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2018/11/13 City Council Resolution 2018-146 RESOLUTION NO. 2018-146 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING EXECUTION OF VARIOUS AFFORDABLE HOUSING AGREEMENTS BETWEEN THE CITY,PENN GROVE MOUNTAIN LLC AND THE HOUSING LAND TRUST FOR 16 OWNER-OCCUPIED AFFORDABLE DUET UNITS IN PHASE 2 OF THE WILLOW GLEN SUBDIVISION,AND AN AFFORDABLE HOUSING AGREEMENT BETWEEN THE CITY AND PENN GROVE MOUNTAIN LLC,FOR A 36-UNIT AFFORDABLE APARTMENT PROJECT, FOR IN THE WILLOW GLEN SUBDIVISION (SOUTHEAST SPECIFIC PLAN) WHEREAS,on December 7, 2010,the City Council of the City of Rohnert adopted Resolution No 2010-134 approving the Final Environmental Impact Report(EIR) for the Southeast Specific Plan; and WHEREAS,on November 25, 2014, the City Council of the City of Rohnert Park adopted Resolution No. 2014-165 approving an amended Final Development Plan for the Southeast Specific Plan Area; and WHEREAS,on November 25, 2014,the City Council of the City of Rohnert Park adopted Resolution 2014-166 the Tentative Map for the Southeast Specific Plan Area prepared by Civil Design Consultants (the"Tentative Map"), subject to certain conditions of approval ("Conditions"); and WHEREAS, on December 7, 2010,the City Council of the City of Rohnert Park adopted Ordinance No. 832, approving a Development Agreement("Development Agreement")between the City of Rohnert Park and Redwood Equities LLC, which included an Affordable Housing Plan; and WHEREAS, in accordance with Development Agreement, Redwood Equities LLC has assigned the Development Agreement to Penn Grove Mountain LLC ("Developer") an entity under common control with Redwood Equities LLC; and WHEREAS,on December 9, 2014, the City Council of the City of Rohnert Park adopted Ordinance No. 882, approving an amendment to the Development Agreement including amendments to the Affordable Housing Plan; and WHEREAS,the Development Agreement, including its Affordable Housing Plan, requires that certain affordable duet units be constructed with each market-rate phase of the subdivision and that the Affordable Housing Agreement for certain affordable apartment units be recorded prior to the issuance of the 100th market rate building permit; and WHEREAS,the City has approved the Final Map for Phase 1 of the Southeast Estates Subdivision,which includes 106 lots, and has approved a Memorandum of Understanding (MOU)between the City, developer and the Housing Land Trust of Sonoma County(HLT) and various affordable housing agreements with the developer and HLT, to implement the affordable duet requirements; and 1 WHEREAS,the developer is completing the market rate units in Phase 1 and will soon trigger the requirement the record the Affordable Housing Agreement for the apartment units; and WHEREAS,the Developer intends to file the Final Map for Phase 2 of the Southeast Estates Subdivision, consisting of 129 residential lots which including eight lots designated for 16 duet units that are to be affordable for low to moderate income earners; and WHEREAS, the Development Agreement requires that an Affordable Housing Agreement be entered into concurrent with the first Final Map to cover the construction, sale and operation of these duet units; and WHEREAS, the City does not have the staff resources and expertise to implement an Affordable Housing Plan for the Southeast Specific Plan Area; and WHEREAS, HLT is a nonprofit corporation with experience in the construction, sale and operation of affordable ownership opportunities, including opportunities within the Phase 1 project, and is qualified to execute manage the duet units in an Affordable Housing Agreement with the City and the Developer. NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby approve and authorize the City Manager to execute all documents necessary to effectuate the continued affordability of the 16 affordable ownership duet units as set forth in the MOU, including without limitation: 1. The"Inclusionary Housing Agreement"between the City and Developer, in substantially similar form to Exhibit A of this Resolution for the affordable duet units in Phase 2 of the Southeast Estates Subdivision; 2. The Affordable Housing Agreement and Declaration of Restrictive Covenants with Option to Purchase" ("Affordable Housing Agreement") by and between the City and HLT in substantially similar form to Exhibit B of this Resolution for the affordable duet units in Phase 2 of the Southeast Estates Subdivision; and BE IT FURTHER RESOLVED that the City Council hereby approves and authorizes the City Manager to execute the Affordable Housing Agreement by and between the City and Penn Grove Mountain LLC, in substantially similar form to Exhibit C of this Resolution for the 36-unit affordable apartment project, subject to revisions approved by the City Manager and City Attorney. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute any documents and take such further actions as are necessary to execute the Affordable Housing Plan, as provided herein, for and on behalf of the City of Rohnert Park. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to accept title to the eight properties on which the affordable duet units are located and convey title to the same properties to HLT for continued affordability using a form of deed approved by the City Attorney. (2 ) 2018-146 DULY AND REGULARLY ADOPTED this 13th day of November, 2018. CITY OF ROHNERT PARK Pam Stafford, Mayor ATTEST: b2tiititAr;. 044464,‘L Caitlin Saldanha, Assistant City Clerk Attachments: Exhibits A, B and C AHANOTU:Ay C BELFORTE:d4g4 MACKENZIE:1 CALLINAN:A T STAFFORD: Ay l AYES: ( ,l ) ABSTAIN: ( ) c ) NOES: ( a ) ABSENT: ( (3 ) 2018-146 Resolution Exhibit A 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: PENN GROVE MOUNTAIN LLC PO BOX 22357 HEALDSBURG CA 95448 City of Rohnert Park 130 Avram Avenue Rohnert Park CA, 94923 FOR RECORDER'S USE ONLY EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE§§6103,27383 Inclusionary Housing Agreement This Inclusionary Housing Agreement ("Agreement") is made on , 2018 by and between Penn Grove Mountain LLC ("Developer") and the City of Rohnert Park ("City"). RECITALS A. Developer is the owner of certain real property (the "Property") described as Lots 1 through 129, Assessor's Parcel Numbers , in the City of Rohnert Park California, which is entitled for the development of one hundred and twenty nine (129) residential lots, as shown on the final map for the Southeast Estates Subdivision Phase 2 (the"Development") recorded on . 2018, as document number - in the Official Records of the County of Sonoma, State of California ("Official Records"), in Book of Maps, Pages - B. As part of the City's approval of the Development, City has required the Developer to provide sixteen affordable housing units (individually a "Unit" and collectively the "Units") in eight duets as follows: eight for occupancy by persons whose income does not exceed 120% of the area median income (moderate income persons or households), and eight for occupancy by persons whose income does not exceed 80% of area median income (low income persons or households), all in satisfaction of City's inclusionary housing mandates set forth in Municipal Code Section 17.07.020(N)(2). Each lot associated with an affordable Unit and the plans for that residence, are designated, shown and described, in the attached Exhibit A, which is incorporated herein by this reference. C. Developer's affordable housing obligations contained herein are a material part of the consideration received by City in connection with its approval of the Development. Resolution Exhibit A 2 D. Capitalized terms not defined herein shall have the meaning ascribed to them in that certain Affordable Housing Agreement and Declaration of Restrictive Covenants with