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24449916 - Regulatory Agreement and Declaration of Restrictive Coventants - - Recorded 04/08/2020RECORDING REQUESTED BY: First American Title Company WHEN RECORDED MAIL DOCUMENT TO: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020-6141 Attn: City Clerk A.P.N.: 808-18-003 and 808-19-022 and 808-19-023 Property Address: Parcel 3 of Parcel Map 923 M 50, Gilroy, CA **This document was electronically submitted to Santa Clara County for recording** 24449916 Regina Alcomendras Santa Clara County - Clerk -Recorder 04/08/2020 09:31 AM Titles: 1 Pages: 19 Fees: $0.00 Tax: $0 Total: $0.00 Space Above This Line for Recorder's Use Only File No.: 0131-622425a!a (tb) REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENTANTS Title of Document The undersigned declares that the document to which this page is affixed and made a part of is exempt from the fee imposed by the Affordable Housing &Job Act (SB2) (GC 27388.1) (X) Recorded [concurrently] in connection with a transfer of real property subject to the imposition of Documentary Transfer Tax per GC 27388.1 (a) (2). () Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner - occupier per GC 27388.1 (a) (2). () Maximum fee of $225 has been reached per GC 27388.1 (a) (1). ( ) Not related to real property GC 27388.1 (a) (1). () Transfer of real property subject to the imposition of Documentary Transfer Tax - GC 27388.1 (a)(2) () Transfer of real property that is a residential dwelling to an owner -occupier - GC 27388.1 (a)(2) THIS PAGE ADDED TO PROVIDE EXEMPTION INFORMATION FOR THE BUILDING HOMES AND JOBS ACT FEE (SB-2; AFFORDABLE HOUSING FEE) ($3.00 Additional recording fee applies) ''.ECORDING REQUESTED BY: First American Title Company WHEN RECORDED MAIL DOCUMENT TO: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020-6141 Attn: City Clerk A.P.N.: 808-18-003 and 808-19-022 and 808-19-023 Property Address: Parcel 3 of Parcel Map 923 M 50, Gilroy, CA Space Above This Line for Recorder's Use Only File No.: 0131-622425a1a (tb) REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENTANTS Title of Document The undersigned declares that the document to which this page is affixed and made a part of is exempt from the fee imposed by the Affordable Housing & Job Act (SB2) (GC 27388.1) (X) Recorded [concurrently] in connection with a transfer of real property subject to the imposition of Documentary Transfer Tax per GC 27388.1 (a) (2). ( ) Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner - occupier per GC 27388.1 (a) (2). ( ) Maximum fee of $225 has been reached per GC 27388.1 (a) (1). ( ) Not related to real property GC 27388.1 (a) (1). ( ) Transfer of real property subject to the imposition of Documentary Transfer Tax - GC 27388.1 (a)(2) ( ) Transfer of real property that is a residential dwelling to an owner -occupier - GC 27388.1 (a)(2) THIS PAGE ADDED TO PROVIDE EXEMPTION INFORMATION FOR THE BUILDING HOMES AND JOBS ACT FEE (SB-2; AFFORDABLE HOUSING FEE) ($3.00 Additional recording fee applies) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020-6141 Attn: City Clerk NO FEE PER GOVERNMENT CODE SECTIONS 6103 AND 27383 REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS This Regulatory Agreement and Declaration of Restrictive Covenants ("Agreement") is made and entered into this 2-n4 day of A.P r ; , 2020, by and between the City of Gilroy, a municipal corporation (the "City"), PACIFIC WEST COMMUNITIES, INC., WHICH WILL DO BUSINESS IN CALIFORNIA AS IDAHO PACIFIC WEST COMMUNITIES, INC., AN IDAHO CORPORATION and COMMUNITY RESOURCES, INC., AN IDAHO NONPROFIT CORPORATION (collectively referred to herein as "Owner/Developer"). RECITALS A. Owner/Developer is the owner of certain real property located in the City of Gilroy, Santa Clara County, California, more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"). B. The City has enacted Section 50.60 of the City of Gilroy Zoning Ordinance, which encourages responsible growth in the community, and restricts the amount of housing which may be constructed each year (the "Residential Development Ordinance" or "RDO"). C. The Project (as defined herein) is part of the Glen Loma Ranch development and is subject to the Glen Loma Ranch Specific Plan prepared by Ruggeri -Jensen -Azar & Associates, originally adopted December, 2005, and revised May 19, 2014 (Ordinance No. 2014-07) (collectively, the "Specific Plan") and the Development Agreement Between City of Gilroy and Glen Loma Ranch entered into between the City, Glen Loma Corporation, a California corporation ("GLC"), and the Glen Loma Ranch property owners, dated November 21, 2005, and recorded on October 26, 2006, as Document No. 19158828 in the records of Santa Clara County, California (the "Development Agreement"). GLC is the master developer of Glen Loma Ranch. Under the terms of the Specific Plan and the Development Agreement, Glen Lorna Ranch is to have a designated number of affordable units. Owner/Developer acquired the Property from the prior owners subject to the condition that Owner/Developer construct an affordable housing multi -family housing development project on the Property and the purpose of this Agreement is to satisfy a portion of the affordability requirements set forth in the Specific Plan and the Development Agreement. GLC and the sellers of the Property to Owner/Developer are