HomeMy WebLinkAbout7.3 Arroyo Vista Redevelopment Project
CITY CLERK
File # D~[Q](:)]-ffi~
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 3, 2007
SUBJECT:
Exclusive Negotiating Rights Agreement (ENRA) with the City of
Dublin, the Housing Authority of the City of Dublin, the Housing
Authority of the County of Alameda, Eden Housing, Inc., and
Citation Homes Central for the Arroyo Vista Redevelopment Project
Report Prepared by Joni Pattillo, Assistant City Manager
ATTACHMENTS:
Exclusive Negotiating Rights Agreement
RECOMMENDATION: 1)
1#2)
3)
Authorize the Mayor to sign the ENRA on behalf of the City of
Dublin.
Direct Staff to include a reserve in the Inclusionary Zoning In
Lieu Fee Fund for a future loan of$I,500,000 as a low interest
loan to Eden Housing for the affordable rental units.
Direct Staff to include an appropriation from the Inclusionary
Zoning In Lieu Fee Fund in the Amount of$250,000 for
Transactional Cost in the Fiscal Year 2007-2008 Budget.
FINANCIAL STATEMENT:
If approved, this request would require an additional appropriation,
in the amount of$I,750,000, from the Inclusionary Zoning In Lieu
Fee Funds. Out ofthe $1,750,000 appropriation request, $1,500,000
is in the form a low interest loan to Eden Housing for the affordable
rental units and the balance of $250,000 is reimbursable to the City
upon transfer of property to Eden and/or Citation by the developers.
DESCRIPTION:
Back2:found
At the July 24,2006 Dublin Housing Authority meeting, the Dublin Housing Commission determined that
the rehabilitation of the Arroyo Vista public housing complex was not financially feasible and decided to
redevelop the site. The Dublin Housing Commission then selected, based on a Request for Qualification
(RFQ) process, Eden Housing and Citation Homes, a non-profit and for-profit developer, respectively, as
the development team, and authorized staff to negotiate appropriate documentation with the developers
for Commission approval.
COPY TO: Chris Gouig, Executive Director of HAC A
Linda Mandolini, Executive Director of Eden Housing
Charles McKeag, V ice-President of Citation Homes Central
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ITEM NO.
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City Staff has been meeting with Dublin Housing Authority Staff, Housing Authority of Alameda County
and representatives of the developers to negotiate an Exclusive Negotiating Rights Agreement (ENRA).
The ENRA was prepared by the City's Attorney, Meyers Nave, and is attached. The developers have
agreed to all the terms listed in the ENRA. This item has also been considered at the Dublin Housing
Authority Meeting prior to tonight's City Council Meeting, and will be considered by the Alameda
County Housing Authority on April 11, 2007.
The purpose of the ERNA is to provide Citation and Eden with assurances that the Dublin Housing
Authority will negotiate exclusively with them for the period of the ERNA and to assure the Authority and
City that the developers will pay for the predevelopment processing costs of the Authority and City, as
contemplated in the RFQ. Finally, the ERNA outlines the terms for a Disposition and Development
Agreement (DDA) which the parties will negotiate. The DDA would be the formal agreement for transfer
of the property once Housing and Urban Development (HUD) approves the DemolitionlDisposition
Application.
DISCUSSION AND ANALYSIS:
The basic terms of the ENRA are as follows:
1. The proposed development concept for the property includes approximately 405 housing units,
consisting of 150 affordable rental units to replace the existing units, 45 additional affordable units
which is made up of29 multi-family rental units and 16 for-sale units, 210 market-rate for sale
units, and a community center and child care facility. As proposed, certain aspects of the
developers' project would not be entirely consistent with the Inclusionary Zoning Ordinance. There
are three areas of variance from the Inclusionary Zoning Ordinance:
Affordability
The developer is proposing more very low income units and no low income units. The
Inclusionary Zoning Ordinance sets the minimum for affordability and the developer is
proposing deeper affordability for this project.
Location
The very low income units would not be spread throughout the project but because the site
is not very large none of the units will be too far from the rest of the development.
Bedroom Size
The current proposal is silent about the requirements of the ordinance regarding bedroom
sizes. The condition relating to bedroom in the Inclusionary Zoning Ordinance states that
the same proportion of bedrooms be reflected in the Inclusionary units as are in the Market
Rate Units.
As with other development project, the Council has the discretion to waive the requirements if the
developer explains how its proposal meets the purposes of the Inclusionary Zoning Ordinance.
2. The affordable units will remain affordable for at least 55 years.
3. Citation Homes will pay $12 million for the property: Eight million will be used by Eden Housing
to support development of the affordable rental units; $3 million will go to the Alameda County
Housing Authority to support the processing of the HUD approvals and conveyance of the
property; and $1 million will be applied to relocation costs including the relocation consultant,
securing vacant units, moving expenses, utility connections, relocation costs of the child care
center, legal expenses, etc. Payments on the $12 million will be made at the completion of certain
milestones.
Page 2 of3
4. The City of Dublin will provide a $1.5 million deferred payment, low interest loan to Eden
Housing for the affordable rental units. The City Attorney's Office has indicated that the City's
Inclusionary Zoning In Lieu Fee Fund monies may be expended for the purpose of providing
affordable housing. The redevelopment of the Arroyo Vista Project qualifies because the money
from the Inclusionary Zoning In Lieu Fee Fund will assist with development of newer housing,
which will last longer than the existing public houses, as well as provide additional affordable
units.
5. The Alameda County Housing Authority will provide up to 150 Section 8 vouchers for relocation
of eligible residents.
