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2007/02/13 City Council Resolution 2007-23RESOLUTION NO. 2007-23 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK, CALIFORNIA, APPROVING AN AFFORDABLE HOUSING COVENANT BETWEEN THE CITY OF ROHNERT PARK AND ASTON ASSET MANAGEMENT GROUP, LLC FOR THE VINEYARDS LIVE /WORK PROJECT WHEREAS, the City's Inclusionary Housing Ordinance requires that all new for -sale residential projects reserve a minimum of 15 percent of the units for low- and very low- income tenants; WHEREAS, the "Vineyards" project was approved in 2006 to allow up to 8 live /work units on property located at 5210 Country Club Drive (PL2003- 062UP /PL2005- 069TM); WHEREAS, Condition 45 of that project's approval requires that at least one (1) of the units be reserved for sale to a moderate - income household for a minimum period of 45 years; WHEREAS, Condition #5 of the project's approval further states that an affordable housing agreement shall be prepared to indicate the standards for maximum qualifying household incomes and maximum sales price for the affordable unit, the party responsible for verifying incomes, how vacancies will be marketed and filled, restrictions binding on the property upon sale or transfer, maintenance provisions, and any other information required by the City to comply with the conditions of approval for this project;. WHEREAS, Staff has prepared an Affordable Housing Covenant between the City of Rohnert Park and Aston Asset Management Group, LLC for the Vineyards Live /Work project; WHEREAS, the City Council of the City of Rohnert Park has reviewed and considered the information contained in the Staff Report and all relevant materials regarding the Affordable Housing Covenant between the City of Rohnert Park and Aston Asset Management Group, LLC for the Vineyards Live /Work project. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby authorize and approve an Affordable Housing Covenant between the City of Rohnert Park and Aston Asset Management Group, LLC for the Vineyards Live /Work project. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute documents pertaining same for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED this 13`x' day of February, 2007. ATTEST: City Cl BREEZE: AYE MACKENZIE: AYE SMITH: AYE $l AYES: (5) NOES: (0) ABSENT: (0) CITY OF ROHNERT PARK ABSTAIN: (0) :05 -d RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park Community Development Department 6750 Commerce Boulevard Rohnert Park, CA 94928 -2486 (Space Above This Line for Recorder's Use Only) [Exempt from recording fee per Gov_ Code § 273831 AFFORDABLE HOUSING AGREEMENT THIS AFFORDABLE HOUSING AGREEMENT ( "Agreement ") is entered into as of the day of , 2007 ( "Effective Date "), by and between the CITY OF ROHNERT PARK, a municipal corporation ( "City ") and ASTON ASSET MANAGEMENT GROUP, LLC, a California limited liability company ( "Developer "). RECITALS A. Developer is the owner of that certain real property located in the City of Rohnert Park, County of Sonoma, State of California, more particularly described in Exhibit A attached hereto ( "Site "). The Site is part of a residential development ( "Project ") being developed by Developer in accordance with City of Rohnert Park Planning Commission Resolution No. 2006 -4 ( "Resolution "). Housing is being constructed on the Site. As such, this Agreement is being recorded against the Site to provide notice of and secure the obligation to construct the Affordable Unit. The location of the Affordable Unit shall be as set forth in Exhibit B, and housing constructed on the remainder of the Site shall not be subject to affordability restrictions. B. City issued the approval for the Project subject to certain conditions of approval. Condition of Approval No. 5 requires that the Developer reserve at least one (1) unit in the Project for sale to a moderate- income household. C. City is acting to carryout its obligations under Rohnert Park Municipal Code Section 17.07.020(N) ( "Ordinance ") and any implementing regulations (collectively, the "City Inclusionary Housing Requirements "), and Developer agrees to comply with the City Inclusionary Housing Requirements. All terms and definitions not otherwise defined herein shall have the same definitions as included in said Section 17.07.020(N). D. Developer and City desire to set forth Developer's obligations to provide affordable housing in a recorded document. Developer and City hereby agree that one (1) unit on the Site (the "Affordable Unit ") as described in Legal Description of the Affordable Unit, attached as Exhibit B hereto and incorporated herein by reference, shall be subject to the conditions, restrictions, and rights of City as specified below. The remaining units on the Site shall be referred to as "Market Rate Units." NOW, THEREFORE, Developer and City agree as follows: ARTICLE 1 SALE OF AFFORDABLE UNIT 1.1 Defined Terms. The following terns shall have the meanings set forth in this Section 1.1: A. "Affordable Sales Price" means the maximum purchase price that will be affordable to the specified target income household. A maximum purchase price shall be considered affordable only if the Owner - Occupied Monthly Housing payment is equal to or less than one - twelfth (1/12) of thirty percent (30 %) 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. B. "Eligible Household" shall mean and include a person or household (1) meeting the definition of "Moderate Income Household" under this Section 1.1; and (ii) who otherwise meets Developer's standard criteria for determining eligibility for occupancy, which may include an evaluation of the applicant's ability to pay mortgage, employment status and credit history. These standard criteria may vary from time to time, but must be uniformly applied at all times. C. "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. D. "Moderate Income Households" means those households with incomes of up to one hundred twenty percent (120 %) of Median Income. E. "Owner- Occupied Monthly Housing Payment" 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 twelve (12). 1.2 Affordability Requirements and Restrictions A. Developer shall construct one (1) Affordable Unit in the Project, which will be sold to and occupied by an Eligible Household. The Affordable Unit will be sold by Developer to a Moderate Income Household. . B. The Annual Household Income shall be considered for purposes of calculating the applicable income of the Eligible Household. "Annual Household Income" means the combined 9787190A 80078/0022 gross income for all adult persons living in a dwelling unit as calculated for the purpose of the Section 8 program under the United States Housing Act of 1937, as amended, or its successor. C. The Affordable Unit shall be comparable in number of bedrooms, exterior appearance and overall quality of construction to Market Rate Units in the Project. Subject to the prior written approval of the Planning and Community Development Director and City Manager, square footage of the Affordable Unit and interior features in the Affordable Unit may not be the same as or equivalent to those in Market Rate Units in the Project, so long as they are of good quality and are consistent with contemporary standards for new housing. D. City shall not approve any final inspection, permit any occupancy, or authorize the release of utilities for the Project (as shown on Exhibit C attached hereto and incorporated herein by reference), any unit therein, or any portion thereof, until the final inspection of the Affordable Unit that is required to be constructed has been approved. E. Developer shall make a written designation to City, at the time the final subdivision map for the Site is recorded, of the Unit that shall be the Affordable Unit, which designation shall be consistent with the terms of this Agreement, including without limitation Exhibit A. The total number of Affordable Units being offered for sale in accordance with this Article I shall be as required by Section 1.2.A. above. During the Term (as defined in Section 3.3) of this Agreement, the Affordable Unit shall be subject to all of the requirements of this Agreement, including without limitation the following additional restrictions and requirements: I . The Affordable Unit shall only be sold to and be occupied by an Eligible Household. The Affordable Unit shall only be sold to and be occupied by a Moderate Income Household at a price that does not exceed the Affordable Sales Price for such a Household. 