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HomeMy WebLinkAboutReso 035 DubRanGAffordHousAgmt RESOLUTION NO. 35 - 02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVAL OF AFFORDABLE HOUSING AGREEMENT FOR PA 01-009 DUBLIN RANCH AREA G TOLL BROTHERS WHEREAS, Toll Brothers - Dublin Ranch L.L.C (Developer) is the owner of four parcels known as Neighborhoods MH-1, MH-2, H-1 and H-2 of Dublin Ranch Area G located East of Tassajara Road, North of Dublin Blvd., and South of Central Parkway; and WHEREAS, the Developer proposes to build 1,396 for sale units on the four separate parcels, which are subject to the City's Inclusionary Zoning provisions; and WHEREAS, the City staff is currently drafting amendments to the inclusionary zoning program which would increase the number of inclusionary units required to be constructed from 5% to 15% and that would permit in-lieu fees to be paid only to satisfy one-half of the inclusionary zoning obligation; and WHEREAS, an Affordable Housing Agreement is required by both the Eastern Dublin Specific ·. Plan and the inclusionary zoning program; and WHEREAS, the parties disagree over the applicability of the soon to be adopted amendments to the inclusionary zoning program to this Area G project, and in light of this uncertainty, have reached a compromise that is reflected in this agreement; and WHEREAS, the City Council did hold a public hearing on said agreement on March 19, 2002; and WltEREAS, the City Council did hear and use their independent judgment and considered all said reports, recommendations and testimony hereinabove set forth. NOW THEREFORE BE IT RESOLVED THAT THE Dublin City Council does hereby make the following findings and determinations regarding said proposed Affordable Housing Agreement: 1. Said Agreement is consistent with the objectives, policies, and programs specified in the City of Dublin General Plan and the Eastern Dublin Specific Plan. 2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include a Planned Development Rezoning adopted specifically for Area G. 3. Said Agreement is compatible with the uses authorized in, and the regulations prescribed in the Planned Development Rezoning adopted specifically for Area G. 4. Said Agreement satisfies the requirements of Chapter 8.68 of the Dublin Municipal Code, condition 89 of the Planning Commission (PC) Resolution 02-03 (H-l), condition 87 of PC Resolution 02-04 (MH-2), condition 87 of PC Resolution 02-05 (MH-1), and condition 96 of PC Resolution 02-06 (H-2). 5. The applicant has demonstrated that the agreement meets the purposes of Chapter 8.68 and this agreement is authorized pursuant to Section 8.68.080 D of Chapter 8.68. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin City Council does hereby approve the Affordable Housing Agreement between Toll Brothers CAII, LLC and the City of Dublin (attached as Exhibit A) for Tracts 7324, 7325, 7326 & 7327 of Dublin Ranch Area G and authorizes the Mayor to sign it. PASSED, APPROVED AND ADOPTED this 19th day of March, 2002. AYES: Councilmembers McCormick, Oravetz and Zika and Mayor Lockhart NOES: None A~ST: Deputy City Clerk G:\CC-MTGS~2002-qtrlhMARCI-g3-19-02~reso-afford housing.doc (Item 8.1) G:~2002 Reso\CC reso Area G AffHsg Agmt 1.doc 2 I ~ /.:L- WHEN RECORDED RETURN TO: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND THE PAYMENT OF FEES IN-LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS P A 01-009, Toll Brothers (Toll-Dublin, L.L.C.) Dublin Ranch Area G for theMH-1, MH-2, H-1, and H-2 Neighborhoods TffiS AGREEMENT is hereby entered into this _ day of , 2002 by and between the City of Dublin, hereinafter referred to as "City," and Toll-Dublin, LLC, a California limited liability company, hereinafter referred to as "Developer." Recitals 1. Chapter 8.68 of the Dublin Municipal Code contains inclusionary zoning requirements. These requirements were adopted pursuant to Strategy LB. of the City's General Plan Housing Element, the purpose of which is to create affordable housing opportunities in the City of Dublin for very low-, low- and moderate-income households. 2. The City of Dublin adopted these inclusionary zoning regulations recognizing that the cost of new housing is so high that persons with very low-, low- and moderate-incomes are increasingly unable to locate affordable housing in the City. The purpose of the inclusionary zoning regulations is to achieve a balanced community with housing available at all income levels. 3. Accordingly, the regulations currently require that residential projects with 20 or more units/lots contain at least 5% very low-; low- and moderate-income units/lots, in the following proportions 2% very low-income, 2% low-income, and 1 % moderate income. In lieu of constructing such units, a developer of multiple-family housing may currently pay a fee of $1.50 per square foot, which fee was recently doubled from $0.75 per square foot. 4. Pursuant to City Council direction, City staff is currently drafting amendments to the inclusionary zoning program that would increase the number of inclusionary units required to be constructed from 5% to 15% and that would permit in-lieu fees to be paid only to satisfy one- half of the inclusionary zoning obligation. The proposed program revisions would also change the allocations among the various income groups to the following percentages: 30% very-low, Affordable Housing Agreement ~ Toll- Dublin Ranch, Area G '2r y~! 