HomeMy WebLinkAboutResolution 2020-030 N.C.S. 02/24/2020Resolution No. 2020-030 N.C.S.
of the City of Petaluma, California
RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL APPROVING
A RESIDENTIAL DENSITY BONUS HOUSING AGREEMENT
FOR THE CORONA STATION RESIDENTIAL PROJECT
LOCATED AT 890 NORTH MCDOWELL BOULEVARD
APN: 137-061-019
FILE NO. PIMA 18-0006
WHEREAS, Todd Kurtin with Lomas Properties LLC submitted an application for the
Corona Station Residential Project, including a Zoning Text Amendment, Development
Agreement, Density Bonus and Development Concession/Incentive, Tentative Subdivision Map,
Conditional Use Permit and Site Plan and Architectural Review for a 110 unit residential project
within the MU1B zone with Flood Plain -Combining (FP -C) Overlay, located on a 6.5 -acre site at
890 North McDowell Boulevard (APN 137-061-019) (the "Project"); and
WHEREAS, the Planning Commission held a duly noticed public hearing to consider
the Project on November 12, 2019, at which time all interested parties had the opportunity to be
heard; and
WHEREAS, public notice of the Planning Commission hearing was published in the
Petaluma Argus -Courier, mailed to residents and occupants within 1,000 feet of the Project site,
and posted on-site in compliance with state and local law; and
WHEREAS, at said hearing, the Planning Commission considered the staff report
dated
November 12, 2019, analyzing the Project, including the Mitigated Negative Declaration and
continued the item to a date certain of November 19, 2019; and
WHEREAS, the Planning Commission found the overall project inconsistent with key
policies in the General Plan and Station Area Master Plan calling for a mixed use transit
oriented development to enhance and facilitate the second SMART station and therefore
approved Resolution No. 2019-19 recommending denial of the density bonus; and
WHEREAS, Petaluma's Implementing Zoning Ordinance Chapter 27 (Residential
Density Bonus) provides for provision of a local Residential Density Bonus and Development
Incentives/Concessions program consistent with California state density bonus law; and
WHEREAS, the intent of IZO Chapter 27 is to provide incentives for the production of
housing for very low, low, moderate income or senior housing in accordance with California
state law and facilitate the development of affordable housing consistent with the goals,
policies, and programs of the City's Housing Element; and
WHEREAS, the project applicant submitted a request for a Residential Density Bonus
and a Development Incentive/Concession as allowed under IZO Chapter 27; and
Resolution No. 2020-030 N.C.S. Page 1
WHEREAS, the project proposes to provide eleven on-site multi -family affordable
units available to moderate income households (approximately 10 percent of the proposed
units) and six units available to low income households; and
WHEREAS, IZO Section 27.030 states that the City shall grant either a Density Bonus
or a Density Bonus with a Concession or Incentive to an applicant who agrees to provide at
least ten percent of the total units of the housing development as restricted affordable units
affordable to a moderate income household; and
WHEREAS, consistent with IZO Section 27.040.D, the inclusion of eleven on-site
units affordable to moderate income households as part of the subject project entitles the project
to a residential density bonus of up to 5 percent above the base maximum density of 30.0 units
per acre; and
WHEREAS, IZO Section 27.070 states that a housing development that provides at
least ten percent of the units affordable to moderate income households shall entitle the
developer to one concession or incentive; and
WHEREAS, IZO Section 27.070 further provides that the City may grant a waiver or
modification of site development standards to increase maximum building height; and
WHEREAS, consistent with IZO Sections 27.070 the applicant has requested a
development incentive to increase the maximum building height up to 34'-7", an increase of
approximately 4'-7" above the 30 -foot maximum building height allowed in the MU1B zoning
district; and
WHEREAS, the applicant has not requested an increase in density above the allowable
30 units per net acre allowed in the Mixed Use land use designation; and
WHEREAS, the increase in the maximum building height allows for a more dense
development pattern on the irregular shaped parcel and is not anticipated to have a specific
adverse impact upon the public health and safety or physical environment or any real property
that is listed on the California Register of Historic Resource, and is not contrary to state or
federal law; and
WHEREAS, IZO Section 27.070.0 states that the City shall not require a vehicular
parking ratio that exceeds one onsite parking space for each studio and one -bedroom unit, two
onsite parking spaces for each two and three bedroom units, and two and one-half onside
parking spaces for each four or more bedroom unit; and
WHEREAS, the project has been designed with 247 onsite parking spaces to satisfy
the maximum parking requirement as specified in IZO Section 27.070.C; and
WHEREAS, IZO Section 27.050 provides for development standards for affordable
units, all of which have been incorporated into the draft Density Bonus Housing Agreement for
the project; and
WHEREAS, Chapter 27.090 of the Implementing Zoning Ordinance requires
applicants for a Density Bonus, Incentive or Concession to enter into a Density Bonus Housing
Agreement with the City, approved by the City Council; and
Resolution No. 2020-030 N.C.S. Page 2
WHEREAS, Chapter 27.090 provides the requirements for a Density Bonus Housing
Agreement, which have been incorporated into the draft Density Bonus Housing Agreement for
the project.