2. The Affordable Unit shall only be sold to an Eligible Household approved by City in accordance with.this Agreement, the City Inclusionary Housing Requirements and the City's Affordable Housing Program. Developer shall work with City to obtain names of Eligible Households certified or maintained by City in accordance with City's Affordable Housing Program. In the event City does not maintain a list of Eligible Households, at least thirty (30) calendar days prior to any proposed sale or other transfer of any Affordable Unit during the Term, Developer shall submit to City and such certifying agency (if any) as selected by City ( "Certifying Agency"): (a) a copy of the written agreement of purchase and sale; (b) the prospective purchaser's /transferee's income certification, evidence of the purchaser's /transferee's status as an Eligible Household, a list of all assets owned by the prospective purchaser /transferee and any information reasonably necessary to enable City to determine compliance with the terms of this Agreement, in a form reasonably approved by the City; and (c) the income certification to be provided to any lender making a loan on the Affordable Unit. The City may require documentation reasonably evidencing and supporting the income and other financial information contained in the certifications, including the prospective purchaser's /transferee's income most recent income tax return. Developer shall bear all costs and expenses associated with such certification and eligibility determination process. Within thirty (30) calendar days from receipt of the documentation, City shall render a decision of eligibility or noneligibility. If the prospective purchaser /transferee qualifies as an Eligible Household, the purchase price of the Affordable Unit is within the definition of Affordable Sales Price, and the sale or transfer 978719v1A 80078/0022 complies with the City Inclusionary Housing Requirements, the City shall so certify in writing within such thirty (30) calendar days, and upon request shall execute a certificate, in recordable form, confirming that the proposed transaction complies with the requirements of this Article 1. If the prospective purchaser /transferee does not qualify as an Eligible Household, the purchase price of the Affordable Unit is not within the definition of Affordable Sales Price, or the sale or transfer does not comply with the City Inclusionary Housing Requirements, the City shall so notify the Developer in writing, within such thirty (30) calendar days, stating the basis for its determination in reasonable detail and the Developer shall not sell the Affordable Unit to such non - Eligible Household. 3. THERE SHALL BE NO SALE OR OTHER TRANSFER OF THE AFFORDABLE UNIT WITHOUT THE WRITTEN CERTIFICATION BY CITY THAT THE PURCHASER/TRANSFEREE IS AN ELIGIBLE HOUSEHOLD, THE PURCHASE PRICE OF THE AFFORDABLE UNIT IS WITHIN THE DEFINITION OF AFFORDABLE SALES PRICE FOR SUCH PURCHASER/TRANSFEREE AND THE CATEGORY OF SUCH AFFORDABLE UNIT, AND THE SALE OR TRANSFER COMPLIES WITH CITY'S INCLUSIONARY HOUSING REQUIREMENTS. ANY SALE OR OTHER TRANSFER OF THE AFFORDABLE UNIT IN VIOLATION OF THIS AGREEMENT SHALL BE VOID. 4. EACH PURCHASER OF AN AFFORDABLE UNIT SHALL ENTER INTO AND RECORD AT THE CLOSE OF ESCROW A REFINANCE AND RESALE LIMITATION AGREEMENT AND OPTION TO PURCHASE ( "LIMITATION AGREEMENT "), IN A FORM SUBSTANTIALLY SIMILAR TO EXHIBIT D, ATTACHED HERETO, SUPPLIED BY AND APPROVED BY CITY, AND FOR THE BENEFIT OF CITY. UPON RECORDATION OF THE LIMITATION AGREEMENT: (A) THIS AGREEMENT SHALL HAVE NO FURTHER FORCE OR EFFECT AS AN ENCUMBRANCE AGAINST THE AFFORDABLE UNIT ENCUMBERED BY THE LIMITATION AGREEMENT; AND (B) DEVELOPER SHALL HAVE NO FURTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE AFFORDABLE UNIT, ENCUMBERED BY THE LIMITATION AGREEMENT, INCLUDING WITHOUT LIMITATION ANY RESPONSIBILITY FOR COMPLIANCE BY THE BUYER OR ITS SUCCESSORS WITH THE TERMS AND CONDITIONS OF THE LIMITATION AGREEMENT SIGNED BY PURCHASER, PROVIDED THAT DEVELOPER HAS COMPLIED WITH THE TERMS OF THIS AGREEMENT. 1.3 Alternative Equivalent Action. As to any Affordable Unit which is either (1) not under a sales contract with six (6) months after the issuance of a certificate of occupancy, with pre - approved financing, or (ii) for which escrow has not closed, within nine (9) months after issuance of a certificate of occupancy and the sales contract has been terminated ( "Unsold Affordable Unit"), Developer may petition the City Council to consider an "Alternative Equivalent Action" as set forth in and in conformance with the City Inclusionary Housing Requirements. 978719v1A 80078/0022 ARTICLE 2 MAINTENANCE AND MARKETING 2.1 Maintenance and Management. During the Term (as defined in Section 3.3 below), the Site and the Project shall be maintained by the homeowners association formed to manage, operate and maintain the Project. The maintenance obligations will include maintenance of the improvements and landscaping. Developer agrees to maintain the Affordable Unit in a clean and orderly condition and in good condition and repair, including the maintenance of improvements and landscaping, and to keep the Affordable Unit free from accumulation of debris and waste materials, until the close of escrow of the Affordable Unit. Upon the sale and close of escrow on the Affordable Unit, the Eligible Household which purchased the Affordable Unit will be a member of the Homeowners' Association and will be responsible for the payment of Homeowners' Association assessments as provided in the Covenants, Conditions and Restrictions ( "CC &R's ") for the Project. Developer represents and warrants that such Homeowners' Association assessments will equal $3,600.00 per Affordable Unit per year, subject to increases as provided for in the CC &R's. 2.2 Marketing and Sales Program and Marketing Reports. To the extent permitted by law, Developer and Certifying Agency shall work together to design a marketing and sales program that gives preference in the sale of the Affordable Unit to persons and households who meet the following criteria: (l) persons who live and work in Rohnert Park; (2) persons who live in Rohnert Park; (3) persons who work in Rohnert Park; (4) all others. Within ten (10) days of City's request, Developer shall deliver to City marketing and sales information for the Affordable Unit in form and substance reasonably acceptable to the City. 2.3. Verification of Citizenship or Qualified Alien Status. At the time of sale, Developer shall verify the citizenship or qualified alien status of all adult buyers as required under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law No. 104 -193, 8 U.S.C. § 1621). Developer shall verify the citizenship or qualified alien status by causing the applicants for purchase to complete and sign under penalty of perjury the HCD Benefit Status Form 1 (2/98) or such other form provided by HCD for this purpose_ The signed forms shall be forwarded by Developer to City. 2.4. Restrictions on Sales of Affordable Units. Developer shall not sell the Affordable Unit to any of the following: (a) anypartner, officer, shareholder or employee of Developer or any Family Member (defined below) of any partner, officer, shareholder or employee of Developer; (b) any member of the Rohnert Park City Council or any member of any City Board or Commission; and (c) any City employee who exercises any function or responsibility in connection with the Site or who has, or whose Family Member (defined below) has, an economic interest in the Site pursuant to the provisions of the Political Reform Act, Government Code section 87100 et seq. "Family Member" shall mean the spouse or child of the individual at issue or the individual's or his or her spouse's parent, grandparent, brother, sister, aunt, uncle, niece or nephew. 