATTO 7271I'CTALfHrIA HIU. ROAD DN~ APII O47-11I""O.JO LAND OF 108 H()U)JNGs L 7D Of( 1~....0JJ/J08 APN 047..111"051 (VACANT) ~ i . DFWE! 2l5a4' . CITY OF ROHNeRT PARK ON 1S4-t>>o21". COUNTY OF' .mvaIA .J477 M 7tH I ~ <:l 5 LAND or 108 HOLiJING$LTO 7SOIJ n7AL~ Hi(J.. iiDAD D!i f.,~ Aiw 047--","'<<10 FiOHNSFrr PARK REOFIGANJZATION 2010-01 <SOlI11-IeA8T SPECIPIC PLAN AREA) CIVL t:::>E8IQN CONSULTANTS, INC. 2aQO Flange Avenu.. SUIte 204 s.m. A~ CA G5403 ..........".. .,4820 ,'!:i ~ y I::j 1. - 5OO':h OCTOBER 2010 Ii EXHIBIT D Affordable Housing Plan Exhibit D 1341577vlB 80078/0015 OAK #4821-8266-3175 v7 EXHmIT D AFFORDABLE HOUSING PLAN I. INTRODUCTION The Southeast Specific Plan and accompanying Development Agreement meet the City of Rohnert Park's inclusionary housing requirement. Under the proposed Development Agreement and Specific Plan, the project will provide Low and Very Low income housing (as such terms are defined in Section 17.07.020(N)(2) of the City's Municipal Code) as rental housing, and will provide affordable owner-occupied housing. As depicted in the Specific Plan and Final Development Plan, a total of72 Affordable Units are included in the Project as follows: 36 apartment units in one apartment complex (Affordable Apartment Complex); 28 Duplex Units; and 8 Alley Loaded Units. Unless otherwise defined herein, capitalized terms contained in this Affordable Housing Plan shall have the meaning given to such terms in the Development Agreement. II. PAYMENT OF IN-LIEU FEE As is set forth in the Development Agreement, if the City adopts an applicable in-lieu housing fee, or otherwise modifies the affordable housing provisions of its Municipal Code, the Developer may elect to pay the in-lieu fee or comply with the revised code requirements. If Developer elects to pay the in-lieu fee for all 72 of the required Affordable Units, then the Developer shall prepare a document rescinding the Affordable.Housing Plan in a form approved by the City Attorney which the City will approve and record. III. AFFORDABLE APARTMENT COMPLEX A. Obligation to Construct The Developer shall either (1) construct the Affordable Apartment Complex in , accordance with plans and specifications approved by the City, or (2) donate land within the Project, to one or more non-profit housing developers in place of actual construction. Prior to donating the land to the non-profit, the land must be appropriately zoned, buildable, free of toxic substances and contaminated soils. Prior to donating this land to the non-profit,.the Developer shall ensure that the lots are fully improved with infrastructure, adjacent utilities, completed grading, all applicable fees have b'een paid, and compliance with all applicable conditions of approval and mitigation measures. The non-profit to whom the Developer donates the land shall have a minimum of five years' experience in. development, ownership, operation, and management of similar sized affordable rental housing projects, and shall demonstrate that it has the capacity to construct and operate the afforda,ble housing apartment complex. RIV #4812-8328-5512 vI The Affordable Apartment Complex will be constructed on parcel "D" located at the comer of Bodway Parkway and Valley House Drive. The Parties acknowledge that parcel "D" is expected to be adequate to accommodate the Affordable Housing Complex, subject to formal site plan review by the City and. confirmation by the City that the Affordable Housing Complex complies with the Specific Plan, the Project Approvals and Applicable Law. Irrespective of who constructs the Afford~ble Apartment Complex, construction shall be completed no later than the market-rate units that are part ofthe Project. In recognition of the fact that Developer may phase construction of the market-rate or commercial units, for purposes ofthis Affordable Housing Plan, the phrase "completed no later than market-rate units" shall mean no later than the City''S issuance ofa building permit for the 225th market-rate residential unit. The Developer shall provide in its transfer documents donating land within the Project to a non-profit housing developer for a reversion in fee to Developer of the land upon which the Affordable Apartment Complex is to be constructed if the Affordable Apartment Complex has not been constructed as required by this Affordable Housing Plan. If the non-profit housing developer has not completed construction of the Affordable Apartment Complex as set forth in this Affordable Housing Plan, then the Developer will be required to complete construction of the Affordable