Option to Purchase,the form of which is attached here to as Exhibit B. NOW, THEREFORE, in consideration of the following covenants, the parties hereto agree as follows: 1.0 INCLUSIONARY HOUSING REQUIREMENTS 1.1 Restricted Units. Developer agrees, at its sole cost and expense, to construct or cause to be constructed, eight duets (sixteen Units), which it shall cause to remain available for a minimum of forty-five(45) years for the sale, transfer or conveyance to, and the occupancy of, the following categories of occupants: 8 Units for moderate income persons or households, and 8 Units for low income persons or households, all as designated, shown and described, in Exhibit "A" attached to this Agreement and incorporated herein by reference. Further, said Units shall be constructed in accordance with the City—approved building plans and specifications and in compliance with the inclusionary housing requirements set forth in Municipal Code Section 17.07.020(N)(2), except as expressly provided otherwise herein. The Units shall be made available for sale to Eligible Buyers and the total of the monthly mortgage, hazard insurance, property tax, and homeowners' association dues (if any) shall represent no more than thirty-eight percent(38%) of the total household income of the purchaser,with a maximum purchase price as follows: (a) For the Moderate-Income Units, $350,000, based on the Moderate-Income figures in existence when this Agreement was signed, but subject to an increase based on a change in the AMI between the date this Agreement was signed and the time at which said Moderate-Income Units are available for sale to Eligible Buyers. (b) For the Low-Income Units, $250,000, based on the Low-Income figures in existence when this Agreement was signed, but subject to an increase based on a change in the AMI between the date this Agreement was signed and the time at which said Low-Income Units are available for sale to Eligible Buyers. 1.2 Construction Timing. Said Units shall be constructed prior to the issuance of the final market-rate building permit for Phase 2 of the Development. If Developer fails to construct the Units in compliance with this requirement, the City may withhold the issuance of building permits for the remainder of the Development, until such time as the Developer comes into compliance with this requirement. 1.2 Tentative Map Conditions. In addition to the foregoing, Developer shall satisfy all other specific conditions of approval imposed by City on the tentative map for the Property. 1.3 Right to Locate / Approve Buyer. As between the Developer and the City, City reserves the right to locate and approve the initial Eligible Buyers of the Units. 2.0 INDEMNITY 2.1 Indemnity. To the maximum extent permitted by law, Developer agrees to indemnify, defend (with counsel approved by the City) and hold harmless City and its elected Resolution Exhibit A 3 and appointed officials, officers, employees, representatives and agents (collectively, "Indemnitees") from and against any and all claims, liabilities, losses, costs, demands, damages, causes of action, legal and administrative proceedings, penalties, deficiencies, fines, expenses and obligations (including, without limitation, attorneys' fees and costs of litigation) arising out of or relating in any manner to Developer's willful or negligent failure to perform the terms of this Agreement. The provisions of this Section shall survive the expiration or other termination of this Agreement or any release of all or part of the Property from the burdens of this Agreement. 3.0. ENFORCEMENT 3.1 Default. In the event Developer, through no fault of the City, materially defaults in the performance of any obligation under this Agreement, and such default remains uncured for a period of(30) days after City has delivered a written notice of such, or in the event a cure cannot be completed within thirty(30) days, if the Developer has not begun and diligently pursued the cure to completion, then City may declare an "Event of Default" to have occurred, in which case it may take one or more of the following steps: (a) By mandamus or other suit, action or proceeding at law or in equity, require Developer to perform its obligation under this Agreement, or enjoin any actions which may exacerbate damages caused by the default; (b) Take such other action at law or in equity as may be reasonably necessary or appropriate to enforce Developer's obligations hereunder. 3.2 Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for default by Developer, such remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal, or equitable remedy to which it may be entitled. 4.0. COVENANTS TO RUN WITH THE LAND 4.1 Binding on Successors. Developer hereby subjects the Property to the covenants, reservations and restrictions set forth in this Agreement and declares its express intent that all such covenants, reservations and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon the Developer's successors in title to the Property. All covenants without regard to technical classification or designation shall be binding for the benefit of City, and such covenants shall run in favor of City for the entire term of this Agreement. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be conclusively held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions set forth in this Agreement, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument. 4.2 Attorneys' Fees. In the event that a party to this Agreement brings an action against the other party hereto by reason of the breach of any condition or covenant, representation or warranty in this Agreement, or otherwise arising out of this Agreement, the prevailing party in such action shall be entitled to recover costs of suit, including reasonable attorneys' fees, as may be fixed by the court rendering judgment. Attorney's fees shall include Resolution Exhibit A 4 attorney's fees on any appeal. 4.3 Amendments. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the Official Records. 4.4 Severability/Waiver/Integration. (a) If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. (b) A waiver by either party of the performance of any covenant or condition herein shall not invalidate this Agreement nor shall it be considered a waiver of any other covenants or conditions, nor shall the delay or forbearance by either party in exercising any remedy or right, be considered a waiver of, or an estoppel against,the later exercise of such remedy or right. (c) This Agreement together with any exhibits contains the entire agreement between the parties. 5.0 FUTURE ENFORCEMENT BY CITY 5.1 Enforcement. The parties hereby agree that City shall have the right to enforce all of the terms and conditions herein. 6.0 GENERAL PROVISIONS 6.1 Modification. No modification to this Agreement shall be binding upon any party unless such modification is in writing and is signed by the party to be bound. 6.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 6.3 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one original Agreement. 