WHEREAS, the City Council held duly noticed public hearings to consider the project
on January 27, 2020 and February 24, 2020 at which time they considered the Planning
Commission's recommendation and all interested parties had the opportunity to be heard.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL AS
FOLLOWS:
1. The foregoing recitals are true and correct and incorporated herein by reference.
2. Based on its review of the entire record herein, the City Council makes the following findings:
a. The Project is consistent with the General Plan 2025 Mixed Use land use designation in
that the Mixed Use designation provides for a robust mix of uses, including residential
at a density of up to 30 units per acre.
b. The Project is, for the reasons discussed in the November 12, 2019 Planning Commission
staff report, consistent with the following General Plan policies: Policy 1-P-1 (Range of
densities), I -P-2 (Efficient Land Use), Policy 1-P-6 (Encourage Mixed -Use
Development), Policy 2-P-5 (Character of Arterials), Policy 2-P-90 (Corona Rail
Station), Policy 4 -P -1.D (Creek Setbacks), Policy 4-P- (Street Trees) Policy 5-P-4
(Offsite Mobility Improvements), Policy 5-P-20 (Connections), Policy 5-P-23 (Pedestrian
Site Access), Policy 5-P-43 (Transit Oriented Development), Policy 5-P-50 (SMART
Corridor) and Housing Element Policy 1.1 (Encourage Residential Development), Policy
1.2 (Optimize Development Potential), Policy 2.2 (Flexibility), Program 3.1 (Code
Amendments), Policy 4.2 (Affordable Housing Production), and Program 4.3 (Onsite
Inclusionary).
c. The project is adjacent to the planned Corona Station SMART station and has therefore
reviewed for consistency with applicable provisions of the Station Area Master Plan
(SAMP). For the reasons discussed in the November 12, 2019 Planning Commission
staff report, the project is consistent with key recommendations from the SAMP in that
the project does not incorporate retail adjacent to the Corona Road Station, proposes
increased density and ground floor flex opportunities, presents a density within the
parameters of the underlying Mixed Use designation and in character with the
surrounding area, provides necessary land dedication and financial contribution to
develop the second station, and incorporates key connectivity enhancements in the
immediate vicinity of the future station.
d. The Project is consistent with all development standards of the MU1B zoning district,
including but not limited to, those pertaining to uses, setbacks, building height, floor
area ratio, and parking.
e. The Project is consistent with all requirements for a Density Bonus with a Concession as
outlined in IZO Chapter 27 (Residential Density Bonus) and California state density bonus
law.
Resolution No. 2020-030 N.C.S. Page 3
An Initial Study was prepared in compliance with the California Environmental Quality Act
for the proposed project, inclusive of the proposed zoning text amendments. It was
determined that the proposed project could result in potentially significant impacts related to
Air Quality, Biological Resources, Cultural Resources, Geology/Soils, Greenhouse Gas
Emissions, Hazards, Hydrology, Noise, and Utilities. However, the Initial Study found that
project impacts would be mitigated to a less -than -significant level through implementation of
recommended mitigation measures or through compliance with existing Municipal Code
requirements or City standards. The City Council approved Resolution No. 2020-029 N.C.S.
approving the Mitigated Negative Declaration and Mitigation Monitoring and Reporting
Program for the project.
4. Based on its review of the entire record herein, including the November 12, 2019 and
November 19, 2019 Planning Commission staff reports, the City Council January 27, 2020
and February 24, 2020 staff reports, all supporting, referenced, and incorporated documents,
and all comments received, the City Council hereby approves the Density Bonus Housing
Agreement attached as Exhibit 1 hereto and incorporated herein by reference.
Approval by the SMART Board and the City Council of an agreement between SMART and
the City obligating SMART to design and build a second Petaluma SMART station at the
corner of McDowell Boulevard and Corona Road shall be a condition precedent to this
resolution taking effect. Absent such approval by the SMART Board and the City Council,
this resolution shall be of no force or effect. In addition, this resolution will be of no force
and effect unless and until the Ordinance Upholding the Appeal Filed by Lomas -Corona
LLC, Overturning the Planning Commission's Denial, and Amending the Text of the
Implementing Zoning Ordinance, Ordinance 2300 N.C.S., Table 4.3, Ordinance 2721 N.C.S.
takes effect. Upon approval by the SMART Board and the City Council of an agreement
between SMART and the City obligating SMART to design and build a second Petaluma
SMART station at the corner of McDowell Boulevard and Corona Road, and upon Ordinance
2721 N.C.S taking effect, this resolution will take effect, without further action of the City
Council.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the ApprS �"edas to
Council of the City of Petaluma at a Regular meeting on the 241h day of February ! ��:
2020, by the following vote:
'ham/
City orney
AYES: Healy; Kearney; King; Miller
NOES: Mayor Barrett; Vice Mayor Fischer; McDonnell
ABSENT: None
ABSTAIN: None
ATTEST:
City Clerk
s
Mayor
Resolution No. 2020-030 N.C.S. Page 4
Exhibit 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Petaluma
11 English Street
Petaluma, CA 94952
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103,27383
Space above this line for Recorder's use.
APN: 137-061-019
AFFORDABLE HOUSING REGULATORY AGREEMENT
DECLARATION OF RESTRICTIVE COVENANTS
by and between
THE CITY OF PETALUMA
and
Lomas Corona Station LLC
Density Bonus Housing Agreement
Resolution No, 2020-030 N.C.S. Page 5
This Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants (this "Agreement") is entered into effective as of 120_
("Effective Date") by and between the City of Petaluma, a California municipal
corporation and charter city ("City") and Lomas Partners LLC, a California limited
liability company ("Developer"). The City and the Developer are collectively referred to
herein as the "Parties."
RECITALS
A. Developer is the owner of the real property located at 890 North McDowell
Boulevard in the City of Petaluma, California, known as Sonoma County Assessor's
Parcel No. 137-061-019, and more particularly described in Exhibit A attached hereto
(the "Property").