Apartment Complex itself. Developer shall do so at Developer's sole expense, and Developer shall complete construction of the Affordable Apartment Complex no later than issuance of the building permit for the 290th market-rate unit. City shall not be obligated to issue any additional building permits beyond the 290th building permit until the Affordable Apartment Complex is satisfactorily completed, as evidenced by a final certificate of occupancy, according to the terms of the Agreement and this Affordable Housing Plan. B. Affordabilitv The Affordable Apartment Complex shall consist of 36 Affordable Units. Fifty percent (50%) ofthese units, or 18 apartments, shall be rented to Very Low Income Households at an Affordable Rent. The remaining fifty percent (50%), or 18 ofthe apartments, shall be rented to Low Income Households at an Affordable Rent as defined by the Rohnert Park Municipal Code. C. Affordable HousingAgreement Affordable rental properties shall be restricted for 55 years and owner-occupied affordable housing units shall be restricted for 45 years as is required by the Rohnert Park Municipal Code. In order to ensure that these affordability restrictions remain in place, the Developer or the non-profit to whom the Developer donates land, shall enter into an Affordable Housing Agreement with the City in a form and content acceptable to the City Attorney. The Affordable Housing Agreement shall be recorded against the Affordable Apartment Complex parcel or project site prior to the issuance of the building permit for the 100th market rate residential unit. The Affordable Housing Agreement shall include at least the following terms: .1. The requirement to construct the Affordable Apartment Complex in accordance with this Affordable Housing Plan. RIV #4812-8328-5512 vI 2. Provisions restricting the rental of the Affordable Apartments to low and , very Low Income Households at an Affordable Rent as defined by the RohnertPark Municipal Code for 55 years. 3. Non-discrimination covenants. 4. Annual certification requirements for the lease of the rental units. 5. The submission of certificates of continuing program compliance to the City at least once a year. 6. Restrictions on the ability to transfer the Affordable Apartment Complex. 7. Maintenance and management requests, including identifying the City's remedies following notice and opportunity to cure. 8. A marketing plan for the Affordable Apartments, including any preference programs. D. Qualitv Standards The Affordable Apartment Complex shall comply with the construction and aesthetic standards set forth in RohnertPark Municipal Code Section 17.07.020, Footnote (N), subsection 9. Specifically, the Affordable Units shall be comparable in number of bedrooms, exterior . appearance, and overall quality of construction to the market-rate units in the same project. With prior approval from the City Manager, the Affordable Units may have different square footage or interior features from the market-rate units in the Project so long as the interior features are still of good quality and are consistent with contemporary standards for housing. In its approval of the Development Agreement for this Project, the City specifically approves and authorizes the clustering of the 36 affordable apartment units in the Project. E. Marketinf:!/Implementation Developer or its designated affordable housing developer shall prepare and implement a marketing and implementation plan for the rental of the Affordable Apartments. The plan must be in a form and content reasonably acceptable to the City and include, among other things, the following: ' 1. A plan to market the Affordable Apartments to eligible households. 2. Procedures for the rental of the Affordable Apartments, including the slotting of applications and creation of a waiting list, eligibility determination, income certification, and annual re-certifications. RIV #4812-8328-5512 vI IV. DUPLEX UNITS AND ALLEY LOADED UNITS A. Oblh:!ation to Construct Developer shall construct 28 affordable Duplex Units and 8 affordable Alley Loaded Units on the sites depicted in and in accordance with the Specific Plan and Final Development Plan as well as all plans and specifications as approved by the City. Construction shall be completed, as evidenced by a final certificate of occupancy, concurrently with the related market-rate units according to the Project phasing plan and phasing map as reviewed and approved"by the City and as included in the Final Development Plan. B. Affofdabilitv The 28 affordable Duplex Units and 8 affordable