6.4 Rule of Construction. The parties hereto acknowledge that they each enter into this Agreement after having an opportunity for thorough review by, and on advice of, their respective legal counsel. The judicial rule of construction requiring or allowing an instrument to be construed to the detriment of or against the interests of the maker thereof shall not apply to this Agreement. IN WITNESS WHEREOF, the Developer and City have executed this Agreement on the date first written above. Signatures on Next Page Resolution Exhibit A 5 "DEVELOPER": Penn Grove Mountain LLC By: Ben vanZutphen, Manager "CITY": CITY OF ROHNERT PARK By: Darrin Jenkins, City Manager Authorized by City Council Resolution 2018- adopted on November 13,2018 ATTEST: , City Clerk APPROVED AS TO FORM: , City Attorney Resolution Exhibit A 6 Exhibit A Dedication of Lots on Map for Four below Market Rate Units Unit Income Classification: Lot Nos. Moderate and Low 12, 13, 18, 19, 20, 21, 26, 27, 28, 29, 74, 75, 76, 77, 110, 111 Designation of Plans and Specifications for each Unit Lot No Plans & Specifications Unit Number of Square Feet Bedrooms 12 SE Medium Density Conventional Duet Plan 5 1412 3 13 SE Medium Density Conventional Duet Plan 4 1214 2 18 SE Medium Density Conventional Duet Plan 4 1214 2 19 SE Medium Density Conventional Duet Plan 5 1412 3 20 SE Medium Density Conventional Duet Plan 5 1412 3 21 SE Medium Density Conventional Duet Plan 4 1214 2 26 SE Medium Density Conventional Duet Plan 4 1214 2 27 SE Medium Density Conventional Duet Plan 5 1412 3 28 SE Medium Density Conventional Duet Plan 5 1412 3 29 SE Medium Density Conventional Duet Plan 4 1214 2 74 SE Medium Density Conventional Duet Plan 4 1214 2 75 SE Medium Density Conventional Duet Plan 5 1412 3 76 SE Medium Density Conventional Duet Plan 5 1412 3 77 SE Medium Density Conventional Duet Plan 4 1214 2 110 SE Medium Density Conventional Duet Plan 4 1214 2 111 SE Medium Density Conventional Duet Plan 5 1412 3 Sales Price of Below Market Rate Units Eight(8) Units . $350,000 Eight(8)Units $250,000 Resolution Exhibit A 7 CERTIFICATE OF ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss. SONOMA COUNTY ) On ,before me, , personally appeared , who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Resolution Exhibit A 8 CERTIFICATE OF ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss. SONOMA COUNTY ) On ,before me, , personally appeared ,who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Resolution Exhibit B Recording requested by and when recorded mail to: CITY OF Address Attn: City Clerk EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE§§6103,27383 Space above this line for Recorder's use. AFFORDABLE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS WITH OPTION TO PURCHASE ("REGULATORY AGREEMENT") This Affordable Housing Agreement and Declaration of Restrictive Covenants with Option to Purchase (this "Agreement") is entered into effective as of , 201_ ("Effective Date") by and between the City of Rohnert Park, a California municipal corporation ("City") and the Housing Land Trust of Sonoma County, a California nonprofit public benefit corporation ("HLT"). City and HLT are hereafter referred to as the "Parties." RECITALS A. Pursuant to Municipal Code Section 17.07.020(N)(2) (the "Code"), residential developments of or more units are required to contribute to the provision of below market-rate housing as specified therein. In order to satisfy its obligation under the Code with respect to that certain development known as the Southeast Estates Subdivision, consisting of 105 total lots including 101 market rate single family residential lots (the "Development") in the City of Rohnert Park County of Sonoma, and State of California, Redwood Equities LLC, a California Corporation ("Subdivider"), has agreed to contribute the property known as Lots _, _, _, , and _ in the Development, for the construction of four (4) residential units to be restricted for occupancy to certain income levels (the "Restricted Homes" or the "Project"), as set forth herein, and as more particularly described in Exhibit A attached hereto (the "Property"). B. As of the Effective Date, the Property has been conveyed to the City by Subdivider, and the Property has been or shall be conveyed to HLT by the City pursuant to a Grant Deed recorded in the Official Records of Sonoma County ("Official Records") substantially concurrently herewith. Resolution Exhibit B C. HLT has entered into, or shall enter into an agreement with Subdivider, pursuant to which Subdivider will construct the Restricted Homes as part of the larger Development, and sell the Restricted Homes constructed on the Property to eligible homebuyers at an affordable price. Concurrently with the sale of each of the Restricted Homes, HLT will enter into a ground lease ("Ground Lease") with each homebuyer in order to ensure long-term affordability of the Restricted Homes. D. This Agreement is entered into to provide assurance to City that the Restricted Homes shall comply with the requirements of the Code and the conditions of approval for the Southeast Estates Subdivision. NOW, THEREFORE, the Parties agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the meanings set forth below. Additional terms are defined in the Recitals and the text of this Agreement. (a) "Affordable Purchase Price" means a home purchase price resulting in an average monthly housing payment (including mortgage loan principal and interest, mortgage insurance fees, property taxes and assessments, a reasonable allowance for property maintenance and repairs, homeowners insurance premiums, a reasonable utility allowance, and homeowners association dues, if any) which is affordable to households of Low to Moderate-Income, as determined using standard underwriting criteria in common use by Fannie Mae or the California Housing Finance Agency. (b) "Area Median Income" means the median household income, adjusted for household size, applicable to Sonoma County, California as published periodically by the State Department of Housing and Community Development in the California Code of Regulations, Title 25, Section 6932 pursuant to California Health and Safety Code Section 50093(c) (or successor provision). (c) "Eligible Buyer" means a household of Low- to Moderate— Income, as applicable, which the City has determined meets the eligibility requirements for purchase of a Restricted Home. (d) "Deed of Trust" means the deed of trust, dated as of the date hereof, executed by HLT as Trustor for the benefit of City which secures HLT's performance under this Agreement, and which will be recorded in the Official Records substantially concurrently herewith. (e) "Low-Income" means an annual income which does not exceed eighty percent (80%) of the Area Median Income adjusted for household size. Resolution Exhibit B (f) "Median-Income" means an annual income which does not exceed one hundred percent (100%) of the Area Median Income, adjusted for household size. (g) "Moderate-Income" means an annual income which does not exceed one hundred twenty percent (120%) of the Area Median Income, adjusted for household size. (h) "Maximum Initial Sales Price" means the initial Affordable Purchase Price for a Home as determined by City. 2. Satisfaction of Affordable Housing Obligation. HLT agrees that it shall enter into a Construction and Resale Agreement with Subdivider pursuant to which Subdivider will construct four (4) Restricted Homes on the Property and sell two (2) Restricted Homes at an Affordable Purchase Price to an Eligible Buyer of Median-Income and two (2) Restricted Homes at an Affordable Purchase Price to an Eligible Buyer of Moderate-Income, in accordance with income categories specified in Exhibit B. Concurrently with the sale of each Restricted Home, HLT shall require the homebuyer to execute a Ground Lease substantially in the form attached hereto as Exhibit C. Among other provisions, the Ground Lease will require each Restricted Home (i) to be used solely for residential purposes (ii) to be occupied as the homebuyer's principal residence, and (iii) to be permitted to be transferred only to HLT, another Eligible Buyer, or upon the death of the homebuyer, to the homebuyer's heirs who qualify as Low- Income, Median-Income or Moderate-Income, as applicable. HLT agrees that the intent of this Agreement and the Ground Lease is that the Restricted Homes shall be permanently affordable to Eligible Buyers of Low-Income to Moderate- Income, as applicable, and HLT agrees that resale of the Restricted Homes shall be so restricted pursuant to the Ground Lease. 