3/!9/~ A;~~;~2~Nt.r~ cyhi.Jh)- A cJ ,":;' " ~ -;:;' /.,-- Ov 20% low, and 50% moderate. At the time that the City Council directed staff to prepare amendments to the inclusionary zoning program, the City Council adopted a resolution notifying developers of the Council's intent to adopt such amendments, the purpose of which was to ensure that subsequently filed applications for permits and approvals were subject to the to-be- adopted amendments to the inclusionary zoning program. 5. Developer is the owner of that real property comprised of four separate parcels known generally as Neighborhoods MHl, MH2, HI and H2 of Dublin Ranch Area G located East of Tassajara Road, north of Dublin Boulevard, south of Central Parkway, and more specifically described in Exhibit A. Developer desires to construct a residential project on four separate parcels (Neighborhoods MHl, MH2, HI and H2), which in the aggregate consist of 1,396 for-sale units (collectively ''the Project") and which are subject to the City's inclusionary zoning provisions. ' 6. The parties disagree over the applicability of the to-be-adopted amendments to the inc1usionary zoning program to the Project and, in light of this uncertainty, have reached a compromise regarding the Project's inclusionary housing obligations that is reflected in this agreement. 7. The purpose of this agreement is to set forth the manner by which Developer satisfies any and all inclusionary housing obligations applicable to the Project under presently adopted and to-be-adopted amendments to the inc1usionary zoning regulations. NOW, THEREFORE, in satisfaction of the requirements of Chapter 8.68 of the Dublin Municipal Code, condition 89 of Planning Commission ("PC") Resolution No. 02-03 (B-1), condition 87 of PC Resolution No. 02-04 (MH-2), condition 87 of PC Resolution No. 02-05 (MH-l), and condition 96 of PC Resolution No. 02-06 (H-2) and in consideration of the City's approval of the Project, Developer and City for themselves and their respective successors and assigns hereby agree as follows: 1. Definitions and Interpretations. Terms used in this Affordable Housing Agreement shall be defined as set forth in Chapter 8.68 of the Dublin Municipal Code. 2. Developer's Affordable Housin!! Obli!!ation. Through its action on January 8,2002 the Planning Commission approved Developer's Project for 1,396 residential units. More specifically, on January 8, 2002, the Planning Commission approved Site Development Review and Tentative Maps for the residential projects, known as Dublin Ranch Area G, Neighborhoods MH~l, MH-2, and H-1, and, on January 20,2002, the Planning Commission approved Site Development Review and a Tentative Map for the residential project, known as a Dublin Ranch Area G, Neighborhood B-2. Based on 1,396 project units, Developer's affordable housing obligation under the proposed amendments is 209 units ("the Inc1usionary Obligations"). Under the proposed amendments, the 209 units would be allocated to the various income groups as follows: (a) 42 very low-income units; (b) 63 low-income units; and (c) 105 moderate-income units. In addition, under the proposed amendments, in-lieu fees may be paid on only half (7.5%) of the units, and the half (7.5%) of the units must be constructed. 2 Affordable Housing Agreement ToIl - Dublin Ranch, Area G Tracts 7324 thru 7327 :3 ~/~ 3. Developer's Compliance with Affordable Housin!! Obli!!ation. Developer will meet its inclusionary zoning obligations for the Project through the construction of one-half of the required Inclusionary, and the payment of in-lieu fees on the remainder. Notwithstanding the terms of the proposed amendments, the Inclusionary Units to be constructed may all be affordable to moderate income households, and none of the Inclusionary Units are required to be affordable to very low-income, and low-income hou~eholds. a Housing Unit Construction. Developer shall construct 105 for-sale Inc1usionary Units affordable to moderate-income households as part of the Project (the "Must-Build Obligation"). Developer shall either construct the 105 Inclusionary Units within the various neighborhoods for which the obligation arises, as set forth in this Section 3.a or construct the Inclusionary Units off-site pursuant to Section 3.b below. Until such time as the Developer elects whether to construct the Inclusionary Units off- site pursuant to section 3.b.i below, the Building Official may only issue building permits within Neighborhoods MH-l, MH-2,and H-l for buildings for which the unit counts total no more than 25% of the units within Neighborhoods MH-l, MH-2, and H-l, respectively. If Developer does not elect to construct the Inclusionary Units off-site, subsequently issued building permits within Neighborhoods MH-l, MH-2, and H-1 shall identify Inclusionary Units. The Must-Build