6. The City of Dublin's and the Dublin Housing Authority's Transactional Costs are to be paid by the
developers up to a maximum of $250,000. If the total Transactional Costs incurred by the City and
Authority exceed $250,000, the City will pay for such costs from the City's Inclusionary Zoning In
Lieu Fee Funds, provided that, upon transfer of property to Eden and or Citation, Citation and
Eden jointly and severally agree to reimburse the City for such costs up to the amount of $250,000
so that the aggregate amount of Transactional Costs paid by Citation and Eden does not exceed
$500,000. Citation Homes will make a deposit of $50,000 to City of Dublin. The developers will
pay the invoices of the City's and the Housing Authority's consultants and attorneys when they are
submitted. Ifthe invoices are not paid within 30 days, the City will draw on the $50,000 to pay the
invoices and the developers will replenish the deposit up to the $50,000 amount.
7. The developers will make the customary deposits with the City of Dublin for the National
Environmental Protection Act (NEP A) and California Environmental Quality Act (CEQA)
environmental reviews and the processing of the land use entitlements.
8. In the event the developer defaults on the ENRA, liquidated damages in the amount of $150,000
are to be paid by the developer.
9. The parties have agreed to complete a Disposition and Development Agreement, binding on the
parties, by July 3, 2007. That Agreement will come back to the City of Dublin and the other
applicable parties for approval.
10. Exhibit B of the ENRA reflects the proposed schedule of milestones and developer payments. The
dates are subject to change as the processing ofthe project gets underway.
11. The term of the ENRA is 270 days with another 180 days that can be approved by either the City
Manager or the Executive Director of the Dublin and Alameda County Housing Authorities.
The ENRA, or a summary of it, will be attached to the Dublin Housing Authority's Demolition!
Disposition Application to Housing and Urban Development (HUD) as evidence of the scope of the
redevelopment project.
RECOMMENDATION:
Staff recommends that City Council 1) Authorize the Mayor to sign the ENRA on behalf of the City of
Dublin; 2) Direct Staffto include a reserve in the Inclusionary Zoning In Lieu Fee Fund for a future loan
of $1 ,500,000 as a low interest loan to Eden Housing for the affordable rental units; 3) Direct Staffto
include an appropriation from the Inclusionary Zoning In Lieu Fee Fund in the amount of $250,000 for
Transactional Cost in the Fiscal Year 2007-2008 Budget.
Page 3 of3
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EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT
by and among
THE CITY OF DUBLIN,
THE HOUSING AUTHORITY OF THE CITY OF DUBLIN,
THE HOUSING AUTHORITY OF THE COUNTY OF ALAMEDA,
EDEN HOUSING, INC.
and
CITATION HOMES CENTRAL
(Arroyo Vista Redevelopment)
1
ATTACHMENT 1
7,'3 Lf-3-01
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THIS EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT (this
"Agreement") is entered into effective as of , 2007 ("Effective Date")
by and among the City of Dublin, a municipal corporation ("City"), the Housing
Authority of the City of Dublin, a public body, corporate and politic ("Authority"), the
Housing Authority of the County of Alameda, a public body, corporate and politic
("HACA"), Eden Housing, Inc., a California nonprofit public benefit corporation
("Eden") and SCS Development Company, a California corporation, dba Citation Homes
Central ("Citation"). Eden and Citation are hereinafter referred to collectively as
"Developer." City, Authority, HACA, Eden and Citation are hereinafter referred to
collectively as the "Parties."
RECITALS
A. The Authority seeks development of the Authority-owned property (the
"Property") consisting of approximately 22.9 acres located near the intersection of Dougherty
Road and directly across the Street from Camp Parks Military Reservation in the City of Dublin,
known as Alameda County Assessor's Parcel Nos. 941-0007-001-07, and more particularly
described in Exhibit A attached hereto and incorporated herein.
B. The Property is currently developed with 150 public housing units and a
children's day care center (collectively, the "Existing Housing"). The Authority has determined
that in order to ensure that the Existing Housing meets current standards, substantial
rehabilitation is necessary and that it is economically infeasible to undertake such rehabilitation
given the limited revenue generated by tenant rents and subsidies provided to the Authority by
the United States Department of Housing and Urban Development ("HUD"). Accordingly, the
Authority issued a Request for Qualifications ("RFQ") inviting submissions from developers
interested in redeveloping the site with single and multi-family housing affordable to households
with a range of income levels.
C. In response to the Authority's RFQ, Developer submitted a proposal to develop
the Property as a mixed-income development consisting of single-family, multi-family and senior
housing and community facilities and amenities (the "Project").
D. The Authority's Commission (the "Commission") has directed staff to pursue
negotiations with Developer regarding Developer's proposed development of the Project on the
Property. The Commission has authorized the preparation of an agreement granting Developer
exclusive rights to negotiate for the purpose of reaching agreement on a disposition and
development agreement ("DDA") whose terms and conditions would govern the conveyance of
the Property and the development of the Project.
E. The City Council ofthe City of Dublin ("City Council") has authorized the use of
Inclusionary Zoning In Lieu Fees to facilitate the Project because the Project will replace the
Existing Housing and produce additional affordable units in excess of those required by the
City's Inclusionary Zoning Ordinance, thus improving and extending the life of affordable
housing in the City.
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F. Pursuant to an existing contractual arrangement, HACA provides staff and
support services to the Authority. HACA has agreed to make Section 8 Housing Choice
V ouchers available to the Authority to assist the residents of the Existing Housing to relocate to
other housing.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows.