Alley Loaded Units shall be used either as rental housing or owner-occupied housing, subject to the following requirements: 1. If operated as rental housing, fifty percent (50%) of the Affordable Units shall be rented to Very-Low income households at an Affordable Rent. The remaining fifty (50%) ofthe Affordable Units shall be rented to Low- income households at an Affordable Rent. 2. If sold as owner-occupied housing, fifty (50%) of the Affordable Units shall be sold to Low Income households at an Affordable Sales Price. The remaining fifty percent (50%) of the Affordable Units shall be sold to Moderate income households at an Affordable Sales Price. C. Affordable Housing Agreement Concurrent with recordation of the final map for each tract in which affordable housing sites have been designated, Developer shall record an Affordable Housing Agreement containing covenants against any parcel on which Affordable Units are proposed to be constructed. The covenants containing the affordability restrictions for the Affordable Units shall remain in place for a minimum of fifty-five (55) years (for rental housing) or forty-five (45) years (for owner- occupied housing). Among other things, the Affordable Housing Agreement shall include the following terms: If the Affordable Housing Unit(s) is/are operated 'as rental housing: , 1. The requirement to construct the Affordable Units as provided herein; 2. Provisions restricting the rental of Affordable Units to low- and very low- income households at an affordable rent for a period of fifty-five (55) years; 3. Non-discrimination covenants; RIV #4812-8328-5512 vI 4. Provisions requiring income certification before the lease of any Affordable Units and recertification every year thereafter; 5. Provisions requiring the submittal of certificates of continuing program compliance to the City on at least an annual basis; 6. Restrictions on the ability to transfer the Affordable Units; 7. Maintenance and management requirements, including City remedies following notice and opportunity to cure; 8. Provisions regarding the marketing of the Affordable Units. If the Affordable Housing Unit(s) is/are sold as owner-occupied housing: 1. The requirement to construct the Affordable Housing Unites) as provided herein; 2. Provisions restricting the sale of the Affordable Units to Low and Moderate-income households at an Affordable Sales Price for a period of forty-five (45) years; 3. Non-discrimination covenants; 4. Provisions requiring income certification before the sale of any Affordable Units; 5. Restrictions on the ability to transfer the Affordable Units; 6. The phasing plan already submitted to the City that indicates the location and unit size of each Affordable Unit, and the timing of the construction of the Affordable Units in relation to the market rate units; 7. Provisions requiring homebuyers to execute and record, as appropriate, resale and refinance restrictions, disclosure statements and a performance deed of trust; and 8. A form of Resale and Refinance Restriction Agreement that includes, among other things, provisions requiring that the Affordable Unit be sold to a Low or Moderate-income household at an Affordable Sales Price for a period of forty- fi,ve (45) years, refinance limitations, provisions prohibiting the rental of the Affordable Unit, and an option to purchase at an Affordable Sales Price in favor of City the event of a default by the owner. D. Qualitv Standards The Affordable Units shall comply with the construction and aesthetic standards set forth RIV #4812-8328-5512 vi in Rohnert Park Municipal Code Section 17.07.020, Footnote (N), subsection 9. Specifically, the Affordable Units shall be comparable in number of bedrooms, exterior appearance, and overall quality of construction to the market-rate units in the same Project. With prior approval from the City Manager, the Affordable Units may have different square footage or interior features from the market-rate units in the Project so long as the interior features are still of good quality and are consistent with contemporary starldards for housing. The Affordable Units shall be dispersed throughout their respective phase. E. Marketing/Implementation Developer shall prepare arld implement a marketing and implementation plan for the Affordable Units. The plan must be in a form and content reasonably acceptable to the City and include, among other things, the following: 1. A plarl to market the Affordable Units to, eligible households. 