3. Marketing and Sale to Eligible Buyers. HLT shall require Subdivider to sell the Restricted Homes developed on the Property at an Affordable Purchase Price as described in Section 4 to Eligible Buyers of Low-Income, Median- Income or Moderate-Income, as applicable, and in accordance with Exhibit B. Within the pool of eligible applicants, preferenceYis to be°+given tagpers'ans t have either live in =:_.,. % and`l'ave been Cityresidents for the.-paste3 continuous4 ears' or who have been employed.;.:i -- for the pasty3 years City shall cooperate with HLT to identify Eligible Buyers; however, HLT will have primary responsibility for marketing the Restricted Homes, finding qualified Eligible Buyers, and screening and selecting applicants. City shall have no obligation to pay costs related to marketing, sales efforts or real estate commissions. HLT agrees that it shall comply, and shall require Subdivider to comply, with applicable fair housing laws in the marketing and sale, as applicable, of the Restricted Homes. Resolution Exhibit B 4. Affordable Purchase Price. The Maximum Initial Sales Price for the -lomes is shown in Exhibit B attached hereto and incorporated herein. 5. City Review of Documents. Upon request, HLT agrees that it shall provide :he following to City: (a) the form of Purchase and Sale Agreement to be used for sale of the Restricted Homes, and (b) the form of Ground Lease to be executed by the homebuyers. 3. Compliance Reports, Inspections, Monitoring. Upon completion of construction of the Restricted Homes, and annually thereafter by no later than Bach anniversary of the Effective Date, upon City's request HLT shall submit to Thy a Compliance Report verifying HLT's compliance with this Agreement, and certified as correct by HLT under penalty of perjury. The Compliance Report shall be in such format as City may reasonably request and shall contain certifications regarding the eligibility of homebuyers and evidence of the homebuyer's and HLT's execution of the Ground Lease. HLT shall retain all records related to compliance with this Agreement, and shall make such records available to City or its designee for inspection and copying on five (5) business days' written notice. HLT shall permit City and its designees to inspect the Property to monitor compliance with this Agreement following two (2) business days' written notice. 7. Covenants Run with the Land. The covenants and conditions herein contained shall apply to and bind, during their respective periods of fee ownership, HLT and its heirs, executors, administrators, successors, transferees, and assignees having or acquiring any right, title or interest in or to any part of the Property and shall run with and burden such portions of the Property. This Agreement shall remain in effect in perpetuity unless released by City pursuant tc an instrument recorded in the Official Records. 8. Default and Remedies. Failure of HLT to cure any default in HLT's obligations under this Agreement within thirty (30) days after the delivery of a notice of default from the City will constitute an Event of Default under this Agreement. In addition to remedies set forth in this Agreement, the City may exercise any and all remedies available under law or in equity, including but not limited to the exercise of City's remedies under the Deed of Trust, and the exercise of City's Option (as described in Section 10 below), instituting against HLT or other applicable parties, a civil action for declaratory relief, injunction or any other equitable relief, or relief at law, including without limitation an action to rescind a transaction and/or to require repayment of any funds received in connection with such a violation. 9. Option to Purchase, Enter and Possess. City shall have the right at its option to purchase, enter and take possession of the Property or any portion thereof owned by HLT with all improvements thereon (the "Option"). if. at or Resolution Exhibit B after the initial sale of the Restricted Homes to Eligible Buyers, the Restricted Homes are sold to persons who do not qualify as Eligible Buyers. In such event City shall have an option to purchase any such Restricted Homes at the Affordable Purchase Price as determined pursuant to this Agreement, or the City may pursue any remedies it may have under this Agreement, the Deed of Trust or under law or in equity. To exercise the Option, City shall pay to HLT cash in an amount equal to: (i) The fair market value of the Property at the time of exercise of the Option; less (ii) Any gains or income withdrawn or made by HLT from the applicable portion of the Property ; less (iii) The value of any liens or encumbrances on the applicable portion of the Property which the City assumes or takes subject to; less (iv) Any damages to which the City is entitled under this Agreement by reason of HLT's default. In order to exercise the Option, the City shall give HLT notice of such exercise, and HLT shall, within thirty (30) days after receipt of such notice, provide the City with a summary of all of HLT's costs incurred as described in this Section. Within thirty (30) days of the City's receipt of such summary, the City shall pay into an escrow established for such purpose cash in the amount of all sums owing pursuant to this Section 10, and HLT shall execute and deposit into such escrow a grant deed transferring to the City all of HLT's interest in the Property, or portion thereof, as applicable and the improvements located thereon. If by , 201_ , some but not all of the Restricted Homes have been constructed and sold to Eligible Buyers, the City's Option shall not apply to any of the Restricted Homes that have been sold in compliance with the requirements of this Agreement. 10. Mortgagee Protection. The City's rights pursuant to Section 9 shall not defeat, limit or render invalid any mortgage or deed of trust recorded against the Property or any portion thereof, including without limitation, any Restricted Home. Any conveyance of the Property to the City pursuant to Section 9 shall be subject to mortgages and deeds of trust permitted by this Agreement. 11. Remedies Cumulative. No right, power, or remedy specified in this Agreement is intended to be exclusive of any other right, power, or remedy, and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy available to the City under law or in equity. Neither the failure nor any delay on the part of the City to exercise any such rights, powers or remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such right, power or remedy preclude any Resolution Exhibit B other or further exercise of such right, power or remedy, or any other right, power or remedy. 12. Attorneys' Fees and Costs. The City shall be entitled to receive from HLT or any person violating the requirements of this Agreement, in addition to any remedy otherwise available under this Agreement or at law or equity, whether or not litigation is instituted, the costs of enforcing this Agreement, including without limitation reasonable attorneys' fees and the costs of City staff time. In any dispute arising in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees. 13. Appointment of Other Agencies. In its sole discretion, the City may designate, appoint or contract with any other person, public agency or public or private entity to perform some or all of the City's obligations under this Agreement. 