1. Disposition and Development Agreement. The Parties shall use their best efforts to
successfully negotiate a DDA which shall describe the terms and conditions governing
disposition of the Property and development of the Project. The Parties agree that the DDA shall
include, without limitation, the following terms; provided however, nothing herein is intended to
or shall limit the City's discretionary authority to approve, deny or condition specific land use
entitlements for the Project:
1.1 Financial Terms.
1.1.1 Purchase Price. The purchase price for the Property will be $12 million
("Purchase Price"). This sum shall consist of the following three components: (i) Citation
will provide $8 million in equity contributions to be used as a subsidy for the replacement
housing units to be developed by Eden; (ii) Citation will provide $3 million (the "Transaction
Allocation") to HACA to support the processing, on behalf of the Authority, of necessary HUD
approvals and the conveyance of the Property; and (iii) Citation will pay $1 million (the
"Relocation Contribution") to Authority to cover costs associated with relocation of existing
residents prior to disposition of the Property. Exhibit B attached hereto sets forth preliminary
Project milestones and Developer payments.
1.1.2 Payment of Purchase of Price. Citation shall pay the Purchase Price in
accordance with the following schedule:
(i) Upon execution ofthis Agreement, Citation will make a nonrefundable
deposit to City in the amount of Fifty Thousand Dollars ($50,000) (the "Initial
Deposit"). City shall place the Initial Deposit in a City-managed cost-recovery account
to secure the payment of certain legal and consulting fees that have been or will be
incurred by City and/or Authority in connection with the Project. At close of escrow for
conveyance of the Property, any remaining balance of the Initial Deposit will be credited
toward the Purchase Price.
(ii) Upon City's approval of a parcel map, a tentative map and/or a vesting
tentative map for the Project (hereinafter, collectively, "Tentative Map") Citation will
pay: (i) the sum of Two Hundred Fifty Thousand Dollars ($250,000) to Authority, and
(ii) the sum of One Million Five Hundred Thousand Dollars ($1,500,000) to HACA.
These sums shall be credited toward the Purchase Price, and shall be nonrefundable
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4 2.1
unless Authority fails to secure HUD approval of the disposition of the Property, relocate
all residents of the Existing Housing, and transfer title to the Property to Developer.
(iii) Upon HUD approval of the disposition ofthe Property, Citation will pay:
(i) Seven Hundred Thousand Dollars ($700,000) to Authority, and (ii) One Million Five
Hundred Thousand ($1,500,000) to HACA. These sums shall be credited toward the
Purchase Price, and shall be nonrefundable unless Authority fails to relocate all residents
of the Existing Housing and transfer title to the Property to Developer.
(iv) Upon City's approval of Final Subdivision Map(s) for the Property,
Citation will pay the sum of Eight Million Dollars ($8,000,000) to City or Authority, as
appropriate.
1.2 City Loan. The City will provide a deferred-payment, low-interest loan to Eden in
the amount of $1.5 million to support development of the affordable rental units.
1.3 Proiect. The proposed development concept for the Project includes the
subdivision of the Property into three (3) separate legal parcels and the development of
approximately 405 housing units consisting of: (i) 150 affordable rental housing units (the
"Replacement Units") that will replace the Existing Housing; (ii) 45 additional affordable units
(the "Additional Affordable Units"); (iii) 210 market-rate for-sale units (the "Market Rate
Units"); (iv) open space; and (v) community amenities including a community center and
childcare facility. The Replacement Units will include 100 multi-family rental units and 50
senior rental apartments. The Additional Affordable Units will include 29 multi-family rental
units and 16 for-sale units. Citation will be responsible for development of the 226 for-sale
units. Eden will be responsible for development of the 179 multi-family and senior rental units.
The Parties acknowledge that the development concept is preliminary and remains subject to
change as more detailed plans are formulated during the formal planning process.
1.4 Affordability Requirements. The Replacement Units and the Additional
Affordable Units will be subject to recorded regulatory restrictions that will (i) require the rental
units to be offered for rent and occupancy by extremely low-, very low-, and low-income
households in accordance with the schedule set forth below for a term of at least fifty-five (55)
years, and (ii) impose household income eligibility and resale price restrictions on the affordable
for-sale units in accordance with the schedule set forth below for a term of at least fifty-five (55)
years. The affordability requirements for the Project shall, at minimum, meet the requirements of
the City's Inclusionary Zoning Ordinance. All of the Replacement Units will be affordable to
households of extremely low-, very low-, or low-income, and shall be targeted to the income
levels indicated below.
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SENIOR MULTI-F AMIL Y RENTAL HOUSING
Number of Units by Unit Size and Targeted Area Median Income (AMI) Levels
30% AMI 40% AMI 50% AMI Sub- Total
Manager's Total
Unit
1 50
I-Bedroom 5* 8* 36 49
TOTAL: 50 Senior Housing Rental Units
* Targeting below 50% AMI shall be subject to HUD approval.