relying on this Agreement to serve this purpose. -1- D. The City has approved the Owner/Developer's application for Architectural and Site Approval File No. A/S 17-37 (the "A/S Permit") and granted the RDO "Special Exceptions" Exemption under Section 50.60(c)(3) of the Gilroy City Code by Resolution No. 2005-82, to allow the construction of a one hundred fifty-eight (158) unit apartment project, of which one hundred fifty-six (156) units will be income restricted. Notwithstanding any other provision of this Agreement, future amendments to this Agreement, or changes to City Guidelines and pursuant to Section 4.4.9 of the Development Agreement, City and Owner/Developer agree that the Project, will provide ninety-four (94) units that are affordable under the City's Guidelines, sixty-two (62) units that are restricted to seniors and affordable under the City's Guidelines and two (2) units that are senior non -restricted units that shall be designed and constructed so as to encourage affordability by design. E. Units are to be rented at affordable levels, in accordance with the AS Permit, the RDO "Special Exceptions" Exemption, the Development Agreement, and adopted City policies, including without limitation the "Neighborhood District Policy" and the "Senior Citizen Housing Policy", or as otherwise permitted by the City pursuant to a possible "Special Exception" Exemption to the City's current "RDO Affordable Housing Exemption Procedure" and satisfying the same allocation of affordable housing obligations under the Development Agreement. Pursuant to section 4.4.9, entitled "Senior/Affordable Housing," of the Development Agreement, all affordable units required under the Development Agreement are to be allocated among Very Low- and Low -Income Households, in accordance with the City's current "RDO Affordable Housing Exemption Procedure." (the "AHEP"), or as otherwise permitted by the City pursuant to a possible "Special Exception" Exemption to the City's current "RDO Affordable Housing Exemption Procedure" and satisfying the same allocation of affordable housing obligations under the Development Agreement. F. Pursuant to AHEP, forty-two (42) of the Units (27%) shall be affordable to households with incomes sixty percent (60%) or less of the County median income (the "60% Units") and seventy-six (76) of the Units (48%) shall be affordable to households with incomes fifty percent (50%) or less of the County median income (the "50% Units"). Thirty-eight (38) of the Units (24%) shall be affordable to households with incomes eighty percent (80%) or less of the County median income (the "80% Units"). Two (2) of the Units (1 %) are manager's units and shall be affordable within the categories described in Recital D of this Agreement. G. The parties are entering into this Agreement to ensure that the Project will be used and operated in accordance with the A/S Permit, the RDO "Special Exceptions" exemption, the AHEP, and adopted City policies. H. These Recitals are hereby incorporated into and made a part of this Agreement. NOW, THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, City and Owner/Developer agree as follows: -2- 1. Definitions. The following terms shall have the respective meanings assigned to them in this Section 1: (a) "Certificate of Occupancy Date" means the date of issuance by the City of a fully executed and complete Building Clearance Form for the Project. (b) "Closing Date" means the date this Agreement is recorded in the Official Records of the Recorder's Office of Santa Clara County, California (the "Official Records"). (c) "Gross Income" means the total of current adjusted gross income, as calculated for federal income tax purposes and relevant HUD guidelines, of all adult persons who intend to reside pennanently in a household intending to occupy a Unit. (d) "HUD" means the United State Department of Housing and Urban Development. (e) "Low -Income Household" shall refer to a person or persons whose incomes do not exceed the qualifying limits for low income individuals established for Santa Clara County, California, as amended from time to time, pursuant to Section 8 of the United States Housing Act of 1937, adjusted for family size. In the event such federal standards are discontinued, income limits for Low Income Households shall be those set by the California Department of Housing and Community Development for Santa Clara, California as below eighty percent (80%) of Median Income, adjusted for family size. (f) "Very Low -Income Household" shall refer to a person or persons whose incomes do not exceed the qualifying limits for very low income individuals established for Santa Clara County, California, as amended from time to time, pursuant to Section 8 of the United States Housing Act of 1937, adjusted for family size. In the event such federal standards are discontinued, income limits for Very Low Income Households shall be those set by the California Department of Housing and Community Development for Santa Clara, California as below fifty percent (50%) of Median Income, adjusted for family size. (g) "Project" means the Project to be constructed on the Property as described in Recitals C and D of this Agreement, together with all landscaping, parking spaces and appurtenances thereto, and the Property upon which it is constructed, as the same may from time to time be modified or