2.5 Effect of Article 2. This Article 2 shall terminate and be of no further force and effect as to Developer upon the first to occur of: (a) the last day of the Term; or (b) the closing of the sale by Developer of, and the transfer of title to, the last Affordable Unit pursuant to Article 1 above. 9787190A 80078/0022 ARTICLE .3 GENERAL PROVISIONS 3.1 Conditions of Approval. This Agreement is intended to enable Condition of Approval No. 5 imposed by the City pursuant to the Resolution. This Agreement shall not supercede any conditions of approval for the Project pursuant to the Ordinance or other applicable City Inclusionary Housing Requirements, but is intended to be consistent with the Ordinance and other applicable City Inclusionary Housing Requirements. In the event of any conflict between this Agreement and the City Inclusionary Housing Requirements, the City Inclusionary Housing Requirements in effect as of the date of this Agreement shall prevail. 3.2 Notices. Notices required to be given to City or to Developer shall be given by hand delivery, recognized overnight courier (such as UPS, DHL or FedEx) or certified mail, return receipt requested, to the following addresses, or to such other address(es) as a party may designate from time to time by written notice to the other: To the Developer: Aston Asset Management Group, LLC 46A Main Street Tiburon, CA 94920 Attention: Ron Bart To the City: City of Rohnert Park Community Development Department 6750 Commerce Boulevard Rohnert Park, CA 94928 Attention: Housing Manager 3.3 Duration. The covenants set forth herein on the Affordable Unit shall be covenants running with the land and shall inure to the benefit of the City and its successors and assigns, and subject to any shorter time limitations specifically set forth herein, shall be enforceable by the City and its successors and assigns, for a period of- forty -five (45) years from the later of (a) initial occupancy of the Project or (b) issuance of a Certificate of Completion for the Affordable Unit ( "Term "). Developer and City shall confirm the commencement and expiration dates of the Term in a written, recordable instrument. The parties agree that for the Term, all future deeds for or transfers of interest in the Affordable Unit shall show or reference the applicable restrictions of this Agreement. Upon recordation of the Limitation Agreement as to the Affordable Unit, this Agreement shall have no further force or effect as an encumbrance against the Affordable Unit to which such Limitation Agreement pertains, and Developer shall have no further obligations or liabilities with respect to the Affordable Unit, including without limitation, any responsibility for compliance by the buyer or its successors with the terms and conditions of the Limitation Agreement, provided that Developer has complied with the terms of this Agreement. 9787190A 80078/0022 3.4 No Discrimination. Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, physical or mental disability, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Affordable Unit, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the Affordable Unit. 3.5 Amendment. This Agreement may be amended only in writing by City and Developer. 3.6 No Impairment of Lien. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor of Developer to the Site shall be bound by such covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 3.7. Successors and Asswns. A. Binding Effect; Covenants Run with Land. The covenants contained in this Agreement shall inure to the benefit of the City and its successors and assigns and shall be binding upon Developer and any successor in interest as owner of fee title to the Site, or any part thereof. Upon the transfer by Developer of all or any portion of its interest in the Site; all references in this Agreement to Developer thereafter shall mean and refer to such successor in interest of Developer as may then be the owner of the Site or such portion thereof, or interest therein. In the event that Developer transfers the Site or any portion thereof or interest therein to more than one successor in interest, all successors in interest shall be collectively required to comply with the provisions of this Agreement and shall be jointly and severally liable for any breach or failure to comply, unless each successor and City enter into an agreement outlining the specific obligations of each successor for compliance with this Agreement. The covenants in this Agreement shall run in favor of City and its successors and assigns for the entire period during which such covenants shall be in force and effect. City, and its successors and assigns, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach. B. Transfer by Developer of Site. Except as expressly permitted by this Section 3.7.13, Developer shall not sell, transfer, convey, assign or ground lease the Site or any part thereof or interest therein ( "Transfer ") during the period between the date of recordation of this Agreement and the closing date for the sale of the Affordable Unit pursuant to Article I above without prior written approval of the City. The City's approval shall not be unreasonably withheld or delayed. This restriction shall not apply to (i) any Transfer of a Unit to an individual homebuyer, (ii) any Transfer of Developer's interest in the Site to any trust, partnership, corporation, limited liability company or other entity that is managed and controlled by Developer whether through any trust, partnership, corporation, limited liability company or other entity, or (iii) any Transfer after the closing date for the Affordable Unit sold pursuant to Article 1 above. This restriction on Transfer shall not be deemed to limit or restrict the making 9787190A 80078/0022 of dedications or granting of easements or permits to facilitate the development of the Site, or to limit or restrict the sale of any individual Units. This restriction on Transfer shall also not be deemed to prohibit, limit or restrict the assignment or granting of any security interests in the Site for the purpose of securing loans or funds to be used for financing the construction of the improvements on the Site, or the exercise by any lenders of their rights and remedies, including without limitation foreclosure, under the agreements and instruments evidencing or securing any such financing. 3.8 No Third Party Beneficiaries. Notwithstanding anything in this Agreement to the contrary, there are no third party beneficiaries of this Agreement. 3.9 Effect of Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall have any force or effect on any buyer or buyer's right, title or interest in or to any unit other than the Affordable Unit, except that the buyer of the Affordable Unit shall execute and be subject to the Limitation Agreement. The foregoing exemption and release shall be self - executing and require no further instruments or assurances to be effective. 3.10 Default and Remedies. A. Any failure by Developer to perform any term or provision of this Agreement shall constitute an "Event of Default" (1) if Developer does not cure such failure within thirty (30) days following written notice of default from City, or (2) if such failure is not of a nature which cannot reasonably be cured within such thirty (30) day period, Developer does not within such thirty (30) day period commence substantial efforts to cure such failure or thereafter does not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure. B. Any notice of default given hereunder shall specify in detail the nature of the failure in performance alleged by City and the manner in which such failure of performance may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure to perform, Developer shall not be considered to be in default of this Agreement for any purposes. C. Any failure or delay by City in asserting any of its rights or remedies as to any Event of Default shall not operate as a waiver of any Event of Default or of any such rights or remedies or deprive City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. D. In the event of an Event of Default under this Agreement, City shall have the right to exercise all of the rights and remedies, and to maintain any actions under this Agreement, the Ordinance, at law, in equity, or other remedy proceedings. E. Notwithstanding the foregoing, in the event that Developer fails to comply with the terms of this Agreement, City may suspend issuance of building permits for Market Rate Units, building inspections of Market Rate Units, or issuance of occupancy permits for Market Rate Units, or pursue any other remedy available to it. 978719v1A 80078/0022 3.11 California Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of California. 