MULTI-F AMIL Y RENTAL HOUSING
Number of Units by Unit Size and Targeted Area Median Income (AMI) Levels
30% 40% AMI 50% AMI 60% AMI Sub-Total Manager's Total
AMI Unit
I-Bedroom 3 2 3 2 10 N/A 10
2-Bedroom 3 27 33 6 69 1 70
3-Bedroom 3 11 15 5 34 N/A 34
4- Bedroom 4 6 5 0 15 N/A 15
Total 1 46 56 13 128 1 129
3
TOTAL: 129 Multi-Family Rental Units
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SINGLE-F AMIL Y FOR-SALE TOWNHOMES
Number of Units by Unit Size and Targeted
Area Median Income (AMI) Levels
80-120% AMI Market-Rate Total
3-Bedroom
16
N/A
16
3 & 4-Bedroom
N/A
210
210
Total
16
210
226
TOTAL: 226 Single-Family For-Sale Townhomes
1.5 Relocation. HACA and Authority shall develop and implement a relocation plan
(the "Relocation Plan") pursuant to which all eligible residents of the Existing Housing will be
provided relocation assistance and benefits in compliance with all applicable state and federal
laws and regulations. The Parties shall cooperate to identify resources that may be available for
this purpose. HACA will apply to HUD for Section 8 Housing Choice Vouchers. The proceeds
of Developer's Relocation Contribution shall be used to defray the costs City, Authority or
HACA incur in connection with the development and implementation of the Relocation Plan,
including without limitation, costs incurred in connection with the application for and use of
Section 8 Housing Choice Vouchers, up to a maximum amount equal to the Relocation
Contribution.
1.6 City At>provals. Developer shall be responsible for obtaining all approvals
required by City for the Project in accordance with City's standard application process for
discretionary land use entitlements, including payment for all of City's costs of processing such
approvals. Nothing set forth herein shall be construed as a grant of any such approvals, or as an
obligation on the part of City to grant such approvals.
1.7 AS-IS Conveyance. Neither the Authority nor the City will have responsibility for
environmental remediation of any kind. Neither the Authority nor the City make any
representations or warranties regarding the physical condition of the Property or its suitability for
the Proj ect.
2. Develot>er's Exclusive Right to Negotiate With Authority. Authority agrees that it will
not, during the term of this Agreement, directly or indirectly, through any officer, employee,
agent, or otherwise, solicit, initiate or encourage the submission of bids, offers or proposals by
any person or entity with respect to the acquisition of any interest in the Property or the
development of the Property, and Authority shall not engage any broker, financial adviser or
consultant to initiate or encourage proposals or offers from other parties with respect to the
disposition or development of the Property or any portion thereof. Furthermore, Authority shall
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not, directly or indirectly, through any officer, employee, agent or otherwise, engage in
negotiations concerning any such transaction with, or provide information to, any person other
than Developer and its representatives with a view to engaging, or preparing to engage, that
person with respect to the disposition or development of the Property or any portion thereof.
3. Term. The term ofthis Agreement (the "Term") shall commence on the Effective Date,
and shall terminate two hundred and seventy (270) days thereafter, unless extended or earlier
terminated as provided herein. The Authority's Executive Director, the City Manager, and the
Executive Director of HAC A are authorized to extend the Term by an additional one hundred
and eighty (180) days upon the written agreement of the Parties without further approval of their
respective governing boards.
4. Development Costs; Design Review. Except as otherwise expressly stated herein,
Developer will be responsible for all Project development costs, including without limitation all
design, development, demolition and construction costs, the cost of all permits, impact and
processing fees, and the cost of all on-site and off-site public improvements required in
connection with the Project. The DDA will specify the schedule for Developer's submission and
City and Authority review of design and construction drawings and plans.
5. Planning and Entitlement Costs; Environmental Review. Except as otherwise expressly
stated herein, Developer shall be responsible for payment of all costs incurred by Authority,
HAC A and City in connection with the environmental review requirements associated with the
disposition of the Property and development ofthe Project pursuant to the California
Environmental Quality Act ("CEQA") and National Environmental Policy Act ("NEP A").
Exhibit C attached hereto includes a listing of anticipated planning entitlements required for the
Project.
Citation and Eden will establish and fund a standard cost recovery account with the
City's Planning Department to ensure prompt payment of all City costs associated with
processing CEQA and NEP A clearance documents, Tentative Maps, General Plan Amendment,
and zoning amendments for the project. Citation and Eden acknowledge that they will be
required to place a deposit into the cost recovery account (in an amount to be determined by the
Planning Director) prior to initiating formal planning activities for the project. Citation and
Eden will be jointly responsible for payment of all planning and entitlement costs and fees as
they are incurred.
6. Ext>enses. Citation and Eden will be responsible for paying up to Five Hundred
Thousand Dollars ($500,000) (the "Transactional Expense Payment") to cover City and
Authority legal, consulting and other costs and expenses incurred commencing on August 1,
2006 in connection with the negotiation and preparation of this Agreement and the DDA and
other transactional activities associated with the disposition and development of the Property
("Transactional Costs"). The Transactional Expense Payment shall be in addition to the
Purchase Price and the sums payable pursuant to Sections 4 and 5. The Transactional Expense
Payment shall be paid as follows:
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(i) Cost Recovery Account. The City shall establish a separate cost-
recovery account (the "Transactional Cost Account") to manage payment of all
Transactional Costs up to a maximum of$250,000. If the total Transactional Costs
incurred by the City and Authority exceed $250,000, the City will pay for such costs
with funds from the City's Inclusionary Zoning In Lieu Fee Fund; provided however,
upon transfer of property to Eden and/or Citation, Citation and Eden jointly and
severally agree to reimburse the City for such additional costs up to the amount of
$250,000 so that the aggregate amount of Transactional Costs paid by Citation and
Eden does not exceed $500,000.
(ii) Payment of Transactional Costs. As Transactional Costs are incurred,
City and Authority shall submit invoices to Eden. Eden and Citation shall be jointly
responsible for payment of such invoices, and shall ensure payment in full within 30
days after receipt.
(iii) Use of Funds in Cost Recovery Account. The Initial Deposit described
in Section 1.1.2(i) above will be deposited into the Transactional Cost Account to
serve as security to ensure prompt payment of City and Authority Transactional Costs.