replaced, as further described in the A/S Pen -nit. (h) "Project Approvals" means all governmental approvals obtained by Owner/Developer for the development and construction of the Project, including without limitation the A/S Permit. (i) "Rent" means the total of monthly payments by a tenant for a Unit for the following: use and occupancy of a Unit and associated facilities; any separately charged fees or service charges assessed by Owner/Developer which are required of all tenants, other than security deposits, laundry facility fees, late payment fees, insufficient funds fees and special event or room rental fees; the cost of an adequate level of service for utilities paid by the tenant, -3- if any, including garbage collection, sewer, water, electricity, gas and other heating, cooling and refrigeration fuel, but not telephone service, cable television and any other tenant ordered service; any other interest, taxes, fees or other charges for use of the Unit, land or associated facilities and assessed by a public or private entity other than Owner/Developer, and paid by the tenant. The City may determine the cost of utilities by using the utility allowance promulgated by the United States Department of Housing and Urban Development under the Section 8 Program (i.e., the program administered under Section 8 of the United States Housing Act of 1937, as revised or replaced from time to time) for Santa Clara County, California or the County of Santa Clara established maximum monthly allowances for utilities and services. (j) "Senior By Design" means the units described in Section 4.4.9 of the Development Agreement as "senior non -restricted units that shall be designed and constructed so as to encourage affordability by design.". (k) "Tenn" means the period of time beginning on the Closing Date and ending on the later of (i) fifty-five (55) years following the Certificate of Occupancy Date, or (ii) the date of expiration of the longest running occupancy and rent affordability restriction placed on the Property with respect to any source of debt or equity financing for the Project. (1) "Units" (referred to individually as a "Unit") means the dwelling units to be constructed on the Property as part of the Project. 2. The Owner/Developer hereby acknowledges and agrees that the Project shall be developed, owned, managed and operated to provide one hundred fifty-six (156) Units, which shall be rented and occupied during the Term of this Agreement as set forth in Exhibit "B" hereto. To that end, and for the Term of this Agreement, the Owner/Developer hereby represents, covenants, warrants and agrees as follows: (a) Development and Use as Rental Housing. Owner/Developer shall complete construction of the Project in accordance with all Project Approvals and all loans and encumbrances encumbering the Property. Owner/Developer shall own, manage and operate the Project to provide the one hundred fifty-six (156) Units, which shall be rented and occupied as set forth in Exhibit "B" hereto during the Tern of this Agreement. If at any time during the Tern of this Agreement, there are less than the required number of rental Units to be rented to and occupied by Very Low- and Low -Income Households, Owner/Developer shall market available Units within the Project only for rent to individuals which meet the target household income category necessary to bring the Project into compliance with the requirements of this Agreement, until such time as the Units of the Project are rented to and occupied by the requisite number of Very Low- and Low -Income Households. (b) Compliance With Laws. Each Unit, and all common areas, shall be maintained in conformity with applicable building codes and regulations and all other applicable laws. (c) Prohibition of Use for Transient Housing. None of the Units on the Property shall at any time be utilized on a transient basis, or as a hotel, motel, dormitory, -4- fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home, retirement home, or trailer court or park. (d) Nondiscrimination. The Owner/Developer shall not give preference to any particular class or group of person in renting the Units, except to the extent that all of the Units are required to be leased to Low and/or Very Low Income persons provided such limitation is allowed by applicable laws. The Owner/Developer agrees that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual preference, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the Project nor shall the Owner/Developer, or any person claiming under or through the Owner/Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants or vendees of the Project or in connection with the employment of persons for the operation and management of the Project. All deeds, leases or contracts made or entered into by Owner/Developer as to the Units or the Project or any portion thereof during the Tenn shall contain a prohibition against discrimination or segregation as set forth in this subsection (d) above. Notwithstanding the foregoing, without limiting any of Owner/Developer's obligations under generally applicable law, nothing in this subsection (d) is intended to require Owner/Developer to change the character, design, use or operation of the Project from, or to require Owner/Developer to obtain licenses or pen -nits other than those required for, a rental housing development for persons