2. . Procedures for the rental or sale of the Affordable Units, inciuding the slotting of applications and creation of a waiting list, eligibility determination, income certification, and annual re-certifications. V. COMPLIANCE MONTORING Commencing one year after the Effective Date and every year through the Term, the Developer shall submit an annual implementation plan to the City summarizing the status of compliarlce with the Affordable Housing Plan, including status of construction and sale or rental ' of the Affordable Units. Atthe time of submission ofthe information required. by this sectIon, Developer shall submit the required Processing Fees to cover City's costs to review and monitor Developer's compliance with the Affordable Housing Plan. VI. DEVELOPER'S OBLIGATION The obligations set forth in the Affordable Housing Plan are the obligation of Developer, who shall be responsible for fulfilling them at Developer's sole cost arld expense. Neither the City nor the Rohnert Park Community Development Agency will have any obligation to assist in the development of any of the Affordable Units or Second Units. The Developer shall-provide any and all subsidies necessary to construct the Affordable Units and to comply with all provisions of the Affordable Housing Plan. VII. PRIORITY The Affordable Housing Agreement described above shall be superior to any mortgage, deed of trust, lien, or other encumbrances (other than the lien for current taxes or assessments not yet due) recorded against the Property, and shall be enforceable against any party who has acquired its title by foreclosure, trustee's sale, voluntary conveyance, or otherwise. If so requested by the City, the Developer or its successor shall execute and agree to the recording of a subordination agreement evidencing the provisions of this Section VIII. RIV #4812-8328-5512 vI VIII. ADJUSTMENT The Developer may seek a reduction, adjustment, or waiver of these Affordable Housing requirements as is set forth in Rohnert Park Municipal Code Section 17.07.020, footnote (N), subsection 15. RIV #4812-8328-5512 vI EXHIBIT E Water Storage Facility Exhibit E 1341577vlB 80078/0015 OAK #4821-8266-3175 v7 b t"l II Il~ C3 (fl ~ ! ." :: ~ . . .'. : , .' Z <: ..' 3:~' (flC ,,/ ii ... ---.. - -'N - ... ~ - -. ~ _._- -... ___ .- 31VMS %t .,.' f7 ~ . . en I ~ I I i \ \ .... \ "- ... " ~ ~ '- 3:~ ~'}t>:ft. ... VlC ,S ~i'*- '. .. .....: ..:. .. ~..: :-.. ..... .. .. .,. '". fiSl r A V M~n::lV d ~ Z ~ -1<.:1: ce-C) (:IC'i: oCo';,j- glC)t"l cti t') ..,. ~~ I [I ~ ~ ~R II: 0 ~ ~i ~.. III < o. ~g~ ~Ui ~ ~a:O::~ ..I gS./!" 50 ..I ~cob ~ 3: . co co t') 'T t"l o ~ I!!~ mo.. Ii: ~~ ~i ~ti. il .. ''"..:. .. . . "":..." .' :.. .... ".'" ..... i ~ .. ~.. .." .. ..: .";..": ,. ':... .. 01 o o. t"l >- D:': < :J ~ ~ --z:::- 0:: W ::E' ~ ~ (fl Zo << \. g:Q. '. , . :3: '. .(fl . .'.'" . .:io' .. sO: ~Mao iSclNcI ~:9;:!' EXHIBIT F Water Storage Facility Specifications Exhibit F 1341577vlB 80078/0015 OAK #4821-8266-3175 v7 The Tank shall be a minimum siZe of 0.438 million gallons and provide stored potable water to meet the following requirements: . , Tank equalization (25% of Maximum Day demand), Emergency Reserve (Average Day demand) ,and Fire reserve (1,500 gpm for 2 hours - commercial). The Tank shall be a welded steel tank conforming to A WW A D 1 00-05 WELDED CARBON STEEL TANKS FOR WATER STORAGE. All appurtenances shall meet City Standards and A WW A standards. All designs and improvements shall be to the satisfaction of the City Engineer and the Department of Health. ' A minimum of 12 foot clear shall be provided around the tank at all points. This area shall be paved. , The Tank shall be entirely above ground. Interior coating systems shall be three coat polyamide epoxy coating system that is certified in accordance with NSF/ANSI6l for contact with potable water in water storage tanks of the size being coated. The 'coating system shall be suitable for application in three even coats of3-5 mils dry film thickness (DFT), for a total minimum of9 mils DFT, or better coating system as approved by the City Engineer. A cathodic protection system shall beiilcorporated into the tank. Pressurizing pumps shall have sufficient back ~up such that ~e largest pump can be out of service and all flow and pressure requirements can be met. Pumps shall be high efficiency. Motors shall be high efficiencyvanable speed motors. All above ground piping shall be ductile iron. The pump for the tank shall have emergency back-up power, a generator. All mechanical equipment shall be enclosed ,in a building. ' The site shall be fenced to a height of 8 feet. Fencing shall be commercial galvanized vinyl coated chain link or o~er fencing as approved by the City. . EXHIBIT G Storm Water Detention Basin Exhibit G 1341577vlB 80078/0015 OAK #4821-8266-3175 v7 , " I I , , I I / , . . . --:-=1~.. I. I ! 