If any invoice for Transactional Costs remains unpaid 30 days following transmittal to
Eden, then City or Authority, as applicable, may draw funds from the Transactional
Cost Account, and Citation and Eden shall be required to replenish the Transactional
Cost Account up to the amount of $50,000 within 30 days. At close of escrow for
conveyance of the Property, any remaining balance of the Initial Deposit shall be
credited toward the Purchase Price.
7. Good Faith Efforts to Negotiate DDA. The Parties shall diligently and in good
faith pursue negotiation of a DDA. Developer expressly acknowledges that a DDA
resulting from negotiations contemplated hereby shall become effective only ifthe DDA
is approved by the Commission following notice and hearing as required by applicable
law and compliance with all other requirements of law, including without limitation
CEQA. Developer further acknowledges that disposition ofthe Property is subject to the
approval ofHUD and compliance with NEPA. Without limiting the generality of the
foregoing, this Agreement does not impose a binding obligation on Authority to convey
the Property to Developer, nor does it obligate the Authority or the City to grant any
approvals or authorizations required for the Proj ect.
The Parties agree that they shall use good faith efforts to seek Commission
approval of a DDA that includes the terms set forth in this Agreement by July 3,2007.
The Parties acknowledge that approval and execution of the DDA will precede formal
approval and adoption of environmental clearance and entitlements necessary for the
development of the Project, and the Parties agree that the DDA will provide that
conveyance of the Property will be expressly contingent upon (i) the certification by the
City Council and, if necessary, the Commission, of an Environmental Impact Report and
any other environmental documents required for the Project pursuant to CEQA and
NEP A, and (ii) City Council and Commission approval, as applicable, of all discretionary
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entitlements for the Project, including but not limited to Tentative Maps, PD Zoning
permits, and a General Plan Amendment.
8. Developer's Studies; Right of Entry. During the Term, Developer shall use its
best efforts to prepare, at Developer's expense, any studies, surveys, plans, specifications
and reports ("Developer's Studies") Developer deems necessary or desirable in
Developer's sole discretion, to determine the suitability of the Property for the Project.
Such studies may include, without limitation, title investigation, relocation plans,
marketing, feasibility, soils, seismic and environmental studies, financial feasibility
analyses and design studies. Developer shall be responsible for obtaining Authority's
advance written permission from Authority's Executive Director for access to the
Property as may be necessary to prepare the Developer's Studies. In connection with
entry onto the Property, Developer shall and hereby agrees to indemnify, defend (with
counsel approved by Authority and City) and hold harmless the Indemnitees (defined in
Section 16) from and against all Claims (defined in Section 16) resulting from or arising
in connection with entry upon the Property by Developer or Developer's agents,
employees, consultants, contractors or subcontractors.
Authority may require Developer to execute a right of entry agreement satisfactory
to Authority prior to entry onto the Property. The Authority's Executive Director shall
have authority to sign such agreement without further approval of the Commission.
Developer's inspection, examination, survey and review of the Property shall be at
Developer's sole expense. Developer shall provide Authority with copies of all reports
and test results within ten (10) days following completion of such reports and testing,
whether or not such reports and test results are completed prior to or after the expiration
or earlier termination of this Agreement.
Developer shall repair, restore and return the Property to its condition immediately
preceding Developer's entry thereon at Developer's sole expense. Developer shall at all
times keep the Property free and clear of all liens and encumbrances affecting title to the
Property. Developer's indemnification obligations, obligations to provide reports and
studies, and obligations to discharge liens that attach to the Property as set forth in this
Section 8 shall survive the expiration or earlier termination of this Agreement.
9. Authority's Reports and Studies. Within 15 days following the Effective Date, Authority
and City shall make available to Developer for review or copying at Developer's expense all
nonprivileged studies, nonconfidential surveys, plans, specifications, reports, and other
documents concerning the physical condition of the Property that Authority or City has in its
possession or control. Studies or documents prepared by Authority or City and their respective
agents solely for the purpose of negotiating the terms of a DDA are excluded from this
requirement.
10. Relationship of Parties. The Parties agree that nothing in this Agreement is intended to or
shall be deemed or interpreted to create among them the relationship of lessor and lessee, of
buyer and seller, or of partners or joint venturers.
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11. Confidentiality; Dissemination of Information. During the Term, each Party shall obtain
the consent of the other Parties prior to issuing or permitting any of its officers, employees or
agents to issue any press release or other information to the press with respect to this Agreement;
provided however, no Party shall be prohibited from supplying any information to its
representatives, agents, attorneys, advisors, financing sources and others to the extent necessary
to accomplish the activities contemplated hereby so long as such representatives, agents,
attorneys, advisors, financing sources and others are made aware of the terms of this Section.
Nothing contained in this Agreement shall prevent any Party at any time from furnishing any
required information to any governmental entity or authority pursuant to a legal requirement or
from complying with its legal or contractual obligations.
12. Termination. This Agreement may be terminated at any time by mutual consent of the
Parties. Authority shall have the right to terminate this Agreement upon its good faith
determination that Developer is not proceeding diligently and in good faith to carry out its
obligations pursuant to this Agreement. Authority shall exercise such right by providing at least
thirty (30) days' advance written notice to Developer which notice shall describe the nature of
Developer's default hereunder. Notwithstanding the foregoing, if Developer commences to cure
such default within such 30-day period and diligently prosecutes such cure to completion within
the earliest feasible time but not later than thirty (30) days following the date of the notice, this
Agreement shall remain in effect. Developer shall have the right to terminate this Agreement,
effective upon 30 days' written notice to Authority that Developer is unable to obtain necessary
approvals, rights or interests or has determined the Project to be financially or physically
infeasible and City and Authority have reviewed and agreed with Developer's determination.