3.12 Severability. Should any provision of this Agreement be found invalid or unenforceable by a court or other body of competent jurisdiction, said invalidity, unenforceability or ineffectiveness shall not affect the validity of the remaining provisions which shall remain in force and effect pursuant to the limitations and duration agreed to herein. 3.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. The exhibits attached to this Agreement are incorporated by reference. [Signature page follows] 9787190A 80078/0022 IN WITNESS WHEREOF, City and Developer have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized. Date: ATTEST: LM City Clerk APPROVED AS TO FORM: C City Attorney Date: SIGNATURES MUST BE NOTARIZED 978719v1A 80078/0022 CITY: THE CITY OF ROHNERT PARK C Name: Its: City Manager DEVELOPER: ASTON ASSET MANAGEMENT GROUP, LLC, a California limited liability company By: , a California limited liability company dba Its: Sole Member Name: Its: State of California ss. County of _ On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (Seal) Signature State of California ss. County of On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature 9787190A 80078/0022 (Seal) State of California ) ) ss. County of ) On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (Seal) Signature 978719v1A 80078/0022 EXHIBIT A Legal Description of Site Exhibit A 978719v1A 80078/0022 EXHIBIT B Legal Description of Affordable Unit Moderate Income Affordable Unit: Unit 4 within Condominium Plan for "The Vineyards - A Condominium Subdivision" Exhibit B 978719vIA 80078/0022 EXHIBIT C Depiction of Protect Building Exhibit C 978719v1A 80078/0022 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park Planning Department 6750 Commerce Boulevard Rohnert Park, CA 94928 -2486 EXHIBIT D (Space Above This Line for Recorder's Use Only) [Exempt from recording fee per Gov. Code § 27383] REFINANCE AND RESALE LIMITATION AGREEMENT AND OPTION TO PURCHASE For valuable consideration, the receipt of which is hereby acknowledged, (individually or collectively, "Owner "), and THE CITY OF ROHNERT PARK ( "City ") agree as follows, with reference to the following facts: RECITALS A. Owner owns that certain real property located at 5218/5232 Country Club Drive, Rohnert Park, California and more particularly described in Attachment 1 attached hereto and incorporated herein. The real property, which includes the land, the residence and all other improvements thereon, and all membership and other rights appurtenant thereto, is referred to in this Agreement as the "Affordable Unit." The Affordable Unit is part of a residential community referred to herein as the "Project." B. City has acted to enforce the inclusionary housing requirements set forth in Rohnert Park Municipal Code Section 17.07.020(N) ( "Ordinance ") and any implementing regulations (collectively, the "City Inclusionary Housing Requirements ") by establishing an affordable housing program for the City of Rohnert Park. As part of the affordable housing program, City has procured assurances that the Affordable Unit will be sold, owned and occupied only by members of an Eligible Household (as defined below), and will be sold only for a price that does not exceed the Affordable Sales Price (as defined below). C. Owner has received the benefit of these assurances in purchasing the Affordable Unit, and is providing the same assurances for the benefit of the City by entering into this Agreement. Owner and City therefore agree that the Affordable Unit shall be subject to the terms, conditions and restrictions, and the rights of City, as specified in this Agreement. Exhibit D 978719v1A 80078/0022 - 1 - NOW, THEREFORE, in this factual context, for good and valuable consideration, Owner and City agree as follows: 1. Principal Residence. Owner shall occupy the Affordable Unit as his or her principal and legal residence. Upon request by the City, Owner shall submit an affidavit to the City certifying that the Affordable Unit is the Owner's principal and legal residence. 2. Documentation. Concurrently with execution of this Agreement, Owner shall execute a Disclosure Statement in the form. of Attachment 2, attached hereto, and shall execute and acknowledge a Deed of Trust securing its obligations under this Agreement in the form of Attachment 3, attached hereto. The Deed of Trust shall be recorded. in the Official Records of Sonoma County. City may execute and record a Request for Notice of Default in the form attached hereto as Attachment 4. 3. Debt and Refinance Limitations. Without the City's prior written consent, Owner shall not obtain or refinance any loan in connection with the Affordable Unit (a "Loan ") that causes Owner's indebtedness (i.e. the total amount borrowed by Owner) in connection with the Affordable Unit to exceed the Affordable Sales Price (as defined in Section 4(a) below). 4. Submission of Loan or Refinance Information to City. Not less than forty -five (45) days prior to obtaining or refinancing a Loan that requires City's approval, Owner shall submit to City a copy of the proposed loan's terms together with any and all other information reasonably requested by City, including without limitation a copy of the loan application and Good Faith Estimate. Within fifteen (15) business days from receipt of the information, City shall render a decision. If City does not approve the Loan, City shall so notify Owner in writing within such fifteen (15) business days, stating the basis for its determination in reasonable detail. 5. Resale Limitations. Except as otherwise provided in this Agreement during the Term (as defined in section 17 below), the Affordable Unit shall only be sold to an Eligible Household approved by City in accordance with the terms of the Agreement, the City Inclusionary Housing Requirements and the City's Affordable Housing Program for an amount that does not exceed the Affordable Sales Price. As used in this Agreement: a. "Affordable Sales Price" means the maximum purchase price that will be affordable to the specified target income household. A maximum purchase price shall be considered affordable only if the Owner - Occupied Monthly Housing Payment is equal to or less than one - twelfth (1/12) of thirty percent (30 %) 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. b. "Moderate Income Households" means those households with incomes of up to one hundred twenty percent (120 %) of Median Income. Exhibit D 978719viA 80078/0022 - 2 _ C. "Eligible Household" shall mean and include a person or household (i) meeting the definition of "Moderate Income Household" under this Section 5; and (ii) who otherwise meets City's standard criteria for determining eligibility for occupancy, which may include an evaluation of the applicant's ability to pay mortgage, employment status and credit history. These standard criteria may vary from time to time, but must be uniformly applied at all times. d. "Owner- Occupied Monthly Housing Payment" 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 twelve (12). e. "Median Income" shall mean the area -wide median gross yearly income in Sonoma County, adjusted for household size, as established from time to time by the U.S. Department of Housing and Urban Development ( "HUD "), or, by the California Department of Housing and Community Development ( "HCD ") if HUD ceases to establish such income standards. In the event that neither HUD nor HCD are establishing such income standards, the City shall provide Owner with income standards which are determined in a manner reasonably similar to the methods of calculation previously used by HUD or HCD. Notwithstanding any other provision in this section: (1) the maximum sales price permitted on resale of an Affordable Unit intended for owner- occupancy shall not exceed the seller's purchase price, adjusted for the percentage increase in Median Income since the seller's purchase, plus the value of substantial structural or permanent fixed improvements to the property, plus the cost of reasonable seller's broker fee as determined by the City Manager; (2) the resale restrictions shall provide that in the event of the sale of an affordable unit intended for owner- occupancy, the city shall have the right to purchase or assign its right to purchase such affordable unit at the maximum price which could be charged to an eligible household. g. Designation of Unit. The Affordable Unit is designated for ownership by a Moderate- Income Household. Except as expressly permitted under this Agreement, the Affordable Unit can be sold only to an Eligible Household with income limitations that do not exceed those of a Moderate-lncome Household, as that term is defined in this Agreement. 