14. Hold Harmless. HLT agrees to indemnify, defend (with counsel approved by the City) and hold harmless City and its elected and appointed officials, officers, employees, representatives and agents (all of the foregoing, collectively the "Indemnitees") from and against all liability, loss, cost, claim, demand, action, suit, legal or administrative proceeding, penalty, deficiency, fine, damage and expense (including, without limitation, reasonable attorney's fees and costs of litigation) (all of the foregoing, collectively hereinafter "Claims") arising or allegedly arising out of or relating in any manner to the Project, the Property, or HLT's performance or nonperformance under this Agreement, except to the extent arising from the gross negligence or willful misconduct of the City. The provisions of this section shall survive the expiration or other termination of this Agreement or any release of part or all of the Property from the burdens of this Agreement. 15. Insurance Requirements. HLT shall obtain and maintain at HLT's expense, Commercial General Liability, naming Indemnitees as additional insureds with aggregate limits of not less than Two Million Dollars ($2,000,000) for bodily injury and death or property damage including coverage for contractual liability and premises operations, purchased from an insurance company duly licensed to issue such insurance in the State of California with a current Best's Key Rating of not less than A-V, such insurance shall be evidenced by an endorsement which so provides and delivered to the City prior to the Effective Date. 16. Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to the party to receive such notice at the addresses set forth below: Resolution Exhibit B City: City of ADDRESS , CA 95448 Attn: City Clerk H LT: Housing Land Trust of Sonoma County P.O. Box 5431 Petaluma, CA 94955-5431 Attn: Executive Director Any party may change the address to which notices are to be sent by notifying the other parties of the new address, in the manner set forth above. 17. Integrated Agreement; Amendments. This Agreement, together with the exhibits hereto, the Performance Deed of Trust and exhibits thereto, and that certain August 2014 Letter of Understanding executed by and among City, HLT and other parties constitutes the entire Agreement between the Parties with respect to the subject matter hereof. No modification of or amendment to this Agreement shall be binding unless reduced to writing and signed by the Parties. The City Manager or his or her designee shall have authority to approve or disapprove minor or technical amendments to this Agreement on behalf of the City. 18. Subordination; Execution of Riders for the Benefit of Mortgage Lenders. City agrees that if required in order to assist Eligible Buyers to secure purchase money financing for the acquisition of a Home, the City will enter into a subordination agreement with a purchase money lender to subordinate this Agreement under such terms as the City and the purchase money lender shall negotiate provided that City is granted reasonable notice and cure rights under the first mortgage. The City further agrees that if City succeeds to the interest of HLT under the Ground Lease applicable to any one or more Restricted Homes pursuant to the exercise of City's remedies under this Agreement or the Deed of Trust, the City agrees that it shall recognize the Lessee under the Ground Lease and shall comply with the requirements of Fannie Mae Form 2100 (3/06) and Fannie Mae Announcement 06-03 or similar successor policy, as such documents may be modified or amended. 19. Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. Resolution Exhibit B 20. Further Assurances; Action by the City. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be iecessary to carry out the intent of this Agreement. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or -equest by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Vianager or by any person who shall have been designated by the City Manager, without further approval by the City Council unless the City Manager determines n his or her discretion that such action requires such approval. 21. Governing Law; Venue. This Agreement shall be construed and enforced n accordance with the laws of the State of California without regard to principles Df conflicts of law. The Parties consent to the jurisdiction of any federal or state bourt in the jurisdiction in which the Property is located (the "Property Jurisdiction"). Borrower agrees that any controversy arising under or in relation to this Agreement shall be litigated exclusively in courts having jurisdiction in the Property Jurisdiction. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise. 22. No Waiver. Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of HLT or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to HLT to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by HLT shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City 's written consent to future waivers. 23. Headings. The titles of the sections and subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions. 24. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. 25. Severability. If any provision contained in this Agreement is to be held by a court of competent jurisdiction to be void or unenforceable the remaining portions of this Agreement shall remain in full force and effect. 26. Exhibits. The following exhibits attached to this Agreement are hereby incorporated herein by reference: Resolution Exhibit B Exhibit A Legal Description of the Property Exhibit B Maximum Homebuyer Income Level; Unit Size and Bedroom Count; Maximum Initial Sales Price Exhibit C Form of Ground Lease (SIGNATURES ON FOLLOWING PAGE; SIGNATURES MUST BE NOTARIZED) Resolution Exhibit B IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. HLT: Housing Land Trust of Sonoma County, A nonprofit public benefit corporation By: Its: CITY : City of , a California municipal corporation By: , City Manager ATTEST: , City Clerk APPROVED AS TO FORM: By: , City Attorney Resolution Exhibit B State of California ) ) County of Sonoma ) On , 20 , before me, , a Notary Public, personally appeared , who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) Notary Public State of California ) ) County of Sonoma ) On , 20 , before me, , a Notary Public, personally appeared , who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) Notary Public Resolution Exhibit B Exhibit A LEGAL DESCRIPTION OF THE PROPERTY Real property in the City of , County of Sonoma, State of California, described as follows: Lots ,_, and , as shown upon the map entitled ", filed , 200_ in Book of Maps Pages Sonoma County Records. APN: Resolution Exhibit B Exhibit B Unit Income Classification Lot Nos. Median and Moderate 53, 54, 55 and 56 Designation of Plans and Specifications for each Unit Lot No. Plans & Specifications Unit Square No. of Feet Bedrooms 53 SE Medium Density Conventional Duet 1412 3 Plan 5 54 SE Medium Density Conventional Duet 1214 2 Plan 4 55 SE Medium Density Conventional Duet 1214 2 Plan 4 56 SE Medium Density Conventional Duet 1412 3 Plan 5 Sales Price of Below Market Rate Units Two (2) Units . $300,000 Two (2) Units $350,000. Resolution Exhibit C RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928-2486 (Space Above This Line for Recorder's Use Only) [Exempt from recording fee per Gov.Code§27383] AFFORDABLE HOUSING COVENANT This Affordable Housing Covenant(the "Covenant") is entered into as of this day of , 2018, by and between the CITY OF ROHNERT PARK, a municipal corporation (the "City ") and Penn Grove Mountain, LLC a California limited liability company(the "Developer"). Recitals A. Developer is the owner of that certain real property in the City of Rohnert Park, County of Sonoma, Assessor's Parcel Number 047-111-058, also known as Parcel D, as shown on the Final Map for the Southeast Estates Subdivision recorded on October 25, 2016, as document number 2016-054215 in the Official Records of the County of Sonoma, State of California ("Official Records"), in Book 781 of Maps, Pages 31- 38, and more particularly described in Exhibit A attached hereto (the "Site"). Developer desires to