Notwithstanding the foregoing, during the 30-day period following Developer's notice, City and
Authority shall have the right to revise the proposed Project to address the Developer's
determination of infeasibility.
13. Liquidated Damages. THE PARTIES AGREE THAT IF CITY OR AUTHORITY
TERMINATE THIS AGREEMENT DUE TO A DEVELOPER DEFAULT, OR IF
DEVELOPER TERMINATES THIS AGREEMENT FOR ANY REASON OTHER
THAN (i) CITY'S, AUTHORITY'S OR HACA'S DEFAULT HEREUNDER, OR (ii)
FACTS OR CIRCUMSTANCES THAT ARE BEYOND DEVELOPER'S CONTROL
RENDER DEVELOPMENT OF THE PROJECT INFEASIBLE, INCLUDING BYT
NOT LIMITED TO THE FOLLOWING: (A) THE FAILURE OR REFUSAL OF ANY
PUBLIC AGENCY TO APPROVE ENTITLEMENTS ALLOWING DEVELOPMENT
OF THE PROPERTY AS DESCRIBED IN SECTION 1.2; (B) THE FAILURE OR
REFUSAL OF THE CITY OR AUTHORITY, AS APPLICABLE, TO APPROVE AND
EXECUTE A DDA FOR THE PROJECT; (C) THE FAILURE OR REFUSAL OF HUD
TO APPROVE THE DISPOSITION OF THE PROPERTY; (D) LEGAL ACTION
INSTITUTED BY EXISTING RESIDENTS OR OTHER THIRD PARTIES; (E) THE
DISCOVERY OF HAZARDOUS MATERIALS ON THE PROPERTY; AND (F) THE
DISCOVERY OF ENDANGERED SPECIES OR OTHER ENVIRONMENTAL
CONSTRAINTS ON THE PROPERTY, CITY/AUTHORITY SHALL RECOVER
FROM DEVELOPER AN AMOUNT EQUAL TO ONE HUNDRED FIFTY
THOUSAND DOLLARS ($150,000) WITHOUT DEDUCTION OR OFFSET, AS
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LIQUIDATED DAMAGES. THE PARTIES AGREE THAT THE FOREGOING IS A
REASONABLE SUM CONSIDERING ALL CIRCUMSTANCES EXISTING ON THE
EFFECTIVE DATE, INCLUDING THE DIFFICULTY OR IMPRACTICALITY OF
DETERMINING THE CITY'S AND THE AUTHORITY'S ACTUAL DAMAGES.
SUCH DAMAGES WOULD INCLUDE, WITHOUT LIMITATION, THE EXPENSE
OF CONTINUING THE OWNERSHIP OF THE PROPERTY, THE COST OF
SOLICITING AND NEGOTIATING WITH A NEW DEVELOPER, AND THE
POSTPONEMENT OF RECEIPT OF TAX REVENUES. SUCH LIQUIDATED
DAMAGES SHALL BE CITY'S AND AUTHORITY'S EXCLUSIVE REMEDY, AND
CITY AND AUTHORITY SHALL ACCEPT SUCH LIQUIDATED DAMAGES IN
PLACE OF ANY OTHER RIGHTS OR REMEDIES EITHER MAY HAVE AGAINST
DEVELOPER, INCLUDING, BUT NOT LIMITED TO, ANY RIGHT TO SPECIFIC
PERFORMANCE OR OTHER DAMAGES, EXCEPT FOR ANY INDEMNITIES
DEVELOPER HAS PROVIDED UNDER THE TERMS OF THIS AGREEMENT.
THE PARTIES ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY
THEIR SIGNATURES BELOW:
Eden Initials:
City Initials:
HACA Initials:
Citation Initials:
Authority Initials:
14. Effect of Termination. Upon termination as provided herein, or upon the expiration of
the Term and any extensions thereof without the Parties having successfully negotiated a DDA,
this Agreement shall forthwith be void, and there shall be no further liability or obligation on the
part of any of the Parties or their respective officers, employees, agents or other representatives;
provided however, Developer's obligation to pay costs incurred through the date of termination
for planning activities pursuant to Section 5 and Transactional Costs pursuant to Section 6, and
the provisions of Section 11 (Confidentiality), and Section 16 (Indemnification) shall survive
such termination. Provided further, that upon termination or expiration of this Agreement (i)
Developer shall deliver to Authority, within 15 days of termination or expiration, all of the
Developer's Studies not previously provided to Authority and (ii) within 30 days oftermination
or expiration, City shall deliver to Developer the balance (if any) of any funds owed to Developer
pursuant to this Agreement.
15. Notices. Except as otherwise specified in this Agreement, 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;
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D
(ii) certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered on receipt if delivery is confirmed by a return
receipt;
(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; or
(iv) facsimile transmission, in which case notice shall be deemed delivered upon
transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-
class or certified mail or by overnight delivery, or (b) a transmission report is generated
reflecting the accurate transmission thereof. Any notice given by facsimile shall be
considered to have been received on the next business day ifit is received after 5:00 p.m.
recipient's time or on a nonbusiness day.