Obligation for individual neighborhoods are set forth in the table below: Neighborhood MH-l MH-2 H-l H-2 Totals Units 200 281 289 626 1396 7.5% Must- Build Obligation 1 - ~) 21 22 47 105 b. Off-site Construction of Units. Developer wishes to construct within NeighborhoodH-2 58 Inclusionary Units to satisfy the Must-Build Obligations of the MH-1, MH-2, and H-l Neighborhoods. The H-2 Neighborhood is made up of a total of eight buildings constructed above two underground parking garages. Developer proposes to construct and complete the eastern parking garage ("Eastern Garag~") and four buildings above it (collectively "the Eastern Buildings") prior to constructing the western parking garage ("Western Garage") and four buildings atop it (collectively '"the Western Buildings"). If Developer elects to satisfy the Must-Build Obligations for Neighborhoods MH-1, MH-2, and H-1through the construction of Inclusionary Units within Neighborhood H-2, Developer shall include 60 of the 105 Inclusionary Units within the Eastern Buildings and the remaining 45 Inclusionary Units within the Western Buildings. The City is willing to permit Developer to satisfy the Must-Build Obligations for Neighborhoods MH-1, MH-2, and H-1 through the construction ofInclusionary Units within Neighborhood H-2, subject to the following conditions: 3 Affordable Housmg Agreement ToJl- Dublin Ranch, Area G Tracts 7324 thru 7327 t/ /n ,. C'7, 1".:- V i. The Developer shall notify the City Manager in writing of his election to meet the must-build obligations for Neighborhoods MH-1, MH-2, and H-1 through the construction of Inclusionary Units within NeighborhoodH-2, Developer shall pay the City a one-time fee of$10,OOO.00 to compensate the City for the costs of administering the following provisions. Inclusionary Units shall be reasonably dispersed throughout Neighborhood H-2. The Inc1usionary Units constructed within the Eastern Buildings shall'include, at a minimum, lnclusionary Units to satisfy Neighborhood H-2's Must-Build Obligation of no fewer than 24 units or 6 units per building. ii.' Following Developer's election to construct within Neighborhood H-2 Inclusionary Units to satisfy the Must-Build Obligations for Neighborhoods MH- 1 ,MH-2, and H-l, the issuance of building permits within Neighborhoods MH- 1, MH-2, and H-l shall be limited as follows to ensure that the construction of lnclusionary Units in Neighborhood H-2 is generally concurrent with the construction of market-rate units: a. Upon issuance of the building permit for the Eastern Garage, the Building Official may issue building permits equal to approximately 40%,ofthe units within Neighborhoods MH-1, MH-2, and B-1. More specifically, the Building Official may issue building permits, for phases 1 through 5 in Neighborhood H-l as shown on the Phasing Map, dated November 13,2001, submitted to the Community Development Department ("the Phasing Map") (totaling 110 units); for phases 1 through 5 in Neighborhood MH-l as shown on the Phasing Map (totaling 80 units); for phases 1 through 7 in Neighborhood MH-2 as shown on the Phasing Map (totaling 105 units). b. Upon completion of the Eastern Garage and the issuance of building permits for the first two of the Eastern Phase Buildings (which shall include and identifyin the building plans a minimum of28 Inc1usionary Units), the Building Official may issue building permits equal to approximately 60% of the units within Neighborhoods MH-l, MH-2, and H-1. More specifically, the Building Official may issue building permits for phases 1 through 8 in Neighborhood H-l as shown on the Phasing Map (totaling 177 units); for phases 1 through 7 in Neighborhood MH-l as shown on the Phasing Map (totaling 120 units); for phases 1 through lOin Neighborhood MH-2 as shown on the Phasing Map (totaling 172 units). c. Upon issuance of building permits for all the Eastern Phase Buildings (which shall include and identify in the building plans a minimum of 60 Inclusionary Units), the Building Official may issue building permits equal to approximately 80% of the units within Neighborhoods MH-1, MH-2, and H-l. More specifically, the Building Official may issue building permits for phases 1 through lOin f\.iiUl Ui1uk nuuSilll;; i"\l;;1 CClUcm Toll- Dublin Ranch, Area G Tracts 7324 thru 7327 S ,;; /'" -m ,...- t..rv Neighborhood H-l as shown on the Phasing Map (totaling 221 units); for phases 1 through lOin Neighborhood MH-1 as shown on the Phasing Map (totaling 176 units); for phases 1 through 12 in Neighborhood Wr-2 as shown on the Phasing Map (totaling 224 units). d. Upon the issuance of a building permit for the Western Garage and the commencement of construction of the Garage, the Building Official may issue the remainder of the building permits within Neighborhoods MH-l, MH-2, and B-1. Should Developer fail to proceed with the construction of the Eastern Garage and Eastern Buildings in a timely manner, as determined by the City in its sole discretion, Developer shall immediately seek from the City appropriate entitlements that include the construction of the remaining 19 Inclusionary Units. The City may enforce this provision by withholding certificates of occupancy and building permits within Neighborhoods MH-1, MH-2, H-1, and H-2, and by any other legal or equitable means. 