capable of independent living. (e) Taxes and Assessments. Owner/Developer shall pay all real and personal property taxes, assessments and charges and all franchise, income, employment, withholding, sales, and other taxes assessed against Owner/Developer or the Project, or otherwise payable by Owner/Developer, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Project; provided, however, that Owner/Developer shall have the right to contest in good faith, any such taxes, assessments or charges. If Owner/Developer exercises its right to contest any tax, assessment or charge against it or the Project, Owner/Developer, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it or the Project, together with all costs, charges and interest. (f) Maintenance. Owner/Developer shall at all tunes maintain the Project in good repair and working order, reasonable wear and tear excepted, and in a safe and sanitary condition, and from time to time shall make all necessary and proper repairs, renewals and replacements in order to keep the development in a good, safe and sanitary condition. 3. Occupancy and Rent Restrictions. Owner/Developer hereby represents, warrants, and covenants as follows: (a) Occupancy by Very Low- and Low -Income Households. Owner/Developer agrees to exert diligent efforts to see that the Project provides residential rental housing, the requisite number of which shall be rented and occupied solely by Senior By Design, Very Low- and Low -Income Households during the Term of this Agreement. Attached hereto as -5- Exhibit "B" is a listing of the number of Units within the Project and the number of bedrooms in each Unit. If, at any time during the Term of this Agreement, less than the required number of Units are rented to and occupied by Very Low- and Low -Income Households, Owner/Developer agrees to market the available Units in the Project only for rent to households which meet the target household income category necessary to bring the Project into compliance with the requirements of the Agreement, until the required number of Units in the Project are rented to and occupied by the requisite number of Very Low- and Low -Income Households. The marketing requirements set forth in this subsection (a) above shall apply regardless of the reason for less than the required number of Units being rented to and occupied by Very Low- and Low - Income Households at any given time during the Term of this Agreement, including without limitation where such situation exists as the result of income increases of any tenant who may at one time have qualified for the targeted household income category. (b) Allowable Rent. The rent payable for each of the 50% Units shall be affordable to households with incomes fifty percent (50%) or less of the County median incomes adjusted for imputed household size, as determined by HUD. The rent payable for each of the 60% Units shall be affordable to households with incomes sixty percent (60%) or less of the County median incomes adjusted for imputed household size, as determined by HUD. The rent payable for each of the 80% Units shall be affordable to households with incomes eighty percent (80%) or less of the County median incomes adjusted for imputed household size, as determined by HUD. The AHEP requires that rental rates shall be equivalent to the California Tax Credit Allocation Committee (CTCAC) 50% income level rental rates for Santa Clara County on Very Low -Income Units. Rent for any Unit may only be increased one (1) time per year, and the Rent levels following an increase, or upon a new occupancy, shall not exceed the applicable Rent levels required pursuant to this Subsection (b). A tenant shall not be required to pay a cleaning and/or security deposit totaling in the aggregate more than the monthly Rent for a Unit plus an allowable pet deposit. (c) Effect of Increase in Income. City reserves the right to review all documents and materials related to tenant eligibility, and to verify the continuing eligibility of all tenants and prospective tenants. All prospective tenants shall have their eligibility verified by the Owner/Developer prior to rental of the Unit. Owner/Developer shall re -certify tenant incomes annually thereafter. (d) Advertising and Outreach. Owner/Developer shall advertise the existence and terms of this rental program to the general public, coordinate specific outreach efforts to Very Low- and Low -Income Households through cooperation with social service agencies, City agencies, and other entities serving such Very Low- and Low -Income Households, and accept applications from prospective tenants. Owner/Developer shall keep a list of all qualified tenants, and shall make this list, along with all relevant financial data pertaining to prospective tenants, available to City upon request. All tenants shall be selected off of this list. Owner/Developer shall provide the City with a detailed outreach and advertising plan acceptable to City not less frequently than annually during the Term of this Agreement, in order to insure that the housing needs for Very Low- and Low -Income Households are met. -6- (e) Compliance with A/S Permit. Rental of the Units within the Project shall be subject to and shall comply with the criteria for occupancy standards set forth in the A/S Permit, as the same may be amended from time to time. No deviation from such criteria for occupancy standards shall be allowed except as expressly agreed to by the City on application of Owner/Developer, determined in City's sole discretion. 