Authority:
Housing Authority of the City of Dublin
c/o Housing Authority of the County of Alameda
22941 Atherton Street
Hayward, CA 94541
Facsimile: 510-727-8554
Attn: Dublin Housing Authority Executive Director
City:
City of Dublin
100 Civic Plaza.
Dublin, CA 94568
Facsimile: (925) 833-6651
Attn: City Manager
HACA:
Housing Authority of the County of Alameda
22941 Atherton Street
Hayward, CA 94541
Facsimile: 510-727-8554
Attn: Executive Director
Developer:
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544
Facsimile: 510-582-6523
Attn: Executive Director
Citation Homes Central
404 Saratoga Avenue, Suite 100
Santa Clara, CA 95050
Facsimile: (408) 985-6071
Attn: Charles G. McKeag, Vice President
Land Acquisition and Development
12
/3 ~I
16. Indemnification. Developer hereby covenants to indemnify, hold harmless and
defend the Authority, the City, and HACA, and their respective elected and appointed
officials, officers, agents, representatives and employees (all of the foregoing,
"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 oflitigation) (all ofthe foregoing,
collectively hereinafter "Claims") arising out of any act of negligence, misfeasance or
willful misconduct of Developer in connection with this Agreement or the activities.
contemplated hereby. Developer shall have no indemnification obligation with respect to
the negligence, misfeasance or willful misconduct of City, HACA or Authority.
Developer's indemnification obligations set forth in this Section 16 shall survive the
expiration or earlier termination of this Agreement.
17. Severability. If any term or provision of this Agreement or the application thereof
shall, to any extent, be held to be invalid or unenforceable, such term or provision shall
be ineffective to the extent of such invalidity or unenforceability without invalidating or
rendering unenforceable the remaining terms and provisions of this Agreement or the
application of such terms and provisions to circumstances other than those as to which it
is held invalid or unenforceable unless an essential purpose of this Agreement would be
defeated by loss of the invalid or unenforceable provision.
18. Entire Agreement; Amendments In Writing; Counterparts. This Agreement
contains the entire understanding of the Parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings, oral and
written, among the Parties with respect to such subject matter. This Agreement may be
amended only by a written instrument executed by the Parties or their successors in
interest. This Agreement may be executed in multiple counterparts, each of which shall
be an original and all of which together shall constitute one agreement.
19. Successors and Assigns; No Third-Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of the Parties and their respective successors and
assigns; provided however, that neither Eden nor Citation shall transfer or assign any of
such Party's rights hereunder by operation of law or otherwise without the prior written
consent of the City and Authority, and any such transfer or assignment without such
consent shall be void. Subject to the immediately preceding sentence, this Agreement is
not intended to benefit, and shall not run to the benefit of or be enforceable by, any other
person or entity other than the Parties and their permitted successors and assigns.
Without limiting the generality ofthe foregoing, the Parties acknowledge that in the event
that the Authority and HAC A consolidate, all references herein to the Authority shall be
construed as references to HACA.
20. No Brokers. Each Party warrants and represents to the other Parties that no
brokers have been retained or consulted in connection with this transaction other than as
disclosed in writing to the other Parties.
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/4 ~ 2.-1
21. Captions. The captions of the sections and articles of this Agreement are for
convenience only and are not intended to affect the interpretation or construction of the
provisions hereof.
22. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to principles of conflicts of law.
SIGNATURES ON FOLLOWING PAGE.
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/5' I
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF DUBLIN
By:
Janet Lockhart, Mayor
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
HOUSING AUTHORITY OF
THE CITY OF DUBLIN
By:
Christine Gouig, Executive Director
HOUSING AUTHORITY OF
THE COUNTY OF ALAMEDA
By:
Christine Gouig, Executive Director
EDEN HOUSING, INC.,
a California nonprofit public benefit corporation
By:
Name:
Its:
SCS DEVELOPMENT COMPANY,
a California corporation
By:
Name:
Its:
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Exhibit A
PROPERTY
(Attach legal description of Property.)
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J 766 Z/
Title No. OS-59100025-JK
Locate No. CACTI7701-7701-5591-0059100025
LEGAL DESCRIPTION
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF DUBLIN, COUNlY OF ALAMEDA,
STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Commencing at the point of intersection of the center line of Dougherty Road (also known as County Road
No. 4038) and the Northeasterly line of the Southern Pacific Railroad Company right-of-way (300 feet wide),
said point of commencement also being at the Southwesterly corner of Camp Parks, a 3636.1212 acre parcel
of land acquired by the United States of America; thence running north 010 13' 02" East, along the center line
of Dougherty Road 69.47 feet to the True Point of Beginning of the parcel of land to be described; thence
from said True Point of Beginning, Northwesterly along the arc of an 11,259.19 foot radius curve, concave
northerly (radially distant 50 feet Northeasterly from the Northeasterly curved right-of-way line of said
Southern Pacific Railroad Company), whose center bears north 450 18' 12.2" east through a central angle of
80 11' 34.6" an arc distance of 1609.99 feet to a point on the Northerly bank of Alamo Creek; thence along
said northerly, westerly and easterly banks of Alamo Creek, the following courses and distances: north 640 32'
46" east, 41.20 feet; south 880 57' 14" east, 198.00 feet; north 810 32' 46" east, 174.90 feet; north 19057'
14" west 66.00 feet; north 570 57' 14" west, 122.10 feet; north 17002' 46" east, crossing said Alamo Creek, a
distance of 455.40 feet to a point on the easterly bank of said Alamo Creek thence south 880 27' 14" east,
33.00 feet; thence North 450 02' 46" east, along the easterly bank of Alamo Creek, 112.20 feet; thence north
22032' 46" east 158.40 feet; thence north 80 47' 46" east, 244.20 feet; thence north 490 27' 14" west 155.10
feet; thence north 19027' 14" west, 56.89 feet; thence south 890 16' 58" east, 609.36 feet to a point in the
center line of said Dougherty Road; thence from said point south 010 13' 02" west, along the said center line
2436.80 feet to the True Point of Beginning.