6. Submission of Resale Information to City Not less than forty -five (45) days prior to any proposed sale or other transfer of the Affordable Unit during the Term, Owner shall submit to City: (a) a Notice of Intent to Transfer in the form attached hereto as Attachment 5, (b) a copy of the written agreement of purchase and sale, (c) the prospective purchaser's /transferee's income certification, evidence of the purchaser's /transferee's status as an Eligible Household; a list of all assets owned by the prospective purchaser /transferee and any information reasonably necessary to enable City to determine compliance with the terms of this Agreement, in a form reasonably approved by the City, and (d) the income certification to be provided to any lender making a loan on the Affordable Unit. City may require documentation reasonably Exhibit D 978719v1 A 80078 /0022 - 3 - evidencing and supporting the income and other financial information contained in the certifications, including the prospective purchaser's /transferee's income most recent income tax return. Within thirty (30) calendar days from receipt of the documentation, City shall render a decision of eligibility or noneligibility. If the prospective purchaser /transferee qualifies as an Eligible Household, the purchase price of the Affordable Unit is within the definition of Affordable Sales Price and the sale or transfer complies with the City Inclusionary Housing Requirements, the City shall so certify in writing within such thirty (30) calendar days, and upon request shall execute a certificate, in recordable form, confirming that the proposed transaction complies with the requirements of this Agreement. If the prospective purchaser /transferee does not qualify as an Eligible Household, the purchase price of the Affordable Unit is not within the definition of Affordable Sales Price or the sale or transfer does not comply with the City Inclusionary Housing Requirements, the City shall so notify Owner in writing, within such thirty (30) calendar days, stating the basis for its determination in reasonable detail and Owner shall not sell the Affordable Unit to such non - Eligible Household. 7. Ineligible Transfers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE SHALL BE NO SALE OR OTHER TRANSFER OF THE AFFORDABLE UNIT WITHOUT THE WRITTEN CERTIFICATION BY THE CITY THAT THE PURCHASER / TRANSFEREE IS AN ELIGIBLE HOUSEHOLD, THE PURCHASE PRICE OF THE AFFORDABLE UNIT IS WITHIN THE DEFINITION OF AFFORDABLE SALES PRICE AND THE SALE OR TRANSFER COMPLIES WITH THE CITY INCLUSIONARY HOUSING REQUIREMENTS. ANY SALE OR OTHER TRANSFER OF THE AFFORDABLE UNIT IN VIOLATION OF THIS AGREEMENT SHALL BE VOID. S. Permissible Transfers. The following transfers of title to an Affordable Unit or any interest therein are not subject to the City's prior written approval so long as the transferee's household (i.e., the persons or persons acquiring ownership of the Affordable Unit) qualifies as an Eligible Household and occupies the Affordable Unit in compliance with the terms of this Agreement: (a) transfer by gift, devise or inheritance to the spouse, issue or adopted child of the Owner; (b) transfer resulting from death of an Owner when the transfer is to a co -Owner or joint tenant; (c) transfer by an Owner to any person who becomes a co -Owner of the Affordable Unit provided (1) the Owner retains at least a 33% interest in the Affordable Unit, (ii) the co -Owner and Owner together qualify as an Eligible Household, and (iii) co -owner agrees to be bound by this Agreement by signing a copy of this Agreement and delivering it to the City; (d) transfer of title to a spouse resulting from divorce; (e) decree of dissolution or legal separation or from a property settlement agreement incidental to such a decree in which one of the Owners becomes the sole owner; (f) acquisition of title to the Affordable Unit or interest therein in conjunction with marriage; or (g) a transfer between co- Owners or a transfer by Owner into an inter vivos trust in which Owner is a beneficiary and Owner continues to occupy the Affordable Unit. Exhibit D 9787190 A 80078/0022 -4- 9. Effect of Sale. THE PURCHASER OF THE AFFORDABLE UNIT FROM OWNER SHALL ENTER INTO AND RECORD AT THE CLOSE OF ESCROW A NEW REFINANCE AND RESALE LIMITATION AGREEMENT AND OPTION TO PURCHASE, IN A FORM SIMILAR TO THIS AGREEMENT, SUPPLIED AND APPROVED BY THE CITY, AND FOR THE BENEFIT OF THE CITY. IF THE PURCHASER FAILS TO EXECUTE A NEW AGREEMENT, PURCHASER WILL REMAIN SUBJECT TO THIS AGREEMENT. UPON THE CLOSING, AND RECORDATION OF THE NEW REFINANCE AND RESALE LIMITATION AGREEMENT AND OPTION TO PURCHASE, OWNER SHALL HAVE NO FURTHER OBLIGATIONS OR LIABILITIES TO THE CITY WITH RESPECT TO THE AFFORDABLE UNIT, INCLUDING WITHOUT LIMITATION ANY RESPONSIBILITY FOR COMPLIANCE BY THE PURCHASER OR ITS SUCCESSORS WITH THE TERMS AND CONDITIONS OF THE NEW REFINANCE AND RESALE LIMITATION AGREEMENT AND OPTION TO PURCHASE. 10. City's Option to Purchase. a. Option Notice. If Owner cannot in good faith, and despite using best commercially reasonable efforts, locate an Eligible Household to purchase the Affordable Unit at an Affordable Sales Price, Owner shall have the right, but not the obligation, to give the City written notice of such circumstances ( "Option Notice "). However, the Owner shall not sell the Affordable Unit for a price that exceeds the Affordable Sales Price or to.a non- Eligible Household without first giving the City an Option Notice so that the City has the opportunity to exercise the option granted by this Section 10. b. Option. In the event Owner gives City an Option Notice or Owner is in default under Section 15 below, the City may purchase the Affordable Unit at a price equal to the lesser of (i) the fair market value of the Affordable Unit (as determined by agreement of the parties or in the absence of an agreement, by an appraisal acceptable to the City), or (ii) the Affordable Sales Price, using the maximum housing cost for the Eligible Household, as adjusted for the applicable unit size as defined in Health and Safety Code Section 50052 or any successor thereto. This option shall be exercised by the City giving the Owner notice, no later than ninety (90) days following City's receipt of the Option Notice or Owner's Default, of.the City's intent to purchase the Affordable Unit ( "Exercise Notice "). The City may designate another governmental entity, a nonprofit organization or an Eligible Household to purchase the Affordable Unit. If City or its designee does not exercise the option to purchase the Affordable Unit, then the terms of Section 12 below shall apply. 