construct a thirty-six (36) unit rental apartment development on the Site, which development was approved by City as the Final Development Plan—Southeast Area, City Council Resolution No. 2010-137 (the "Project"), and amended by Resolution No. 2014-165. B. Rohnert Park Municipal Code section 17.07.020(N) sets forth certain inclusionary requirements for residential developments. Pursuant to section 17.07.020(N)(4)(a)(1)(i), at least fifteen percent of all new dwelling units in a rental housing unit must be made affordable to very low- and low-income households. C. The Development Agreement by and between the City and the Developer requires that the Developer comply with the inclusionary obligations of the Municipal Code and develop a 36 unit apartment complex with units affordable to very low-and low-income households. D. Developer and City desire to set forth Developer's obligations to provide affordable housing in a recorded document. Terms NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein,the City and Developer agree as follows: 1 1. Use of the Site. Developer hereby covenants and agrees that during the term set forth in Section 6 below, Developer shall use the Site in compliance with all of the following: 1.1. Development. Developer shall construct the Project on the Site. As described below in section 1.2, thirty-six (36) units in the Project shall be restricted to households at the income levels set forth herein (the "Affordable Units"). 1.2. Rent and Income Restrictions. (a) At least eighteen (18) of the Affordable'Units shall be rent restricted and occupied by a household whose income does notexeeed fifty percent (50%) of the area median income as promulgated by the United`States Department of Housing and Urban Development ("HUD") in accordance,__with Califori& Health & Safety Code Section 50093 ("Area Median Income")::-!4/the event that HUD ceases promulgating such income determinations for a period`4of at least 18 months,the:;parties shall substitute a standard reasonably similar with respect to methods,of calculation to that published by HUD in order to determine Area Median%'Income. The monthly 'rent, including a reasonable utility allowance,,,may not exceed one-tyelfth (1/12th) of thirty percent(30%) of the stated maximum annual='household inc?In`e;;=applicable to such Affordable Unit, adjusted for household size. ` ' >>_ (b) The remaining eighteen (18)IAffodable`Un'its shall be rent restricted and occupied by a household whose income does;-not exceed sixty percent (80%) of Area Median Incoiiie.;'The mthly rent,4cltiding a reasonable utility allowance, may not exceed one-twelfth, (1/12th),tof thirty (30%) of the stated maximum annual household income,applicab etp,such Affordable Unit, adjusted for household size. �(c)�° ,; Affordable;Units shal1° be comparable in number of bedrooms, exterior iia pearance and overall fq ality of construction to market rate units in the Project. ma .,. Affordable Units shall-be dispersed throughout the Project. '\(d) The maximum size-of a household occupying an Affordable Unit shall be two (2).‘„person per bedroom plus one (1) additional person. This standard may be modified, as.necessary, t comply with any occupancy standards that may now or in the future be established-°by_,the California Department of Fair Employment and Housing ("DFEH") in its guidelines on residential occupancy. (e) Developer may not rent an Affordable Unit to a prospective tenant unless and until the Agency or any public agency, local housing authority or non-profit housing developer chosen by City in its sole discretion (the "Certifying Agency") certifies the tenant for compliance with the requirements of this section. Developer shall contract with the Certifying Agency to perform such certifications. Developer shall be required to reimburse the Certifying Agency for the costs of this service. For each prospective tenant, Developer shall provide to City and Certifying Agency, on a form to be provided by City, the information required for the Certifying Agency to make the required certification. The form shall include, at a minimum, the following information regarding the 2 prospective tenant: (i) the number of persons proposing to occupy the Affordable Unit; (ii) gross income per year; (iii) sources of income; (iv) method of verification of income; (v) current address; and (vi) place of employment. Following initial rent-up, Developer shall submit annually the reports listed in section 1.4. (f) Occupancy of the Affordable Units shall be continuous, subject only to brief periods of vacancy as reasonable to maintain and affirmatively market the Affordable Units between periods of tenancy. 1.3. Marketing and Leasing Program. To the extent permitted by law, Developer shall lesign a marketing and leasing program that gives preference in the rental of Affordable Units to )ersons and households who meet the following criteria: (1) persons who live and work in Zohnert Park; (2) persons who live in Rohnert Park; (3)persons who work in Rohnert Park; (4) ill others. All prospective tenants must still meet,thetinconie restrictions described above in section 1.2. The marketing and leasing program snail be subject to the approval of the City prior :o rent-up. However, the selection of tenants isrthe-,responsibility ofDeveloper. 1.4. Reporting Requirements. Annuatreports must be submittedto City by July 31st each year, commencing after the first anniversary Of the date of completion Oft btistruction of the Project. The reports, at a minimum;.shall include: (a) The number of pe`tsorislper-Affordable Unit (b) Tenant's name and Affordable Unit occupied (c) Initial occupancy date (d) 'Rent pa d°per month` F„,. (e) Gross incone,per year apt:income category (f) Percent of rent paid in relation to income (g) Sources of income (h) Method of verification of income (i) ` 'Address prior to moving'into the Project (j) Tenants place`of employment (k) Address of Affordable Unit and unit type ((1) Status .o program.including any problems experienced during the =s. reporting period Upon request;;annual reports shall be accompanied by copies of the documents used in 7eport preparation. City may-from time to time during the term of this Covenant request additional or different information and Developer shall promptly supply such information in the reports required hereunder. City, at its discretion, may designate the form on which the information shall be supplied to the City. Upon request for examination by the City, Developer it any time during normal business hours shall make available, at the Project or another location within the City of Rohnert Park, all of Developer's records with respect to all matters covered by this Covenant. Developer shall permit the City to audit, examine and make excerpts or transcripts from these records. 1.5. Marketing Reports. Within ten (10) days of City's request, Developer shall deliver to City marketing and leasing information, schedules and reports for the Affordable Units in form and substance reasonably acceptable to the City. 1.6. Verification of Citizenship or Qualified Alien Status. Developer shall verify the citizenship or qualified alien status of all adult tenants and all adult applicants for tenancy as required under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law No. 104-193, 8 U.S.C. §1621). On an annual basis, Developer shall verify the citizenship or qualified alien status of tenants at the time of the annual income recertification. Developer shall verify the citizenship or qualified alien status by causing the tenant or applicants for tenancy 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 retained by the Developer and shall be disclosed to the'City upon,request. 