1 l 0 0 o 0 I I r J I I ~ / I I ( I I r . -2 .[1.. . I . TI ~~ 1i o ~ i; i I (;~----ji!g I'! ~&ti >- !~ ~-a: ~ 11<( ! e8is ~ I O~C1J~ 1 , IQ 0 '0 /0 I~ ~ ~ I : l~; .. ... i 0 !~,~ I L . I 1 J 'd .~~ to in, ~: / ~ (jj <C ~ ...J 0: W <( o Q. 0: <( Q Q. -' m :J n. o 10 " \ I ~ I ~ I co I') 'I ('1.1 o o o o 0 o , J.(k! Wet O&:O!i'.7:t Ot~ 9t'- 01 1341577vlB 80078/0015 OAK #4821-8266-3175 v7 EXHIBIT H Storm Water Detention Basin Specifications Exhibit H Southeast Specific Plan Detention Basin Requirements The detentian basin- shall be designed to meet the fallawing criteria: The storm ~ater detention pond shall be designed in accordance with the WEF Manual of Practice FD-20, per City Standards and be appraved by the City Engineer, the Regianal Water Quality Control Board, Sonama County Water Agency and Marin/Sonoma Mosquito & Vector Control District. The detention basmarea shall be a minimum af 2.1 acres. Side slopes toward the park shall have a maximtun slope af 6H: 1 V. Side slop'es in other directions shall be a maximum slope of 4 H: 1 V. The fencing and landscaping for the detention baSins shall be reviewed and approved by the Planning Division and Public Services Department. Planting along the slopes and bottom af the pond shall be easy to maintain and k~ep free fram trash and shall be able to survive estimated periods af inundation. Specialized turf grass may be acceptable in some locations. The detentian basin shall contain a subsurface capture volume extending a minimum of2.4 feet below the bottom af the drainage system to store storm water for infiltration. The footprint of the capture zane shall be protected from any comp~ction during construction and shall maximize surface area in lieu af depth. The design shall show that the sub-surface flows entering the basin will not result in short circuiting. This capture volume shall be oveiIain by amended native soil extending atleast ane foot above the tap of the drainage system. This amended soil shall have an infiltratian rate af 5 to 10 inches per hour. The rock capture volume shall be designed such that water collected and stored in subsurface areas does not Create shrink and swell problems in the soils beneath proposed roadways or sidewalks. The design shall specifically address this' issue and be stamped by a geotechnical engineer. The banks of the pond shall be keyed and benched and compacted to a minimum of 95% relative compaction in lifts under the direction of a geatechnical engineer. The design shall specifically address the effect of the groundwater table on slope stability and subsurface structure stability. The detention basin system shall be designed to' meet the flow and cleaning requirements of SUSUMP. The detention basin system shall be designed to prevent increases in storm water runoff from the two-year 24 hour storm event compared to the predevelopment condition. The detention basin system shall be designed to prevent pollutants generated by the project from reaching storm drains or reduce pollutants generated to the maximum extent practicable. The detention basis shall be designed such that the 100 year peak flow from the site is no greater than the pre-develapment peak flaw. Unless the gravel infiltration area drains (infiltrates) within 24 hours, the design must prove that the 100 year peak flow in past development is equal to' or 10/28/10 . less than the 1 00 year peak flow storm pre-development when the subsurface deterition area is full and detaining water for infiltration. When calculating detention, the winter groundwater table level shall be taken into account. Storage below the groundwater table shall be. discounted from the required storage. The 24 inch perforated storm drain must be designed such that the bottom of the pipe is 1 foot above the maximum groundwater elevation. Upstream filtration shall be provided before water enters the pond subsurface pipes. This . filtration shall be capable of removing trash and fine sediments during all flow conditions to keep this trash out ofthe subsurface pipes and sediment out of the rock storage layer. A geotechnical engineer shall provide an estimate of the life of the subsurface storage system given the treatment mechairisms proposed and storm water runoff durlng construction and after construction. This estimate shall provide references and shall be stamped by the geotechnical. engineer. 10/28/10