11. Escrow. If the City exercises its rights under Section 10 above, the closing of the purchase and sale of the Affordable Unit to the City or its designee shall be effectuated in accordance with the following provisions: Exhibit D 978719v1A 80078/0022 - 5 - a. Close of Escrow. Close of escrow shall occur no. later than one hundred twenty (120) days following the receipt by Owner of the Exercise Notice. If escrow is required to close on a Saturday, Sunday or Holiday, it shall close on the next business day following the Saturday, Sunday or Holiday. b. Prorations and Costs. All title insurance premiums, transfer taxes and escrow fees shall be paid according to customary practice in Sonoma County. C. Escrow Instructions. The parties shall execute all escrow instructions which the Escrow Holder reasonably requires within.fifteen (15) days after the request thereof. All escrow instructions shall be consistent with the provisions of this Agreement. Proceeds of Escrow; Removal of Exceptions to Title. Owner shall convey the Affordable Unit to City free and clear of all liens other than the lien for current, unpaid, non - delinquent taxes. All amounts deposited into escrow by City shall be applied first to the payment of liens recorded against the Affordable Unit in order of lien priority, and thereafter to the Owner's share of escrow fees and closing costs. The balance of the Option purchase price remaining after payment of liens and Owner's share of escrow fees and closing costs, if any, shall be paid to Owner upon the close of escrow. 12. Owner's Right to Sell Free of Restrictions. In the event City does not exercise the purchase option provided pursuant to Section 10, or City does exercise the option but fails to close the transaction as provided in Section 11 above for any reason other than a default by Owner, Owner shall have the right, for a period of 180 days after the date City's option expired or City failed to close, as the case may be, to sell the Affordable Unit for a market sales price to any buyer, regardless of income, without any obligation on the part of the buyer to enter into and record a new Refinance and Resale Limitation Agreement and Option to Purchase at closing. In the event of such a sale, this Agreement shall have no force or effect as an encumbrance against the Affordable Unit on and after the closing date. If Owner or the buyer requests, the City shall provide a recordable quitclaim deed at closing in accordance with Section 17 below. If Owner does not close on the sale of the Affordable Unit within the 180 day -period provided herein, the requirements of this Agreement shall again apply to any proposed sale of the Affordable Unit, including without limitation, the City option rights. 13. Transfer Fees. Upon the transfer of the Affordable Unit during the Term, Owner shall pay the City any applicable transfer fee. 14. Other Covenants. a. No Discrimination. Owner covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group oipersons on account of race; color, creed, religion, sex, age, marital status, disability, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Affordable Unit, nor shall Exhibit D 978719vtA 80078/0022 - 6 - the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees or vendees in the Affordable Unit. b. Maintenance. During the duration of this Agreement, Owner shall keep the Affordable Unit in good condition, order and repair and shall not commit waste or permit impairment, demolition or deterioration of the Affordable Unit. City shall have the right to inspect the Affordable Unit, provided notice is given to the owner prior to any such inspection. C. Taxes and Assessments. Owner shall pay at least ten days before delinquency, all taxes and assessments on the Affordable Unit. d. No Liens. Owner shall keep the Affordable Property free from mechanic's and other liens. 15. Defaults and Remedies. a. Default. Failure or delay by Owner to perform any term, provision or covenant of this Agreement which is not cured within thirty (30) days after receipt of notice from City constitutes a default under this Agreement ( "Default "). b. Misdemeanors. It shall be unlawful, a public nuisance and a misdemeanor for any person to sell or rent an affordable unit at a price or rent exceeding the maximum allowed under this chapter or to a household not qualified under this chapter, and such person shall be subject to a fine of five hundred dollars ($500) per month from the date of original noncompliance until the affordable unit is in compliance with this section. b. Remedies. The Rohnert Park city attorney's office or the Sonoma County district attorney, as appropriate, shall be authorized to abate violations of this chapter and to enforce the provisions of this chapter and all implementing regulatory agreements and resale controls placed on affordable units by civil _action, injunctive relief, and any other proceeding or method permitted by law. City, in the event of any breach of any terms, provisions or covenants contained herein, shall have the right to exercise all of its rights and remedies allowed by this Agreement and by law, including the right to exercise the option set forth in Section 10, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 16. Notices. Notices required to be given to the City or to Owner shall be given by hand delivery, recognized overnight courier (such as UPS, DHL or FedEx) or by certified mail, return receipt requested, to the following addresses, or to such other address(es) as a party may designate from time to time by written notice to the other: Exhibit D 478719A A 80078/0022 -7- To City: City of Rohnert Park Community Development Department 6750 Commerce Boulevard Rohnert Park, CA 94928 To Owner: At the address set forth in Recital A. 17. Duration. The covenants set forth herein shall be covenants running with the land and shall inure to the benefit of the City and its successors and assigns, and shall be enforceable by the City of Rohnert Park or their successors and assigns, without regard to whether the City is or remains an owner of any land or interest to which such covenants relate, until the date that is 30 years after the date this Agreement is recorded ( "Term "). The parties agree that for the Term of this Agreement, all future deeds or transfers of interest shall show or reference the applicable restrictions of this Agreement. Upon expiration of the Term, City shall provide Owner with a quitclaim, release or other instrument, in recordable form, sufficient to confirm the release the Affordable Unit from the effect of this Agreement. 18. Amendment. This Agreement may be amended only in a writing signed by City and the Owner. 19. No Impairment of Lien. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor to Owner as owner of the Affordable Unit shall be bound by such covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 20. Successors and Assigns. The covenants contained in this Agreement shall inure to the benefit of the City and its successors and assigns and shall be binding upon Owner and any successor in interest to the Affordable Unit. Provided that Owner has complied with all terms of this Agreement, upon the transfer by Owner of all of its interest in the Affordable Unit, such Owner shall automatically be released from and have no further obligations or liabilities under this Agreement, and all references in this Agreement to Owner thereafter shall mean and refer to such successor in interest of a prior Owner as may then be the owner of the Affordable Unit. The covenants shall run in favor of the City and its successors and assigns for the entire period during which such covenants shall be in force and effect, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants relate. The City, and its successors and assigns, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach. Exhibit D' 978719vIA 80078/0022 - 8 - 21. No Third Party Beneficiaries. Notwithstanding anything in this Agreement to.the contrary, there are no third party beneficiaries of this Agreement. 22. California Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of California. 