4. Income Certification and Reporting. (a) Tenant Certifications. (i) During any period that income and household size and composition certifications from each tenant and household are required to be submitted to any federal, state and/or county agencies under the terms of any loan from such agencies recorded against the Project, Owner/Developer shall submit copies of those certifications to City at the same time that submittal of such certifications are required to be made to the applicable federal, state and/or county agencies. (ii) During any period when income and household size and composition certifications from each tenant and household are not required to be submitted to any federal, state, and/or county agencies under the terms of any loans from such agencies recorded against the Project, the requirements of this subsection (ii) shall apply. Immediately prior to initial occupancy by such tenant household and annually thereafter, Owner/Developer shall obtain income and household size and composition certifications by each tenant household obtained in such form required by City from time to time. Owner/Developer shall obtain updated forms for each tenant household on request by the City, but in no event less frequently than once a year. Owner/Developer shall verify that the income information provided by an applicant or occupying household in an income certification is accurate by taking one or more of the following steps as part of the verification process; (1) obtain pay stubs for the three (3) most recent pay periods; (2) obtain an income tax return for the most recent tax year; (3) obtain an income verification form from the applicant's current employer; (4) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (5) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications and documents verifying income shall be maintained during the entire occupancy of a Unit by a household and for a period of not less than five (5) years thereafter and shall be available to the City within five (5) days after request. (b) Annual Report to City. Each year the Owner/Developer shall submit an annual report to the City on a form to be provided by the City, except that to the extent that an annual report containing the information required by this subsection (b) below is required to be submitted to any federal, state and/or county agencies under the terms of any loans from such agencies recorded against the Project, the annual report to be submitted to the City shall be on the same forms as is required to be submitted to such federal, state and/or county agencies. The annual report shall include for each Unit, the Rent and the income and family size and composition of the household occupying the Unit. The report shall also state the date the -7- tenancy commenced for each Unit. The income and household size and composition information shall be as supplied by each tenant household in the certification form required by Section 4(a) above. A true copy of each such form, signed by the tenant, shall be attached to the Owner/Developer's annual report to the City. For each calendar year during the Term, an annual report shall be filed with the City not later than September 30 of the following calendar year. (c) Additional Information. The Owner/Developer shall provide to the City any additional information required by the laws of the City, the State of California and the United States, as the same may be amended from time to time. (d) Lease. To the extent not in conflict with the requirements of any loan to which this Agreement has been expressly subordinated by written agreement of the City, the provisions of this subsection (d) shall apply. Owner/Developer shall include in leases and rental agreements for all Units, provisions which authorize Owner/Developer to immediately terminate the occupancy of any individual who misrepresented any fact material to the household's qualification as a Very Low- or Low -Income household. Each lease or rental agreement shall also provide that the household is subject to annual certification in accordance with Section 4(a) above. Owner/Developer shall specifically refer to this Agreement in any lease of a Unit and to any purchase and sale contract with respect to any portion of the Project, provided that failure to do so shall not invalidate or otherwise affect the effectiveness of this Agreement. Every grant deed for all or any portion of the Project shall specifically state that the grant is made subject to all of the terms and conditions set forth in this Agreement, provided that Owner/Developer's failure to comply with these requirements shall not invalidate or otherwise affect the effectiveness of this Agreement. (e) Cooperation. City acknowledges and agrees that Owner/Developer will be obtaining financing for the Project with assistance from the California Tax Credit Allocation Committee, California Housing Finance Agency, California Municipal Finance Authority, Santa Clara County, and other state or federal housing agencies, which financing will be secured by deeds of trust and/or regulatory agreements to be recorded prior to the lien of this Agreement. In addition, the City agrees to subordinate this Agreement to the lien of the deed of trust and regulatory agreement required in connection with the Owner/Developer's receipt of Multi -family Housing Program financing from the State Department of Housing and Community Development. 