B. Developer intends to construct a residential development on the Property
consisting of 65 single family attached units and 45 single family detached units (the
"Project").
C. On November 12, 2019 and November 19, 2019, the Planning
Commission considered Developer's application for a density bonus and certain
incentives and concessions for the Project pursuant to the Density Bonus Statute and
Density Bonus Ordinance, and recommended that the City Council deny the granting of
a density bonus and certain incentives and concessions for the Project as outlined in
Planning Commission Resolution No. 2019-20.
D. On January 27, 2020 and February 24, 2020, the City Council considered
the Planning Commission's recommendation and the density bonus and incentives and
concession as requested by the Developer, and approved the grant of a density bonus
and incentives and concessions for the Project subject to subsequent approval of a
Conditional Use Permit and Site Plan and Architectural Review for the Project, and
conditioned upon the execution and recordation of this Agreement.
E. This Agreement implements California Government Code Section 65915
et seq. (the "Density Bonus Statute"), Chapter 27 of the City of Petaluma
Implementing Zoning Ordinance (the "Density Bonus Ordinance") and Section 3.040
of Chapter 3 of the City of Petaluma Implementing Zoning Ordinance (the "Inclusionary
Zoning Ordinance"). To satisfy the requirements of the Density Bonus Statute, the
Density Bonus Ordinance, and the Inclusionary Zoning Ordinance, Developer has
agreed to provide eleven (11) residential units in the Project as below market -rate units
that will be available for sale to, and occupancy by, Moderate -Income Households, and
six (6) units that will be available for sale to, and occupancy by, Low -Income
Households, at Affordable Sale Prices (as defined below) (collectively, the "BMR
Units").
F. Pursuant to the Density Bonus Ordinance and the Inclusionary Zoning
Ordinance, Developer is required to enter into and record this Agreement against the
Property for the benefit of City.
Resolution No. 2020-030 N.C.S. Page 6
G. The Parties intend the covenants set forth in this Agreement to run with
the land and to be binding on the Property, the Developer, and Developer's successors
and assigns.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows.
Incorporation of Recitals; Definitions.
1.1 Incorporation of Recitals; Acknowledgement. The Parties acknowledge
the truth of the foregoing Recitals which are hereby incorporated into this Agreement.
Developer acknowledges and agrees that the City has granted incentives and
concessions for the Project, including an increase in building height and use of a
reduced parking ratio for the Project, and that therefore, in addition to City's authority
under the Inclusionary Zoning Ordinance, the City has authority to impose sale price
and income eligibility requirements on the BMR Units pursuant to the Density Bonus
Statute and the Density Bonus Ordinance.
1.2 Definitions. The following terms shall have the meanings set forth in this
Section wherever used in this Agreement or the attached exhibits.
"Actual Household Size" means the actual number of persons in the applicable
household.
"Affordable Housing Cost" means a monthly obligation to pay mortgage
payments (principal and interest), property taxes, property insurance, mortgage
insurance, utilities, and homeowners' association dues (if applicable) in an aggregate
amount not greater than the following: (i) for units that are restricted for sale to
Moderate -Income Households - one -twelfth of thirty-five percent (35%) of one hundred
and ten percent (110%) of Area Median Income, adjusted for Assumed Household Size,
and (ii) for units that are restricted for sale to Low -Income Households - one -twelfth of
thirty percent (30%) of seventy percent (70%) of Area Median Income, adjusted for
Assumed Household Size. (Govt Code 65915(c)(2); Health & Safety Code 50052.5)
"Affordable Sales Price" means the maximum sales price for a BMR Unit as
determined by the City pursuant to Section 10 below that will result in an Affordable
Housing Cost for the homebuyer.
"Area Median Income" or "AMI" means the area median income for Sonoma
County, California, adjusted for Actual Household Size, as determined by the United
States Department of Housing and Urban Development ("HUD") and as published from
time to time by the State of California Department of Housing and Community
Development ("HCD") in Section 6932 of Title 25 of the California Code of Regulations
Resolution No. 2020-030 N.C.S. Page 7
or successor provision published pursuant to California Health and Safety Code Section
50093(c).
"Assumed Household Size" means a household of two persons for a one -
bedroom unit, three persons for a two-bedroom unit, and one additional person for each
additional bedroom.
"BMR Units" means the seventeen (17) units in the Project that are required to
be sold to Eligible Households at Affordable Sales Prices in accordance with this
Agreement.
"City Council" means the City Council of the City of Petaluma
"Claims" is defined in Section 17.
"Density Bonus Ordinance" means Chapter 27 of the City of Petaluma
Implementing Zoning Ordinance.
seq.
"Density Bonus Statute" means California Government Code Section 65915 et
"Effective Date" is the date set forth in the preamble to this Agreement.
"Eligible Household" means a household whose Gross Income does not
exceed the applicable household income limit for a BMR Unit as specified in this
Agreement and which otherwise qualifies to purchase a BMR Unit pursuant to this
Agreement.
"Gross Income" shall have the meaning set forth in Section 6914 of Title 25 of
the California Code of Regulations as such section may be revised from time to time.
"Implementing Zoning Ordinance" means City of Petaluma Ordinance No.
2300 N.C.S. as amended.
"Inclusionary Zoning Ordinance" means Section 3.040 of Chapter 3 of the City
of Petaluma Implementing Zoning Ordinance.
"Income Category" means the income category to be used to qualify Eligible
Households and determine the Affordable Sales Price for the BMR Units.
"Indemnitees" is defined in Section 17.