1.7. Restrictions on Rental. Developersliall not rent an Affordable Unit to any of the following: (a) Any officer, shareholder''`of" employee: of Develdpo M_or any Family Member(defined below) of any officer, shareholder,orr'employee of Developer. (b) Any member ofktl e Rohnert Park City council or any member of any City Board or Commission. *ft (c) Any.-I %: _employee,E,who .exercises any `function or responsibility in connection with the Site or-who has, or whose Family;Member (defined below) has, an economic interests in the Site pursuant,;.;;t =the provisions of the Political Reform Act, Government Code„section,$7100 et seq. In this subsection-17 `'Family.Member” shall mean the spouse or child of 4tlie,individual at issue or the indiviatak or his or her spouse's parent, grandparent, brother, sister, auntncle,niece or nephew. 2. Restrictions on Transfer:` 2.1. No voluntary orcin oluntary successor in interest of Developer shall acquire all or any portion of Developers interest in the Site except as expressly set forth herein. It is hereby expressly stipulated and agreed that any assignment, sale, transfer or other disposition of Developer's interest in the Site, or any portion(s)thereof or interest(s) therein, in violation of this Section 2 shall be null, void and without effect and shall be ineffective to relieve Developer of its obligations under this Covenant. Upon any assignment, sale, transfer or other disposition of Developer's interest in the Site that complies with the requirements of this Section 2, Developer shall be fully released from its obligations hereunder to the extent such obligations have been fully assumed in writing by the transferee of Developer's interest in the Site pursuant to an assignment and assumption agreement in a form reasonably acceptable to the City's legal counsel. No later than the date the assignment becomes effective, Developer shall deliver to the City a fully executed counterpart of the assignment and assumption agreement. Developer shall request approval by written notice at least sixty(60) days prior to any proposed assignment, sale,transfer 4 or other disposition of Developer's interest in the Site or any portion(s) thereof or interest(s) therein. 2.2. Developer shall not assign, sell or transfer Developer's interest in the Site, or any portion(s) thereof, or interest(s) therein without the prior written approval of the City Manager, or his or her designee, which approval shall not be unreasonably withheld or delayed, and shall be granted upon City's receipt of evidence acceptable to the City that the following conditions have been satisfied: (a) Developer is not in default hereunder orrthe purchaser or assignee agrees to cure any defaults of Developer to the reasonable satisfaction of the City; (b) The continued operation of the Projec"tshall comply with the provisions of this Covenant; j`ar , (c) Either (i)the purchaser o assignee or its site,manager manager has at least three year's experience in the ownership, .;operation and management:of similar size rental housing projects, and at least one years, experience in the ownership, operation and management of rental housing projects containing JAW-market-rate,Jmits, without an) record of material violationsof discriminationrestrictions or other state orfederal laws of regulations or local governmentaforequirements'applicable to such projects, or (ii)the purchaser or assignee agrees tojetain a site management firm with the experience anc record described in subclause (i).,above;°or"(iii) Developer or its management compan} will continue to,,manage the Project for at least-�.one year following such transfer anc during such period wilt provide ta;ining::..to°the ,transferee and its manager in the responsibilities,relating toti e Affordable:Units; `'''`M' (d) The person or entity whichls to acquire the Project does not have pendin€ againa'trand does notslave a history of significant and material building code violation: or compIaints.5concerning�the mainhance, upkeep, operation and regulatory agreemen ` compliance of any'of its projects as identified by any local, state or federal regulator) agencies; and kc,) , The proposed purchaser or assignee enters into a written assignment an( assumption.:agreement iirform and content reasonably satisfactory to City's legal counsel and, if requestedby the ;Cjty, an opinion of such purchaser or assignee's counsel to the effect that this Covenant.is a valid, binding and enforceable obligations of such purchase] Cif`.; or assignee, subject t bankruptcy and other standard limitations affecting creditor': rights. 2.3. Notwithstanding any other provision of this Covenant to the contrary, Cit' approval of an assignment, sale or transfer of Developer's interest in the Site shall not be require( in connection with any of the following: (a) The granting of permits to facilitate development of the Project; and S (b) The rental, in the ordinary course of business, of the Affordable Units within the Project, provided such rental shall be in accordance with the terms of this Covenant. 3. 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, marital status, sexual orientation, age, pregnancy, disability, family composition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site or in the participation or benefits resulting from any program or activity related to the Project, nor shall the Developer itself"or any person claiming under or through it establish or permit any such practice or practicesoAi discrimination or segregation with reference to the selection, location, number, use or occupancy ofetenants, lessees or vendees in the Site or the Project. , 4. Maintenance and Management. Developer shall maintain in accordance with the Maintenance Standa0ds (as hereinafter defined) the private improvementsnand_public improvements and landscaping(collectively, the "Improvements") to the property line o the, Site. Theimprovements shall include, but not be limited to, buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping, architectural elements identifying the Project an&any and all tither improvements on the Site and in the public right-of-wayto the properhy`:line of theSite. To accomplish the maintenance, Developer shall either°estaffoncntract withnnd hire"licensed and qualified personnel to perform the maintenance work; including the provisiWlabor, equipment, materials, support facilities, and any and all other items necessary to comply,with the requirements of this Covenant. The maintenance covenants and obligations set forte this Section 4 shall remain in effect for the period of time specified in Si etioh 6 below: 4.1. The folly wing standards (collectively, "Maintenance Standards") shall be complied with by Developer and its``'rtiaintenance staff, contractors and subcontractors but do not require extraordinary expenditures or reconstruction after condemnation or the occurrence of a substantial casualty event: (a) andscape-,anaintenance shall include: watering/irrigation; fertilization; mowing; edging;ttrimiriing of grass; tree and shrub pruning; trimming and shaping of trees and shrubs t4,,maintain a healthy, natural appearance, safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. (b) Clean-up maintenance shall include: maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the 6 maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. (c) All maintenance work shall conform to all applicable federal and state Occupation Safety and Health Act standards and regulations for the performance of maintenance. (d) Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied in strict accordance with all governmental requirements. Precautionary measures shall be employed recognizing that all areas are open to public access. / (e) The Improvements shall be maintained.