5. Indemnification. The Owner/Developer hereby covenants and agrees that it shall defend, indemnify, and hold harmless, through counsel approved by City (which approval will not be unreasonably withheld), the City and the City's officers, members, commissioners, directors, officials, employees, and agents (collectively, the "Indemnified Parties"), from and against any and all claims arising directly or indirectly from this Agreement and the construction, ownership, operation or management of the Project; and all reasonable costs and counsel fees incurred by the Indemnified Parties in defense of such a claim, or in order to assert its rights under this Section 5, except to the extent such claims arise from the sole negligence or willful misconduct of an Indemnified Party. -8- 6. Tenn. This Agreement shall become effective upon its execution and delivery and shall remain in full force and effect for the Tenn. This Agreement shall bind any successor, heir or assign of Owner/Developer, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, with or without the approval of the City, except as expressly released by the City. This Agreement shall inure to the benefit of the City and its successors. 7. Covenants to Run with the Land. The City and Owner/Developer hereby declare their express intent that the covenants and restrictions set forth in this Agreement are covenants running with the land, and that the covenants shall be binding upon all successors in title to the Project and Property or any portion thereof for the Teiui hereof. Each and every contract, deed or other instrument hereafter executed covering or conveying the Project or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants and restrictions are set forth in such contract, deed or other instrument. The Owner/Developer and the City hereby declare their understanding and intent that: (a) The covenants and restrictions contained in this Agreement shall be covenants running with the land pursuant to California Civil Code section 1460 et seq.; and (b) The burden of the covenants and restrictions set forth in this Agreement touch and concern the Project in that the Owner/Developer's legal interest in the Property and all improvements thereon may be rendered less valuable thereby; and (c) The benefit of the covenants and restrictions set forth in this Agreement also touch and concern the Project by enhancing and increasing the enjoyment and use of the Project and Units by Very Low- and Low -Income Households, furthering the public purpose for which exemption from the RDO was granted to Owner/Developer. Notwithstanding the foregoing, all covenants and restrictions contained herein without regard to technical classification or designation shall be binding upon the Owner/Developer and its successors in interest for the benefit of the City, and such covenants and restrictions shall run in favor of City for the entire Term, without regard to whether the City is an owner of any land or interest therein to which such covenant and restrictions relate. 8. Uniformity, Common Plan. The covenants and restrictions set forth in this Agreement shall apply uniformly to all Units, in order to establish and carry out a common plan for the use of the Property. 9A. Enforcement by the City. If the Owner/Developer defaults in the perfonnance of any of the Owner/Developer's obligations under this Agreement, City shall have the right to pursue any or all of the following actions, or any other remedy provided by law or in equity: (a) Action to Compel Performance. The City may bring an action at law or in equity to compel the Owner/Developer's performance of its obligations under this Agreement -9- and/or to prevent the violation of the terms and conditions of this Agreement by Owner/Developer. (b) Action for Damages. The City may bring an action to collect damages from the Owner/Developer due to Owner/Developer's default. (c) All Remedies Available and Cumulative. City shall have the right to exercise all available rights and remedies, and to maintain any action at law or suits in equity or other proceedings, including without limitation, specific performance, to enforce the terms, covenants and restrictions of this Agreement. No delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right of the City to enforce the provisions hereof in the future for any continuing or new breach or violation of any of the terms, covenants or restrictions contained in this Agreement. All rights and remedies, including without limitation those set forth in this Section 9A above, of any party legally entitled to enforce this Agreement shall be cumulative and the exercise of any such right or remedy shall not impair or prejudice and shall not be a waiver of the right to exercise any other such rights and remedies. 9B. Enforcement by GLC. Owner/Developer and City agree that GLC is a third -party beneficiary to this Agreement with full right, power and authority, but without any obligation, to enforce the terms and conditions of this Agreement; provided, however, that GLC's sole and exclusive remedy as to the City would be injunctive relief (and in no event would GLC be entitled to recover monetary damages, including attorney's fees). 