"Low -Income Household" means a household whose Gross Income does not
exceed the qualifying limit for lower income households as established and amended
from time to time by HUD pursuant to Section 8 of the United States Housing Act of
1937 and published by HCD in the California Code of Regulations pursuant to Health
and Safety Code Section 50079.5. In the event such limits are not published, the
income limit to qualify as a Low -Income Household shall be eighty percent (80%) of
Resolution No. 2020-030 N.C.S. Page 8
AMI, adjusted for Actual Household Size.
"Low -Income Units" means the six (6) BMR Units that are restricted for sale to
Low -Income Households pursuant to this Agreement.
"Moderate -Income Household" means a household whose Gross Income does
not exceed one hundred twenty percent (120%) of Area Median Income, adjusted for
actual household size.
"Moderate -Income Units" means the eleven (11) BMR Units that are restricted
for sale to Moderate -Income Households pursuant to this Agreement.
"Official Records" means the Official Records of the Sonoma County Recorder.
"Planning Commission" means the Planning Commission of the City of
Petaluma.
"Project" is defined in Recital B.
"Property" is defined in Recital A.
"Regulatory Agreement" is defined in Section 2.
"Resale Restriction Agreement" is defined in Section 2.
2. Conveyance to Housing Land Trust; Recordation of Regulatory Agreement. The
Parties agree that Developer may satisfy the requirements of the Density Bonus
Ordinance and the Inclusionary Zoning Ordinance by conveying the BMR Units to the
Housing Land Trust of Sonoma County, a California nonprofit public benefit corporation
("HLT"). HLT in turn, will be obligated to sell each BMR Unit to an Eligible Household at
an Affordable Sales Price, and concurrently with the sale of each BMR Unit, HLT and
the purchaser will be required to enter into and record (i) a ground lease of the land
underlying each BMR Unit, and (ii) a resale restriction agreement that restricts the future
resale price of the BMR Unit ("Resale Restriction Agreement"). To implement the
requirements of this Section, concurrently with, and as a condition to the conveyance of
the BMR Units to HLT, the City and HLT will enter into and record an Affordable
Housing Agreement and Declaration of Restrictive Covenants ("Regulatory
Agreement") substantially in the form attached hereto as Exhibit B.
3. Resale Restriction Agreement; Affordability Restrictions. Among other
provisions, the Regulatory Agreement will require HLT to sell each BMR Unit to an
Eligible Household at a price that does not exceed the Affordable Sales Price for such
unit as determined by City in accordance with this Agreement taking into consideration
the number of bedrooms in the BMR Unit and the Income Category for the BMR Unit,
and will require that each purchaser of a BMR Unit must execute and record a Resale
Restriction Agreement and a Performance Deed of Trust in forms approved by City.
Among other provisions, the Resale Restriction Agreement will require the purchaser of
Resolution No. 2020-030 N.C.S. Page 9
each BMR Unit to occupy such unit as their principal residence, will impose limits on
rental of the unit, and will restrict the future sale price of the unit. The Parties
acknowledge that pursuant to the Regulatory Agreement and the Resale Restriction
Agreement, the BMR Units will be subject to affordability restrictions in perpetuity.
4. Recordation; Reconveyance. This Agreement shall be recorded in the Official
Records promptly following execution by the Parties, but in all events prior to the
approval of the Conditional Use Permit or Site Plan and Architectural Review for the
Project, and shall remain in full force and effect until all of the BMR Units are sold to
HLT in accordance with Section 2 above, and a Regulatory Agreement in compliance
with the requirements of this Agreement has been executed by City and HLT and
recorded against all BMR Units. Upon sale of all of the BMR Units to HLT in
compliance with this Agreement and the recordation of the Regulatory Agreement, the
City shall record a release and reconveyance of this Agreement.
5. Number, Size, and Location of BMR Units. The seventeen (17) BMR Units shall
consist of the following:
(a) Two (2) 2 -bedroom units that will be sold at Affordable Sales Price for
occupancy by Eligible Households that qualify as Low -Income Households;
(b) Four (4) 3 -bedroom units that will be sold at Affordable Sales Price for
occupancy by Eligible Households that qualify as Low -Income Households;
(c) Three (3) 2 -bedroom units that will be sold at Affordable Sales Price for
occupancy by Eligible Households that qualify as Moderate -Income Households;
(d) Eight (8) 3 -bedroom units that will be sold at Affordable Sales Price for
occupancy by Eligible Households that qualify as Moderate -Income Households;
The location, type (number of bedrooms and bathrooms), square footage and
unit number of each BMR Unit shall be set forth in a Below -Market Rate Housing Plan
approved by City and recorded against the Property (the "BMR Plan"). In the event of
any inconsistency between the provisions of this Agreement and the provisions of the
BMR Plan, the provisions of this Agreement shall prevail.
6. Phasing. The BMR Units shall be constructed and sold to HLT concurrently with
or prior to the construction and sale of the market -rate units in the Project. All of the
BMR Units must have been sold to HLT in compliance with this Agreement by not later
than the date upon which fifty percent (50%) of the market -rate units have received
certificates of occupancy.
7. Desiqn; Amenities. The design, appearance, and general quality of the BMR
Units shall be comparable to that of the unrestricted residential units in the Project. The
BMR Units may have different interior finishes and features than market -rate units in the
Project so long as such finishes and features are durable, of good quality, compatible
with market -rate units, and consistent with contemporary standards for new housing.
Resolution No. 2020-030 N.C.S. Page 10
The BMR Units must contain a dishwasher, refrigerator, garbage disposal, cooking
facilities and laundry facilities. The BMR Units need not contain optional upgrades and
luxury items, and Developer may install such optional upgrades and luxury items in
market -rate units in the Project. The City shall have the right to inspect the BMR Units to
determine whether they have been constructed in accordance with this Section.