23. Severability. Should any provision of this Agreement be found invalid or unenforceable by a court or other body of competent jurisdiction, said invalidity, unenforceability or ineffectiveness shall not affect the validity of the remaining provisions which shall remain in force to the maximum extent possible. [Signature page follows] n Exhibit D 978719v1 A 80078/0022 - 9 - IN WITNESS WHEREOF, the City and the Owner have caused this Agreement to be executed on their behalf by their respective officers thereunto duly authorized. Dated for reference purposes only as of , 20 CITY: Date: THE CITY OF ROHNERT PARK By: Name: Its: City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney OWNER: Date: By: Name: By: Name: SIGNATURES MUST BE NOTARIZED Exhibit D 978719v]A80078/0022 -10- State of California ) ss. County of ) On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (Seal) Signature State of California ss. County of On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature 978719v1A 80078/0022 (Seal) State of California ) ) ss. County of ) On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature 9787190A 80078/0022 (Seal) ATTACHMENT I Legal Description of Affordable Unit [to be inserted] Attachment 1 to Exhibit D 978719v 1 A 80078/0022 ATTACHMENT 2 DISCLOSURE STATEMENT THERE ARE RESTRICTIONS ON THE SALE OF THE PROPERTY YOU`ARE BUYING. YOU MAY NOT SELL THE PROPERTY FOR MARKET VALUE TO WHOMEVER YOU LIKE. YOU MUST SELL THE PROPERTY TO AN "ELIGIBLE HOUSEHOLD" AT AN "AFFORDABLE SALES PRICE." IF YOU CANNOT DO SO, YOU MUST NOTIFY THE CITY, WHICH HAS AN OPTION TO PURCHASE THE PROPERTY. THERE ARE ALSO RESTRICTIONS ON OBTAINING AND REFINANCING LOANS IN CONNECTION WITH THE PROPERTY. YOU MAY NOT OBTAIN OR REFINANCE ANY EXISTING LOAN THAT CAUSES YOUR INDEBTEDNESS TO EXCEED THE "AFFORDABLE SALES PRICE," EXCEPT AS OTHERWISE APPROVED IN WRITING BY THE CITY OF ROHNERT PARK. THESE RESTRICTIONS WILL BE IN EFFECT UNTIL , 20_. IF YOU SELL THE PROPERTY IN VIOLATION OF THE RESTRICTIONS, THE SALE SHALL BE VOID. TO DETERMINE WHO IS AN ELIGIBLE HOUSEHOLD AND WHAT AN AFFORDABLE SALES PRICE IS, YOU SHOULD CONTACT THE CITY OF ROHNERT PARK'S HOUSING MANAGER. I HAVE READ THIS DISCLOSURE STATEMENT AND THE RESALE AND REFINANCE LIMITATION AGREEMENT AND OPTION TO PURCHASE AND I UNDERSTAND WHAT THEY MEAN. Owner Owner I HAVE REVIEWED THE ABOVE DISCLOSURE STATEMENT AND THE RESALE AND REFINANCE LIMITATION AGREEMENT AND OPTION TO PURCHASE WITH THE OWNER. City Housing Manager Attachment 2 to Exhibit D 978719v1A 80078/0022 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park Community Development Department 6750 Commerce Boulevard Rohnert Park. CA 94928 -2486 ATTACHMENT 3 (Space Above This Line for Recorder's Use Only) [Exempt from recording fee per Gov. Code § 27383] DEED OF TRUST AND SECURITY AGREEMENT APN: /to be inserted) THIS DEED OF TRUST AND SECURITY AGREEMENT ( "Deed of Trust ") is made this day of , 20, among ( "Trustor "), whose address is ( "Trustee "), whose address is and the City of Rohnert Park ( "Beneficiary"), whose address is 6750 Commerce Boulevard, Rohnert Park, CA 94928. Trustor irrevocably grants, conveys, transfers and assigns to Trustee in trust, with power of sale and right of entry and possession, all of Trustor's right, title and interest now owned or hereafter acquired in and to the real property in Sonoma County, California, described on Exhibit A attached hereto and incorporated herein by this reference, together with all buildings, structures and improvements now existing or hereafter constructed thereon ( "Improvements ") and all other property and interests of any kind or character which may be reasonably necessary or desirable to promote the present and future beneficial use and enjoyment of such real property and improvements ( "Property "). 1. Secured Obligations. Trustor makes the grant, conveyance, transfer and assignment herein for the purpose of securing Trustor's obligations under that certain Refinance and Resale Limitation Agreement between Trustor and Beneficiary dated ( "Secured Obligations "). 2. Maintenance and Repair. Trustor shall (a) keep the Property in good condition and repair and not remove or demolish any building; (b) complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed; (c) pay when due all claims for labor performed and materials furnished; (d) comply with all laws affecting the Property or requiring any alterations or improvements to be made; (e) not commit or permit waste; and (f) cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of the Property may be reasonably necessary. 3. Insurance. Trustor shall maintain hazard insurance against loss by fire, hazards included with the term "extended coverage," and any other hazards for which Beneficiary requires insurance, and liability insurance. The insurance carrier and the insurance policies and amounts Attachment 3 to Exhibit D 978719v1 A 80078/0022 - I - of coverage shall be acceptable to Beneficiary, the liability policy shall name Beneficiary as an additional insured, and shall require 30 days' prior notice to Beneficiary before the policy is modified or terminated. 4. Defense of Security. Trustor shall appear in and defend any action or proceeding purporting to affect the security or the rights or powers of Beneficiary or Trustee. Trustor shall pay all costs and expenses, including costs of evidence of title and attorneys' fees, in any such action or proceeding in which Trustee or Beneficiary may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust. 5. Payment of Taxes and Liens. Trustor shall pay (a) at least 10 days before delinquency, all taxes and assessments affecting the Property, including water stock assessments; (b) when due, all encumbrances, charges and liens, with interest, on the Property, which are or appear to be prior or superior to this Deed of Trust; and (c) upon demand all costs, fees and expenses of this Deed of Trust. If Trustor fails to make any payment or to do any act provided for in this Deed of Trust, then Beneficiary or Trustee may, without obligation to do so, and with or without notice to or demand upon Trustor, and without releasing Trustor from any obligation under this Deed of Trust: (1) make or do the same in such manner and to such extent as either may deem necessary to protect the security, Beneficiary or Trustee being authorized to enter upon the Property for such purposes; (ii) appear in or commence any action or proceeding purporting to affect the security, or the rights or powers of Beneficiary or Trustee; (iii) pay, purchase, contest or settle any encumbrance, charge or lien which in the judgment of either appears to be senior to this Deed of Trust; and (iv) in exercising any such powers, pay allowable expenses, including attorneys' fees. 6. Reimbursement of Costs. Trustor shall pay upon demand all sums expended by Beneficiary or Trustee provided for in this Deed of Trust or allowed by law, with interest from date of expenditure at the maximum rate allowed by law. 7. No Waiver. By accepting payment of any sum after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums or declare a default for failure to pay. 8. Reconveyance. That upon written request of Beneficiary stating that the Secured Obligations have been fulfilled, and upon surrender this Deed of Trust, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals of such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto." 9. No Renting Allowed. Trustor may not rent or lease all or any portion of the Property. 10. Default and Foreclosure. Upon default by Trustor in performance of any Secured Obligation, Beneficiary may deliver to Trustee a declaration of default and demand for sale and of a notice of default and a notice of sale, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust and all documents evidencing the Secured Obligations and expenditures, if any, secured by this Deed of Trust. Upon default of any obligation secured by this Deed of Trust and acceleration of all sums due, if any, Beneficiary Attachment 3 to Exhibit D 978719v1 A 80078/0022 - 2 - may instruct Trustee to proceed with a sale of the Property under the power of sale granted in this Deed of Trust, noticed and held in accordance with California Civil Code Sections 2924, et seq., as such statutes may be amended from time to time. Trustor waives all rights it may have to require marshaling of assets or to require sales of assets in any particular order, including any rights under California Civil Code Sections 2899 and 3433. 