10. Lienor's Remedies. The provisions of this Agreement do not limit the right of any obligee to exercise any of its remedies for the enforcement of any pledge or lien upon the Property; provided, however, that in the event of any foreclosure, under any mortgage, deed of trust or other lien or encumbrance, or a sale pursuant to any power of sale included in any such mortgage or deed of trust, or in the case of a deed in lieu of foreclosure, the purchaser (or other transferee) and their successors in interest and assigns and the Property shall be, and shall continue to be, subject to all of the covenants and restrictions set forth in this Agreement. The provisions of this Section 10 shall not apply with respect to any loan to which this Agreement has been expressly subordinated pursuant to a separate written instrument executed by City. Notwithstanding the foregoing, in the event of a foreclosure, deed in lieu of foreclosure, or other involuntary transfer of the Project, all provisions of this Agreement shall be modified to provide that one hundred fifty six (156) of the Units shall be available to and occupied by households whose gross income does not exceed 80% of county median income adjusted for family size at rents that are affordable to households whose income does not exceed 80% of County median income for Santa Clara County, adjusted for imputed household size, as determined by HUD. 11. Right of Inspection. City shall have the right from time to time during the Term of this Agreement, and for a period of five (5) years thereafter, upon giving Owner/Developer reasonable notice, to examine and make copies of all books, records or other documents of the Owner/Developer which pertain to the Project. All such books, records and other documents -10- pertaining to the Project shall be maintained at the office of the Owner/Developer or management agent. All such books, records and documents shall be maintained by Owner/Developer for a period of not less than five (5) years, or such longer period as required by this Agreement. 12. Attorneys' Fees and Costs. In any action brought to enforce or interpret this Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including reasonable attorneys' fee. 13. Recording and Filing. City and Owner/Developer shall cause this Agreement and all amendment and supplements to it, to be recorded in the Official Records, at Owner/Developer's cost. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in State and Federal courts located in Santa Clara County, California. 15. Amendments. Except as otherwise provided herein, the following shall apply: 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. The City and its successors and assigns, on the one hand, and the Owner/Developer and its successors in interest and assigns, on the other, shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants or restrictions contained in this Agreement without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. This Agreement shall not be amended, modified or terminated except upon the written consent of the City and upon the recordation of an amendment hereto duly executed and acknowledged by City and Owner/Developer. Whenever any approval, amendment, request or other action by the City is required or permitted under this Agreement, such action may be given, made or taken by the City Administrator , or his designee, in his/her discretion without further approval by the City Council and such action shall be in writing. The City Administrator is authorized, in his or her sole and absolute discretion to (i) approve non -material modifications to the terms of the instrument and agreements to be executed to implement this Agreement, and (ii) approve requests by the Owner/Developer for reasonable extensions of time deadlines set forth in this Agreement. Amendments to the Agreement authorized by the City Administrator shall not reduce the Term or affect the affordability requirements, number of Units or otherwise affect the restrictions and/or covenants for affordability. Notwithstanding any other provision of this Agreement, City and Owner/Developer agree not to terminate, rescind or modify this Agreement in any manner that would reduce the number of affordable units required under this Agreement, materially change the terms and conditions set forth herein applicable to the affordable units or revise Recitals C and D and Sections 9B and 15 of this Agreement without the prior written consent of GLC, which consent shall not be unreasonably withheld. -11- 16. Notice. All notices shall be given personally or by first class mail, postage prepaid, addressed as shown on the signature page of this Agreement. Notices shall be deemed given on the earlier of the date delivered or the second day following the date on which the same have been mailed in the manner required by the prior sentence. Any of the parties may, by notice given in the manner required by this Section 16, designate any further or different addresses to which subsequent notices shall be sent. 17. Severability. If any provision of this Agreement (or portion or application thereof) are held to be invalid or unenforceable by any court of competent jurisdiction, City and Owner/Developer shall negotiate an equitable adjustment in the provisions of this Agreement with a view toward effecting the purpose of this Agreement, and the validity and enforceability of the remaining provisions or portions of this Agreement (or applications thereof) shall not in any way be affected or impaired thereby. 