Residents of the BMR Units shall have access to all Project amenities and recreational
facilities available to occupants of the Project's market -rate units.
8. No Condominium Conversion. Neither Developer nor HLT, nor any successor in
interest shall be permitted to convert the BMR Units to condominium or cooperative
ownership or sell condominium or cooperative rights to the BMR Units. The restrictions
set forth in this Section shall be stated in the Regulatory Agreement and the Resale
Restriction Agreement.
9. Occupancy as Principal Residence; No Short -Term Rentals. The BMR Units
must be occupied as the principal residence of the owner of each BMR Unit. The
Resale Restriction Agreement will require purchasers of the BMR Units to sign a written
statement acknowledging their agreement that the BMR Unit must be occupied as the
household's principal residence, that the unit may not be rented or leased except as
allowed under the Resale Restriction Agreement, that the owner may not make the unit
available for short-term rental, and that the owner is required to annually sign a written
statement certifying compliance with all of the foregoing requirements.
10. Sale of BMR Units; Determination of Affordable Sales Price.
(a) Following conveyance of the BMR Units to HLT, the BMR Units may be
sold only to Eligible Households whose Gross Income is of the Income Category
applicable to the particular BMR Unit, i.e., the Low -Income Units may only be sold to
Low -Income Households, and the Moderate -Income Units may only be sold to
Moderate -Income Households.
(b) The sale price of each BMR Unit may not exceed the Affordable Sales
Price for a household of the Assumed Household Size and Income Category for the
applicable unit. Prior to conveyance of the BMR Units to HLT, Developer shall provide
not less than 90 days' written notice to City. HLT will market the BMR units as
described in Sections 3 and 4 of the Affordable Housing Agreement and Declaration of
Restrictive Covenants attached as Exhibit B to this agreement.
11. Compliance with Fair Housing Laws; Nondiscrimination. Developer shall comply
with all state and federal fair housing laws, rules, regulations and guidelines in the
marketing and rental of the units in the Project. Developer shall not restrict the rental,
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or
the Project, or any portion thereof, on the basis of race, color, religion, creed, sex,
sexual orientation, disability, marital status, ancestry, or national origin of any person.
Developer covenants for itself and all persons claiming under or through it, and this
Agreement is made and accepted upon and subject to the condition that there shall be
Resolution No. 2020-030 N.C.S. Page 11
no discrimination against or segregation of any person or group of persons on account
of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code,
as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph
(1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property or part thereof, nor shall Developer or any person claiming under or through
Developer establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of
purchasers, tenants, lessees, subtenants, sublessees or vendees in, of, or for the
Property or part thereof. Developer shall include such provision in all deeds, leases,
contracts and other instruments executed by Developer, and shall enforce the same
diligently and in good faith.
12. Effectiveness Succeeds Conveyance of Property. This Agreement shall remain
effective and fully binding regardless of any sale, assignment, transfer, or conveyance
of the Property or the Project or any part thereof or interest therein.
13. Binding Upon Successors; Covenants to Run with the Land. The City and the
Developer hereby declare their express intent that the covenants and restrictions set
forth in this Agreement shall run with the land and shall be binding upon all successors
in title to the Property, regardless of any sale, assignment, conveyance or transfer of the
Property, the Project or any part thereof or interest therein. Any successor -in -interest to
Developer, including without limitation any purchaser, transferee or lessee of the
Property or the Project (other than the tenants or purchasers of individual dwelling units
or commercial space within the Project) shall be subject to all of the duties and
obligations imposed hereby. Each and every contract, deed, ground lease or other
instrument affecting or conveying the Property or the Project or any part thereof, shall
conclusively be held to have been executed, delivered and accepted subject to the
covenants, restrictions, duties and obligations set forth herein, regardless of whether
such covenants, restrictions, duties and obligations are set forth in such contract, deed,
ground lease or other instrument. This Agreement shall bind any successor, heir or
assign of the Developer, whether a change in interest occurs voluntarily or involuntarily,
by operation of law or otherwise. Developer agrees for itself and its successors that in
the event that a court of competent jurisdiction determines that the covenants herein do
not run with the land, such covenants shall be enforced as equitable servitudes against
the Property and the Project in favor of City.
Without limiting the generality of the foregoing, Developer and City hereby declares their
understanding and intent that:
(a) The covenants and restrictions contained in this Agreement shall be
construed as covenants running with the land pursuant to California Civil Code
section 1468 and not as conditions which might result in forfeiture of title by
Developer;
Resolution No. 2020-030 N.C.S. Page 12
(b) The burden of the covenants and restrictions set forth in this Agreement
touch and concern the Property in that the Developer's legal interest in the
Property and all improvements thereon are rendered less valuable thereby;
(c) The benefit of the covenants and restrictions set forth in this Agreement
touch and concern the land by enhancing and increasing the enjoyment and use
of the Property by the purchasers of the BMR Units; and
(d) All covenants and restrictions contained herein without regard to technical
classification or designation shall be binding upon Developer and its successors
in interest for the benefit of the City, and such covenants and restrictions shall
run in favor of the City for the entire period during which such covenants and
restrictions shall be in force and effect, without regard to whether the City is an
owner of any land or interest therein to which such covenant and restrictions
relate.