11. Substitution of Trustee. Beneficiary, or any successor beneficiary of the Secured Obligations or of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of the new Trustee. 12. " Successors and Assigns. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto; their heirs, legatees, devisees, administrators, executors, successors and assigns. The term 'Beneficiary" shall mean the holder, including pledgees, of the covenants set forth in the Resale and Refinance Restrictions and Option to Purchase, whether or not named as Beneficiary herein. 13. Trustee Acceptance. Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by Iaw. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee. 14. Further Assurances. Trustor shall, at its own cost and expense, do, execute, acknowledge, and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers, and assurances as Trustee or Beneficiary shall from time to time require, for better assuring, conveying, assigning, transferring, and confirming unto Trustee the Property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Trustor may be or may hereafter become bound to convey or assign to Trustee, or for carrying out the intention or facilitating the performance of the terms of this Deed of Trust, or for filing, registering; or recording this Deed of Trust. Trustor shall, on demand, execute and deliver, and hereby authorizes Trustee and Beneficiary, or either of them, to execute in the name of Trustor, to the extent it may lawfully do so, one or more financing statements, chattel mortgages, or comparable security instruments, to evidence more effectively the lien hereof. Immediately upon the execution and delivery of this Deed of Trust, and thereafter from time to time, Trustor shall cause this Deed of Trust, and any security instruments creating a lien or evidencing the lien hereof upon any personal property and each instrument of further assurance, to be filed, registered, or recorded in such manner and in such places as may be required by any present.or future law in order to publish notice of and fully to protect the lien hereof upon, and the title of Trustee to, the Property encumbered hereby. 15. Condemnation and Insurance Proceeds. Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation or other taking of all or any portion of Attachment 3 to Exhibit D 978719v1A 80078/0022 - 3 - the Property, or knowledge of any casualty damage to the Property, or damage in any other manner, Trustor shall immediately notify Beneficiary thereof. Trustor hereby authorizes and empowers Beneficiary as attorney -in -fact for Trustor to make proof of loss, to adjust and compromise any claim under the insurance policies covering the Property, to appear in and prosecute any action arising from such insurance policies, to collect and receive insurance proceeds, and to deduct therefrom Beneficiary's expenses incurred in the collection of such proceeds; provided, however, that nothing contained in this Section shall require Beneficiary to incur any expense or take any action hereunder. Trustor hereby authorizes and empowers Beneficiary, at Beneficiary's option, as attorney -in -fact for Trustor, to commence, appear in and prosecute, in Beneficiary's or Trustor's name, any action or proceeding relating to any condemnation or other taking of all or any part of the Property, whether direct or indirect, and to settle or compromise any claim in connection with such condemnation or other taking. The proceeds of any award payment or claim for damages, direct or consequential, in connection with any condemnation or other taking, whether direct or indirect, of the Property, or any part thereof, or for conveyances in lieu of the Property, or any part thereof, shall be paid to Beneficiary. The foregoing powers of attorney are coupled with an interest and are irrevocable. Trustor hereby authorizes Beneficiary to apply such awards, payments, proceeds or damages relating to condemnation of the Property and insurance covering the Property, after the deduction of Beneficiary's expenses incurred in the collection of such amounts, at Beneficiary's option, subject to the requirements of applicable law and the provisions hereof, to restoration or repair of the Property or to payment of the sums secured by this Deed of Trust. Beneficiary shall be under no obligation to question the amount of any compensation, awards, proceeds, damages, claims, rights of action; and payments relating to condemnation or other taking of the Property or insured casualty affecting the Property, and may accept the same in the amount in which the same shall be paid. Trustor shall execute such further evidence of assignment of any awards, proceeds damages or claims arising in connection with such condemnation or taking or such insurance as Beneficiary may require. 16. Severability. If any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Deed of Trust, but this Deed of Trust shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein or therein, but only to the extent of such invalidity. 17. Estoppel Certificate. Trustor shall, within ten (10) days of a written request from Beneficiary, furnish Beneficiary with a written statement, duly acknowledged, setting forth the sums secured by this Deed of Trust and any right of set -off, counterclaim or other defense which exists against such sums and the obligations of this Deed of Trust. 18. Due -On -Sale or Encumbrance. If all or any part of the Property, or any interest therein, or any beneficial interest in Trustor (if Trustor is not a natural person or persons but is a corporation, partnership, trust, limited liability company or other legal entity), is sold, transferred, mortgaged, assigned, pledged, or further encumbered, whether directly or indirectly, whether voluntarily or involuntarily or by operational law, Beneficiary may, at Beneficiary's option invoke any remedies permitted by this Deed of Trust. Attachment 3 to Exhibit D 978719v1A 80078/0022 - 4 - The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to Trustor at Trustor's address hereinbefore set forth. TRUSTOR: By: - Name: By: Name: Attachment 3 to Exhibit D 9787I9v1A80078/0022 - $ - Exhibit A Situated in the State of California, City of Rohnert Park, County of Sonoma, and described as follows: [insert legal description] 978719viA 80078/0022 State of California ) ss. County of ) On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the, within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature State of California ) ss. County of ) (Seal) On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (Seal) Signature 97871WIA 80078/0022 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park Community Development Department 6750 Commerce Boulevard Rohnert Park, CA 94928 -2486 ATTACHMENT 4 (Space Above This Line for Recorder's Use Only) [Exempt from recording fee per Gov. Code § 27383] REQUEST FOR NOTICE UNDER SECTION 2924B CIVIL CODE In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as Instrument No. on , in the Official Records of Sonoma County, California, and describing land therein as: executed by as Trustor, in which is named as Beneficiary, and , as Trustee, be mailed to the City of Rohnert Park, 6750 Commerce Boulevard, Rohnert Park, CA 94928, Attn: By: Nar NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED. Attachment 4 to Exhibit D 978719v1A 80078/0022 State of California ) ss. County of On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal (Seal) Signature 9787100 A 80078/0022 ATTACHMENT 5 Notice of Intent to Transfer VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED To: City of Rohnert Park Community Development Department 6750 Commerce Boulevard Rohnert Park, CA 94928 Attn: Housing Manager Date: Re: Notice of Intent to Transfer The undersigned Owner(s), hereby give(s) notice of his/her /their intent to transfer the property located at Rohnert Park, California ( "Property "). Owner may be contacted at the Property or at the following address: Owner's daytime telephone number is The proposed transfer of the Property is to the following person(s): Name: Address: Telephone: The proposed transfer is (check one): ❑ Sale ❑ Other Specify: _ Owner(s) signature(s): Attachment 5 to Exhibit D 9787190 A 80078/0022