Excepting therefrom that portion deeded to the County of Alameda by deed dated March 12, 1981 and
recorded April 15, 1981, Series No. 81-60663, Alameda County Records.
Also excepting therefrom that portion deeded to the City of Dublin by deed dated October 24, 1982 and
recorded December 19, 1983, Series No. 83-237916, Alameda County Records.
Also excepting therefrom all uranium, thorium, and all other materials determined pursuant to Section 5(b)(1)
of the Atomic Energy Act of 1946 (60 Stat. 761) to be peculiarly essential to the production of fissionable
material, contained, in whatever concentration, in deposits in the lands as reserved in the deed by United
States of America recorded April 28, 1954, Series No. AJ 35346, Book 7307 OR, Page 437, Alameda County
Records.
Also excepting therefrom, that portion deeded to Park Sierra LLC, a California limited liability company, by
Deed dated June 15, 1998 and recorded June 16, 1998, Instrument No. 98202956, Alameda County Records.
Also excepting therefrom, that portion deeded to Alameda County Flood Control and Water Conservation
District, by Deed dated October 24,2003 and recorded November 26,2003, Series No. 2003698997, Alameda
County Records.
APN: 941-0007-001-007
ClTA Preliminary Report Form (11/17/04)
/B 1
Exhibit B
PROJECT MILESTONES AND DEVELOPER PAYMENT SCHEDULE
(All dates set forth below are preliminary and are subject to change as the planning, entitlement, and
relocation process moves forward)
Proiect Milestone Date Developer Payments
Dublin Housing Authority (DHA) March 6, 2007 NA
Approves Contract for Relocation
Consultant
DHA and April 3, 2007 NA
Dublin City Council Approve ENRA
Dublin City Council Approves
Contract for Environmental
Consultant
DHA Authorizes Developer to
Commence Planning Applications and
Access the Site for Planning and
Feasibility Studies
Housing Authority of the County of April 11, 2007 NA
Alameda Approves ENRA
Execution of ENRA by all Parties April 12, 2007 City to establish cost recovery
account using $50,000 Initial
Deposit from Developer to cover
ongoing legal and consulting costs of
City and DHA ("Transactional
Costs '').
Developers to establish separate cost
recovery account with Planning
Department to cover ongoing costs
associated with planning,
entitlement, and environmental
review for the project ("Planning
Costs).
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/q I
Issuance of Notice to Proceed for April 12, 2007 City/Authority to bill Eden as costs
preparation of CEQA & NEP A are incurred.
Clearance Documents (anticipate 6-8
months for completion of
environmental review process)
Begin Arroyo Vista Resident and May 1, 2007
Neighbor Information Meetings
DHA Submits of Disposition May 3, 2007 City/Authority to bill Eden as costs
Application to HUD are incurred.
Approval and Execution of July 3, 2007 City/Authority to bill Eden as costs
Disposition and Development are incurred.
Agreement (or other binding
agreement setting forth all transaction
terms for the proj ect)
City of Dublin Approval of Tentative February 1, 2008 Citation to pay Second Purchase
Maps, PD zoning, General Plan Deposit of $1. 75 million (to be
Amendment, & other entitlements for credited against purchase price at
the proj ect COE)
HUD Approval of Disposition April 2008 Citation to pay Third Purchase
Application Deposit of $2.2 million (to be
credited against purchase price at
COE)
Developers to Submit Improvement May 2008 Developers to pay all required Plan
Plans/Final Map to City Check Fees & other costs associated
w/processing Final Maps &
Improvement Plans
DHA/HACA to Commence Resident May 2008 NA
Relocation (anticipate 6-9 months to
complete relocation)
Eden to Submit HUD 202 Application May 2008 NA
DHA/HACA Complete Resident November 2008 NA
Relocation
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Closing: HUD Approval of all November 2008 Citation to deliver Final Payment of
Disposition Documents; Release of $8 million into escrow (to be released
Declaration of Trust; Property upon closing of Eden's Construction
Transfer to Eden and Citation Loans).
Developer to reimburse City/DHA
for balance of Transactional Costs
above initial $250,000 (if any) up to
aggregate $500,000 maximum.
Consolidate DHA and HACA (after November 2008 NA
HUD Closing and Transfer of
Property)
City to Approve Improvement Plans October/November Developers to post improvement
& Final Maps 2008 bonds; pay all regular plan check
fees and other costs associated
w/final map approval & recordation
Developers Start Site Demolition & November 2008 NA
Grading
Developers Complete Preliminary May/June 2009 NA
Site Improvements
Citation to Begin Model Home May/June 2009 Developers to pay all regular City
Construction (Market Units) planning & plan check fees
Eden to Submit Tax Exempt Bond Summer/Fall 2009 NA
and/or Tax Credit Application(s)
Eden to Close on Construction Fall 2009 Citation's $8 million equity
Loan(s) for Affordable Housing contribution to be released to Eden
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Exhibit C
ANTICIPATED PLANNING ENTITLEMENTS
1. Environmental Impact Report
2. Environmental Impact Statement (or other applicable NEP A document)
3. General Plan Amendment
4. Rezoning
5. Parcel Map
6. Subdivision Map
7. Site Development Review
8. Annexation into Dublin San Ramon Services District
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