14. Recordation; No Subordination. This Agreement shall be recorded in the Official
Records. Developer hereby represents, warrants and covenants that with the exception
of easements of record, absent the written consent of City, this Agreement shall not be
subordinated in priority to any lien (other than those pertaining to taxes or
assessments), encumbrance, or other interest in the Property or the Project. If at the
time this Agreement is recorded, any interest, lien, or encumbrance has been recorded
against the Project in position superior to this Agreement, upon the request of City,
Developer hereby covenants and agrees to promptly undertake all action necessary to
clear such matter from title or to subordinate such interest to this Agreement consistent
with the intent of and in accordance with this Section 14, and to provide such evidence
thereof as City may reasonably request.
15. Mortgagee Protection. No violation of any provision contained herein shall defeat
or render invalid the lien of any mortgage or deed of trust made in good faith and for
value upon all or any portion of the Project or the Property, and the purchaser at any
trustee's sale or foreclosure sale shall not be liable for any violation of any provision
hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall
be bound by and subject to this Agreement from and after such trustee's sale or
foreclosure sale. Promptly upon determining that a violation of this Agreement has
occurred, City shall give written notice to the holders of record of any mortgages or
deeds of trust encumbering the Project or the Property that such violation has occurred.
16. Default and Remedies.
16.1 Events of Default. An Event of Default shall arise hereunder upon the
occurrence of Developer's default in the performance of any term, provision or covenant
under this Agreement and the continuation of such default for ten (10) days in the event
of a monetary default or thirty (30) days in the event of a non -monetary default following
the date upon which City shall have given written notice of the default to Developer, or if
the nature of any such non -monetary default is such that it cannot be cured within thirty
(30) days, Developer's failure to commence to cure the default within thirty (30) days
Resolution No. 2020-030 N.C.S. Page 13
and thereafter prosecute the curing of such default with due diligence and in good faith,
but in no event longer than sixty (60) days from the date of delivery of the notice of
default.
16.2 Remedies. Upon the occurrence of an Event of Default and its
continuation beyond any applicable cure period, City may proceed with any of the
following remedies:
A. Bring an action for equitable relief seeking the specific performance of the
terms and conditions of this Agreement, and/or enjoining, abating, or
preventing any violation of such terms and conditions, and/or seeking
declaratory relief;
B. Bring an action for damages or pursue any other remedy allowed at law,
or in equity;
C. Pursue any remedy available under the Density Bonus Ordinance or the
Inclusionary Zoning Ordinance.
Each of the remedies provided herein is cumulative and not exclusive. The City
may exercise from time to time any rights and remedies available to it under applicable
law or in equity, in addition to, and not in lieu of, any rights and remedies expressly
provided in this Agreement.
17. Indemnity. To the greatest extent permitted by law, Developer shall indemnify,
defend (with counsel approved by City) and hold the City and its elected and appointed
officers, officials, employees, agents, consultants, contractors and representatives
(collectively, the "Indemnitees") harmless from and against all liability, loss, cost,
expense (including without limitation attorneys' fees and costs of litigation), claim,
demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine,
order, and damage (all of the foregoing collectively "Claims") arising directly or
indirectly, in whole or in part, as a result of or in connection with Developer's
construction, management, or operation of the Property and the Project or any failure to
perform any obligation as and when required by this Agreement. Developer's
indemnification obligations under this Section 17 shall not extend to Claims to the extent
resulting from the gross negligence or willful misconduct of Indemnitees. The provisions
of this Section 17 shall survive the expiration or earlier termination of this Agreement.
18. Miscellaneous.
18.1 Amendments. This Agreement may be amended or modified only by a
written instrument signed by both Parties.
18.2 No Waiver. Any waiver by City of any term or provision of this Agreement
must be in writing. No waiver shall be implied from any delay or failure by City to take
action on any breach or default hereunder or to pursue any remedy allowed under this
Agreement or applicable law. No failure or delay by City at any time to require strict
Resolution No. 2020-030 N.C.S. Page 14
performance by Developer of any provision of this Agreement or to exercise any
election contained herein or any right, power or remedy hereunder shall be construed
as a waiver of any other provision or any succeeding breach of the same or any other
provision hereof or a relinquishment for the future of such election.
18.3 Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Agreement shall be made in writing and sent to the Parties at their
respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other parties in accordance with this
Section. All such notices shall be sent by: (i) personal delivery, in which case notice is
effective upon delivery; (ii) certified or registered mail, return receipt requested, in which
case notice shall be deemed delivered upon receipt if delivery is confirmed by a return
receipt; or (iii) nationally recognized overnight courier, with charges prepaid or charged
to the sender's account, in which case notice is effective on delivery if delivery is
confirmed by the delivery service.
City: City of Petaluma
11 English Street
Petaluma, CA 94952
Attention: City Manager
Developer: Todd Kurtin
Lomas Partners LLC
13848 Weddington Street
Sherman Oaks, CA 91401
18.4 Further Assurances. 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 necessary to carry out the intent of this
Agreement.
18.5 Parties Not Co -Venturers Independent Contractor; No Agency
Relationship. Nothing in this Agreement is intended to or shall establish the Parties as
partners, co -venturers, or principal and agent with one another. The relationship of
Developer and City shall not be construed as a joint venture, equity venture, partnership
or any other relationship. City neither undertakes nor assumes any responsibility or
duty to Developer (except as expressly provided in this Agreement) or to any third party
with respect to the Project. Developer and its employees are not employees of City but
rather are and shall always be considered independent contractors. Furthermore,
Developer and its employees shall at no time pretend to be or hold themselves out as
employees or agents of City. Except as City may specify in writing, Developer shall not
have any authority to act as an agent of City or to bind City to any obligation.