4. In-Lieu Fees. Developer shall pay in-lieu fees in the amount of$1,399,909 to fulfill the remainder of its Inclusionary Housing obligations. The fee shall be paid as follows. a. MH-l. Developer shall pay $200,620 to the City prior to the issuance of any building permits within Neighborhood MB-l. D. MH-2. Developer shall pay $281,952 to the City prior to the issuance of any building permits within Neighborhood MH-2. ' c. H-1. Developer shall pay $289,543 to the City prior to the issuance of any building permits within Neighborhood H-1. d. B-2. Developer shall pay $627,794 to the City prior to the issuance of any building permits within Neighborhood H-2. 5. Exterior Materials and Exterior Architectural Desim. The exterior materials and exterior architectural design ofthe Inclusionary Units shall be consistent with the Project's market-rate units as reviewed and approved through the Site Development Review by the Planning Commission on January 8, 2002; provided, however, that minor changes to unit size may be approved by the Community Development Director through a Site Development Review waIver. 6. Inclusionarv Unit Location and Size. Inc1usionary Units constructed within the individual neighborhoods shall be dispersed throughout the neighborhood. However, the developer may designate what unit type shall be utilized as inclusionary units; provided that they meet the dispersion requirement as determined by the Community Development Director. Inclusionary Units constructed within Neighborhood H-2 to satisfy the must-build obligations of Neighborhoods MH-1, MH-l, and H-l shall be dispersed throughout Neighborhood H-2. The size of the inclusionary units shall be consistent with the Site Development Review approvals of 5 Affordable Housing Agreement Toll- Dublin Ranch, Area G Tracts 7324 thru 7327 6 ~/~ t> the Planning Commission on January 8, 2002 and January 22, 2002, provided however, that minor changes to unit size may be approved by the Community Development Dirctor through a Site Development Review Waiver. 7. Ensurin!! Affordabilitv. a. Developer shall sell the Inc1usionary Units at sales prices that are affordable to persons with moderate incomes as defined in the City's lnclusionary Zoning Regulations. Units shall be sold to households that qualify as moderate-income households under City's lnclusionary Zoning Regulations and, if Developer chooses, such units may be sold to households that qualify as very low-, low-income households under the City's Inclusionary Zoning Regulations. The maximum sales price shall be adjusted for household size and shall be directly related to the number of bedrooms within the Inclusionary Unit. b. Prior to the issuance of any certificates of occupancy for the lnclusionary Units, agreements subjecting the Inc1usionary Units to resale restrictions for a period of 30 years shall be entered into between the City and the Developer, which agreement shall be recorded against the lnclusionary Units. The agreement shall be executed by the City Manager. The agreement shall further require that the initial buyer of the Inclusionary Unit shall execute an acknowledgement of the existence of the resale restrictions and the applicability of the Inclusionary Zoning Regulations and shall grant the City the right of first refusal on each subsequent sale of the unit. .. Example of Current Sales Prices for Moderate Units. An example of the manner of calculating sale prices for the moderate units (based on current median incomes) is, set forth in Attachment A. Present 2002 income levels for moderate income households are included in Attachment A. These income levels will be revised yearly based on the State Housing and Community Development Department income levels established in accordance with Sections 50079.5 and 50105 of the California Health and Safety Code. 8. Term. This agreement shall be effective until all in-lieu fees have been paid and all Inc1usionary Units are subject to resale restrictions approved by the City, constructed, and sold pursuant to the terms of this agreement. 9. A!n"eement to be Recorded. This Agreement shall be recorded in the Official Records of Alameda County against the property described in Exhibit A, which Agreement shall run with the land until !ermination of the Agreement as provided herein. 10. Asshmments and Transfers. a. Ri!!ht to Assi!!Il. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a , 6 Affordable Housing Agreement Toll - Dublin Ranch, Area G Tracts 7324 thru 7327 7 '13~/ /;-- "Transferee"). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall notbe unreasonably withheld or delayed. If Developer has elected to satisfy Neighborhoods MH-1; MH-2, and H-l ' s must-build obligation through the construction ofInclusionary Units within Neighborhood H-2, Developer and Transferee shall allocate between themselves the rights to the issuance of building permits within the various neighborhoods, consistent with this agreement and in a manner that may be readily administered by the City. b. Aooroval and Notice of Sale. Transfer or Assh?:nment. The City Manager shall consider and decide on any transfer, sale or assignment within thirty (30) days after Developer's notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. c. Effect of Sale. Transfer or Assi!!nment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to section 10.a of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to section 10.a of this Agreement; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval pursuant to sections 10.a and 10.b of this Agreement. 11. Successors. Except as specifically provided in this Agreement, this Agreement shall bind and inure to the benefit of all successors and assigns of the parties and any associates in interest, and their respective directors, officers, agents, servants, and employees, and the successors and assigns of each of them, separately and collectively. Developer shall provide notice to the City of the names and mailing addresses of any such successors or assigns. 12. Hold Harmless. Developer shall hold City, its elective and appointive boards, commission, officers, agents and employees harmless from and against any or all loss, liability, expense, claim, costs, suits, damages of every kind, nature and description directly or indirectly arising from the performance of the obligations or undertakings of Developer pursuant to this Agreement. Developer shall defend City and its elective and appointive boards, commission, officers, agents and employees from any suits or actions at law or in equity for damages caused or alleged to have been caused, by reason of any of the obligations or undertakings of Developer pursuant to this Agreement. It is further provided that this hold harmless agreement shall apply 7 Affordable Housing Agreement Toll - Dublin Ranch, Area G Tracts 7324 thru 7327 d/ 0' ~?I "'" It)!- to all damages and claims for damages for every kind suffered, or alleged to have been suffered, by reason of any of the obligations or undertakings of Developer pursuant to this Agreement. 13. Enforcement. If the Developer defaults in the performance or observance of any covenant, condition, restriction or obligation of the Developer as set forth in this Agreement, and such default remains uncured for a period of thirty (30) days after notice thereof is given by the City, the City may take anyone or more of the following steps: a. By specific performance or other action or proceeding atlaw or in equity, require the Developer to perform its obligations under this Agreement or enjoin any acts or things which may be unlawful orin violation of the rights of the City hereunder. b. Take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants, conditions and restrictions of the Developer under this Agreement.. If Developer transfers any portion of the proj ect in bulk and a transferee defaults under this Agreement, the City shall exercise the foregoing remedies only with respect to the defaulting transferee and its portion of the proj ect; and so long as Developer has not otherwise defaulted hereunder, the City shall not seek to exercise any rights and remedies against Developer. 14. Attornevs' Fees. Iflegal action is necessary to enforce any provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and legal costs. 15. Amendments. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in interest and duly recorded in the Official Records of the County of Alameda, California. In the event that Developer is unable to perform its obligations under Section 3.b of this Agreement due to significant changes in circumstances, such as unanticipated delays in construction within any of the neighborhoods, the City shall confer with Developer in an effort to reach a mutually acceptable resolution, consistent with the terms of the affordable housing conditions in the tentative map approvals for Neighborhoods MH-1, MH-2, H-l, and H-2. If an agreement is reached,' this Agreement shall be amended accordingly. Developer shall pay the City its reasonable costs, including attorneys' fees, incurred in such negotiations and in amending this Agreement, and Developer shall, if requested by the City, provide the City with a reasonable deposit to cover the City's reasonable costs, upon Developer initiating such negotiations. 16. Corporate Authoritv. If either party is a corporation, each individual signing this Agreement on behalf of that corporation represents and warrants that each of them is duly authorized to execute and deliver this Agreement on behalf of the corporation and that the Agreement is binding on the corporation in accordance with its terms. B Affordable Housing Agreement Toll- Dublin Ranch, Area G Tracts 7324 thru 7327 9 ;? , .cz1 I' /} I' ",,-- CITY OF DUBLIN Dated: By: Mayor Attest: City Clerk TOLL-DUBLIN, L.L.C. Dated: By: Jon Paynter, Assistant Vice President ** Applicant's Signature shall be notarized prior to returning signed agreement to the City of Dublin Planning Department. G:\pa\O 1-009\affordable hsg,agmt_ 031102 9 Affordable Housing Agreement Toll- Dublin Ranch, Area G Tracts 7324 thru 7327