-in conformance with the custom and practice generally applicable to comparab`l apartrne it,rental projects located within Sonoma County, California. The public riglt-of--way improvements to the property line of the Site shall be maintained as required`-`=by this Section 4 1;in good condition and in accordance with the custom and practice generally applicable4o,public rights-of-way t within the City of Rohnert Park. = 4.2. If Developer does not_maintain the Improvements on the Site to,the property line of the Site in the manner set forth hereirrand,in accordance with the Maintenance Standards, City shall have the right to maintain such'privateand/or public".improvements, or to contract for the correction of such deficiencies, after written notice,,to Developef. However, prior to taking any such action, City agrees to notify Developer in writ r gt if the condition of said Improvements does not conform to,the-Maintenance Standards 046-specify the deficiencies and the actions required to be taken;.-4by Developer to cure;-the'deficienr e. Upon notification of any maintenance deficiency,Developer,shall have thirty(30) days within which to correct,remedy or cure the deficiency. If the written-notification stases,that the problem is urgent and relates to the public health ndsafety, then Developer-shallhave4enty-four(24)hours to rectify the problem. ,In the event Develiiper fai-lsjo correct, remedy, or cure or has not commenced correcting, remedying-Or curing such iriaintenance;deficiency after notification and after expiration of any applicable cure'period, then City,shall h ve.the right to maintain such Improvements. Developer agrees to paY°CitY.0 on demand'"all charges and costs incurred by City for such maintenance. Developer acknowledges and agrees that the City may pursue any and all remedies available in law or equity in theyevent of a bt`each of the maintenance obligations and covenants set forth herein. 5. No Impairment of Lien. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Covenant 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. 7 6. Duration. The covenants set forth herein shall remain in effect for fifty-five (55) years from the date on which all Affordable Units are issued Certificates of Occupancy. 7. Successors and Assigns. The covenants contained in this Covenant shall inure to the benefit of the City and its successors and assigns and shall be binding upon Developer and any successor in interest to Developer's interest in the Site or the Project or any part thereof. 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 tfte:,,(4 is or remains an owner of any land or interest therein to which such covenants relate. Thetty and its successors and assigns, in the event of any breach of any such covenants, shall have they"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. 8. Default. 4.4 8.1. Any failure by Developer to perform'anytern3 or provision of this_Covenant shall constitute an "Event of Default" if Developer does not cure such failure within thirty (30) days following written notice of default froinCity or, if such failure is not of a nature which can be cured within such thirty (30) day period;.,the Developer does'not within such thirty (30) day period commence substantial efforts to_,cure such failure, orZ!thereafter does not within a reasonable time prosecute,to'tcompletion withv diligence/and'continuity the curing of such failure. Upon the occurrence of an Everit,of Default;,tlie6""City shall be entitled to the following, in addition to all other remedies provided at law o'ijin equity: (a)` =.. To compe°specific p 7, performance by Developer of its obligations under this Caverfaiit;it.being recognized thatch beneficiaries of Developer's obligations hereunder cannot be ade uatei compensated bymonetarydamages in the event of Developer's � g default. To the extent permissible under laws and regulations protecting individual confidentiality, to have Ticeess to, to inspect, and to make copies and to audit all books and records'Of Developeiiertaining to the Project. (c) To ;cause'Developer to pay to the City, if the cure period has been exceeded and no cure has been achieved, as a penalty, an amount equal to all rent received by Developer with respect to Affordable Units, if units are knowingly or grossly negligently rented to persons who do not comply with the requirements of such units. (d) To conduct an evaluation of, and direct Developer with respect to, the management and operation of the Project. The expenses of the City of any consultants associated with such evaluation and direction shall be reimbursed by Developer. Developer shall follow all such directives, which may, at the option of the City, include replacing existing management with new management. In the event such default includes the failure of the Developer to make any required payment to the City in a timely manner, 8 or the imminent closure of the Project, the City may at its sole discretion select the new management. The City may retain attorneys and consultants to assist in such evaluation and the Developer shall pay the reasonable fees and expenses of such attorneys and consultants and any other reasonable expenses incurred by the City in that connection. 8.2. Any notice of default given hereunder shall specify in detail the nature of the failure in performance which the City claims constitutes the Event of Default and the manner in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Covenant. During the time periods herein specified for cure of a failure to perform, the Developer shall not be considered to be in default of this Covenant for any purposes. 8.3. Any failure or delay by the 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 the City of its right to institute and maiiitain any actions or proceedings which it may deem necessary to protect, assert or-enforce any such Tights or remedies. 9. Notices. -J f All notices required herein shall be sent by�y,certified mail, return receipt requested and shall be effective as of the date received or the date delivery was refused asindicated on the return receipt as follows: To the Developer: Penn Grove Mountain LLC PO Box 23=51` Healdsburg CA95448 ....., To theCity: :,;,:City of RohrirtPPark'' `• Development Services 130 Avram Avenue Rohnert Park, CA 94928 10. Severability:., ;, In the event thati;any°limitation, condition, restriction, covenant or provision in this Covenant is held to be invalid, void or unenforceable by any court of competent jurisdiction, the remaining portions of this Covenant shall, nevertheless, be and remain in full force and effect. 11. Entire Agreement. This Covenant constitutes the entire agreement between the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. 9 12. Applicable Law. This Covenant shall be governed by the laws of the State of California. IN WITNESS WHEREOF, City and Developer have caused this Covenant to be executed on their behalf by their respective officers thereunto duly authorized. "City" CITY OF ROHNERT PARK, a municipal corporation By: Name: Its: City Manager Authorized by City Council Resolution 2018- approved on November 13,2018 Attest: C410116rk Approvekaskto form: City Attorney "Developer:ketin4G:rove Mountain LLC:"' *.` By: Ben vanZiitp4n, Managergh .0-;; Ido„- 10 Resolution Exhibit C STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , 20_, before me, ,the undersigned,personally appeared , ( ) personally known to me ( ) 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 ) On , 20 , before me, ,the undersigned, personally appeared , ( ) personally known to me ( ) 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 ) On , 20 , before me, , the undersigned, personally appeared ( ) personally known to me ( ) proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) (is/are) subscribed to theithin 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. „F r WITNESS my hand and official seal: Signature 44t'. :3 NW 4=W.,.