18.6 Action by the City. Except as may be otherwise specifically provided
Resolution No. 2020-030 N.C.S. Page 15
herein, whenever any approval, notice, direction, consent or request 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 Manager of the City of Petaluma or by
any person who shall have been designated by the City Manager, without further
approval by the City Council.
18.7 Non -Liability of City and City Officials, Employees and Agents. No
member, official, employee or agent of the City shall be personally liable to Developer or
any successor in interest, in the event of any default or breach by the City, or for any
amount of money which may become due to Developer or its successor or for any
obligation of City under this Agreement.
18.8 Headings; Construction; Statutory References. The headings of the
sections and paragraphs of this Agreement are for convenience only and shall not be
used to interpret this Agreement. The language of this Agreement shall be construed
as a whole according to its fair meaning and not strictly for or against any Party. All
references in this Agreement to particular statutes, regulations, ordinances or
resolutions of the United States, the State of California, or the City of Petaluma shall be
deemed to include the same statute, regulation, ordinance or resolution as hereafter
amended or renumbered, or if repealed, to such other provisions as may thereafter
govern the same subject.
18.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
18.10 Governing Law; Venue. This Agreement shall be construed in accordance
with the laws of the State of California without regard to principles of conflicts of law.
Any action to enforce or interpret this Agreement shall be filed and heard in the Superior
Court of Sonoma County, California or in the Federal District Court for the Northern
District of California.
18.11 Attorneys' Fees and Costs. If any legal or administrative action is brought
to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled
to recover all reasonable attorneys' fees and costs incurred in such action.
18.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and
enforceability of the remaining provisions shall not be affected or impaired thereby.
18.13 Entire Agreement; Exhibits. This Agreement contains the entire
agreement of Parties with respect to the subject matter hereof, and supersedes all prior
oral or written agreements between the Parties with respect thereto. Exhibits A though
C attached hereto are incorporated herein by this reference.
18.14 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one
Resolution No. 2020-030 N.C.S. Page 16
agreement.
SIGNATURES ON FOLLOWING PAGES.
Resolution No. 2020-030 N.C.S.
Page 17
IN WITNESS WHEREOF, the Parties have executed this Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants as of
the date first written above.
Lomas Partners LLC, a California limited liability company
By:
Print Name:
Title:
CITY:
City of Petaluma, a California municipal corporation and charter city
By:
Peggy Flynn, City Manager
ATTEST:
Claire Cooper, City Clerk
APPROVED AS TO FORM:
Eric W. Danly, City Attorney
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SIGNATURES MUST BE NOTARIZED.
Resolution No. 2020-030 N.C.S. Page 18
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On before me, (here insert name and title
of the officer), 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
1551\01\1905088.1
(Seal)
Resolution No. 2020-030 N.C.S. Page 19
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On before me,
(here insert name and title
of the officer), 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
1551\01\1905088.1
(Seal)
Resolution No. 2020-030 N.C.S. Page 20
Exhibit A
._6
Real property situated in the City of Petaluma, County of Sonoma, State of
California, State of California described as follows:
APN: 137-061-019
1551\01\1905088.1
[Insert legal description.]
Resolution No. 2020-030 N.C.S. Page 21
I-MMMON01
(Attach form of Affordable Housing Regulatory Agreement and Declaration of
Restrictive Covenants to be executed by and between City and HLT.)
Recording requested by and when 1.
recorded mail to:
City of Petaluma
Attn: City Clerk
EXEMPT FROM RECORDING FEES
PERGOVERNMENT CODE §§6103,
27383
F1
Space above this line for Recorder's use.
AFFORDABLE HOUSING AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS
("REGULATORY AGREEMENT")
This Affordable Housing Agreement and Declaration of Restrictive
Covenants (this "Agreement') is entered into effective as of
2019 ("Effective Date") by and between the City of Petaluma, a California
municipal corporation and charter city ("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 the Petaluma Implementing Zoning Ordinance, Ordinance No.
2300 N.C.S., Section 3.040 (the "Ordinance"), residential developments of five
(5) 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
Ordinance with respect to that certain development known as the Corona Station
Subdivision, consisting of 110 residential units (the "Development") in the City
of Petaluma, County of Sonoma, and State of California, Lomas Partners, a
Limited Partner ("Developer"), has agreed to contribute a portion of the property
in the Development, for the construction of 17 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 B
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Resolution No. 2020-030 N.C.S. Page 22
B. As of the Effective Date, the land underlying
and as more particularly described in Exhibit A, has been conveyed to HLT by
Developer pursuant to a Grant Deed recorded in the Official Records of Sonoma
County ("Official Records").
C. HLT has entered into, or shall enter into an agreement with Developer,
pursuant to which Developer 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 Declaration of Affordability
Covenants, Buyer's Occupancy Resale Restriction and Option to Purchase
("Declaration") as well as a ground lease ("Ground Lease") for Restricted
Homes 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 Ordinance and the
conditions of approval for the 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.
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Resolution No. 2020-030 N.C.S. Page 23
(e) "Low -Income" means an annual income which does not exceed
eighty percent (80%) of the Area Median Income adjusted for household size.
(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. Developer will construct
Restricted Homes on the Property and sell
Restricted Homes at an Affordable Purchase Price to an Eligible Buyer of Low -
Income, Restricted Homes at an Affordable Purchase Price to an
Eligible Buyer of 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 Declaration and related Deed of Trust
(the "Deed of Trust") substantially in the form attached hereto as Exhibit C or a
Ground Lease, substantially in for the attached hereto as Exhibit C-1. Among
other provisions, the Declaration or Ground Lease, as applicable, 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, the Declaration and 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 Declaration or Ground Lease, as applicable.