18. Assignment. This Agreement may be assigned with the written consent of the City, not to be unreasonably withheld, to an entity created by the Owner/Developer for the sole purpose of developing, owning, managing and operating the Project in which the Owner/Developer shall remain as general partner or managing partner. Notwithstanding any other provision of this Agreement, no other duties or obligations of the Owner/Developer under this Agreement may be assigned by the Owner/Developer without the prior written consent of City, in the sole and absolute exercise of City's discretion. 19. Other Agreements. The parties acknowledge and agree that the operation of the Units in accordance with this Agreement satisfies the Owner/Developer's obligations under the A/S Permit, the AHEP and the RDO "Special Exceptions" Exemption, granted, with respect to the income, rent and length of stay restrictions applicable to the Units. In the event of any inconsistency between this Agreement and the foregoing documents and approvals with respect to the income and rent restrictions applicable to the Project, this Agreement shall control. 20. Counterparts. The parties hereto agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same Agreement, binding all of the parties hereto, notwithstanding that all of the parties are not signatories to the original or the same counterparts. For all purposes, including, without limitation, recordation, filing and delivery of this instrument, duplicate, unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document. IN WITNESS WHEREOF, the City and the Owner/Developer have executed this Agreement by duly authorized representatives on the date and year shown below. CITY OF C ; OYha municipal corporation By: T,MMy Earl i-D+ bi5 jC• Its: 1-tr , fv► Address: C I -i y r'i ; rn+P 735 i gcSanna . Cs, Iroy, CA 9Sa2-0 -12- Approved As to Form: Dated: &Lc A-nc� F be r —" rn rr, 13 ,20. 0 7351 Rosanna Street Gilroy, CA 95020-6141 PACIFIC WEST COMMUNITIES, INC., WHICH WILL DO BUSINESS IN CALIFORNIA AS IDAHO PACIFIC WEST COMMUNISES, INC. AN IDAHO CORPORATION By: By: Its: CAifB PooPE PRESIDEaft. GE6 COMMUNITIY RESOURCES, INC. AN IDAHO NONPROFIT CORPORATION By: L, A",DRE-4-aAR.K Its: SEGREfA Ry -13- CALDF©RG`31i& &U.-P ➢RPOSSE ACKNO 1LEDGE ERTY CMLL. CODE § 1189 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 Sr 11+0 (-Urn On 740,61 2) 2-020 Date personally appeared before me, Ci f Gt E . N Gt i%C Al 10+ f IA e Here Insert Name and Title of the Officer 1► yv► n 1} to r I For •, s ;Tr J Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person whose nameks) is/are subscribed to the within instrument and acknowledged to me that he/s e/the j executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(sfon 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 - G Signature of Notary Public SANDRA E. NAVA f Notary Public - California Santa Clara County Commission # 2262752 My Comm. Expires Nov 11, 2022 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. �D CIarU't%c51 L'"f '�QStr�c1 eve (ovefG[Y1�1 S Description of Attached) Document Title or Type of Document: Requlu+orJv )401r•¢e"en+ and Document Date: Ryas' I Z 1 'ZvZO Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2014 National Notary Association ^ www.NationalNotary.org ^ 1-800-US NOTARY (1-800-876-6827) Item #5907 GENERAL ACKNOWLEDGMENT STATE OF IDAHO ) ,� _I ) ss COUNTY OF 71 i, / ) On this day of JMA,1(6 1 , in the year of 2020, before me, 1-C ((11841 a notary public, personally appeared r1 I.W P-dt- , proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. [SEAL] Notary Public My commission expires: 1I0l7-1 K TIE CALLEN COMMISSION #65899 NOTARY PUBLIC STATE OF IDAHO MY COMMISSION EXPIRES 07/08/2021 GENERAL ACKNOWLEDGMENT STATE OF IDAHO ) J ) ss COUNTY OF A 1A ) On this day of motes , in the year of 2020, before me, fettle Odell a notary public, personally appeared L - 6101.004-, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. [SEAL] Notary 13ublic My commission expires: 1(Si 2-1 KATiE CALLE:N COMMISSION #65899 NOTARY PUBLIC IDAHO STATE'. f irs= i �.A ,OM;\ iS340;`v l '':PI tES 01/38/2021 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY Real property in the City of Gilroy, County of Santa Clara, State of California, described as follows: PARCEL 3, AS SHOWN ON PARCEL MAP, FILED FOR RECORD JUNE 4, 2019, IN BOOK 923 OF MAPS, AT PAGES 50-54, OF COUNTY RECORDS. -1- EXHIBIT "B" IDENTIFICATION OF UNITS RESERVED FOR LOW-INCOME HOUSEHOLDS Number of Units Number of Bedrooms 11 1 bedroom 17 2 bedroom 14 3 bedroom The initial income levels of each household occupying a Unit shall not exceed sixty percent (60%) of County median income. IDENTIFICATION OF UNITS RESERVED FOR VERY LOW-INCOME HOUSEHOLDS Number of Units Number of Bedrooms 22 1 bedroom 30 2 bedroom 24 3 bedroom The initial income levels of each household occupying a Unit shall not exceed sixty percent (50%) of County median income. IDENTIFICATION OF UNITS RESERVED FOR SENIOR BY DESIGN UNITS Number of Units Number of Bedrooms 34 1 bedroom 2 2 bedroom 2 3 bedroom The income levels of each household occupying a Unit shall not exceed eighty percent (80%) of County median income. -1-