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, preference is to be given to persons that
either live or work in Petaluma. 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 Developer to comply, with applicable fair housing laws in the marketing
and sale, as applicable, of the Restricted Homes.
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Resolution No. 2020-030 N.C.S. Page 24
4. Affordable Purchase Price. The Maximum Initial Sales Price for the
Homes is shown in Exhibit B attached hereto and incorporated herein.
5. City Review of Documents. Upon request, HLT agrees that it shall provide
the form of Ground Lease, Declaration and Deed of Trust to be executed by the
homebuyers.
6. Compliance Reports, Inspections, Monitoring. Upon completion of
construction of the Restricted Homes, and annually thereafter by no later than
each anniversary of the Effective Date, upon City's request HLT shall submit to
City 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 or Declaration, as
applicable.
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 to
an instrument recorded in the Official Records of Sonoma County.
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, 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 or Assignment of Rights.
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Resolution No. 2020-030 N.C.S. Page 25
A. For those Restricted Homes that are subject to a Ground Lease the
following shall apply. 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 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.
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 9, 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.
B. For those Restricted Homes that are subject to a Declaration, the
following shall apply: If, at or 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, the City shall have the option to assume HLT's rights under each
Declaration and Deed of Trust. Upon notice from the City of a violation under this
Section 9B and the exercise of the option under this Section 913 by the City, HLT
shall assign its interest in the applicable Declaration(s) and Deed(s) of Trust to
the City. In such event City shall assume the rights and obligations of HLT under
the applicable Declaration(s) and Deed(s) of Trust.
In order to exercise the option to assume described in 9B above, the City
shall give HLT notice of assignment, and HLT shall, within thirty (30) days after
receipt of such notice to assign its rights and obligations under the applicable
Declaration and Deed of Trust to the City.
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.
Notwithstanding any other provision in this Agreement to the contrary, this
Agreement shall not diminish or affect the rights of the California Housing
Finance Agency ("CaIHFA"), HUD, the Federal National Mortgage Association
("FNMA"), or the Veterans Administration ("VA") under any mortgage recorded
against the Property in compliance with the Declaration.
11. Remedies Cumulative. No right, power, or remedy specified in this
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Resolution No. 2020-030 N.C.S. Page 26
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
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.
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Resolution No. 2020-030 N.C.S. Page 27
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:
City:
City of Petaluma
II. 11 English Street
Petaluma, CA 94952
Attn: City Clerk
HLT:
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 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. Notwithstanding any other provision
hereof, the provisions of this Agreement shall be subordinate to the lien of the
First Lender Loan (as defined in the Declaration) and shall not impair the rights of
the First Lender, or the First Lender's successor or assign, to exercise its
remedies under the First Lender Deed of Trust in the event of default under the
First Lender Deed of Trust by the Owner. Such remedies under the First Lender
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Resolution No. 2020-030 N.C.S. Page 28
Deed of Trust include the right of foreclosure or acceptance of a deed or
assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed
or assignment in lieu of foreclosure, this Agreement shall be forever terminated
and shall have no further effect as to the Unit or any transferee thereafter;
provided, however, if the holder of such First Lender Deed of Trust acquired title
to the Home pursuant to a deed or assignment in lieu of foreclosure and no
notice of default was recorded against the Home by such holder in connection
therewith, this Agreement shall automatically terminate upon such acquisition of
title, only if (i) the City has been given written notice of default under such First
Lender Deed of Trust with a sixty (60) -day cure period (which requirement shall
be satisfied by recordation of a notice of default under California Civil Code
Section 2924), and (ii) the City shall not have cured the default within the sixty
(60) -day period. Owner agrees to record any necessary documents to effect
such termination, if applicable
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.
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
necessary to carry out the intent of this Agreement. Except as may be
otherwise specifically provided herein, whenever any approval, notice, direction,
consent or request 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 Manager 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 in his or her discretion that such action requires such approval.
21. Governing Law; Venue. This Agreement shall be construed and enforced
in accordance with the laws of the State of California without regard to principles
of conflicts of law. The Parties consent to the jurisdiction of any federal or state
court 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
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Resolution No. 2020-030 N.C.S. Page 29
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:
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 Declaration and Deed of Trust
Exhibit C-1 Form of Ground Lease
[SIGNATURES ON FOLLOWING PAGE; SIGNATURES MUST BE
NOTARWEDI
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Resolution No. 2020-030 N.C.S. Page 30
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:
10111110
City of Petaluma,
a California municipal corporation
By:
Peggy Flynn, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Eric W. Danly, City Attorney
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Resolution No. 2020-030 N.C.S. Page 31
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , before me, , 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.
1551\01\1905088.1
Name:
Notary Public
Resolution No. 2020-030 N.C.S. Page 32
Exhibit A
Real property in the City of Petaluma, County of Sonoma, State of California,
described as follows:
, as shown upon the map entitled
filed 200_ in Book of Maps Pages
Sonoma County Records.
APN:
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Resolution No. 2020-030 N.C.S. Page 33
Workforce housing maximum sales price sheet
17 ATTACHED SINGLE FAMILY:
Low Income Households: 80% area medium income:
j 2 Bedroom 3 Bedroom
Sales Price
Moderate Income Households: 120% area medium income:
2 Bedroom 3 Bedroom
Sale Price $
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Resolution No. 2020-030 N.C.S. Page 34
OAK #4830-3306-1290 v2
Exhibit C-1
[Attach form of Ground Lease]
Resolution No. 2020-030 N.C.S.
Page 35